Atlanta Casualty Company brought a declaratory judgment action against its insured, Dimple B. Thomas, for not giving it notice of service of a renewal action in tort against her brought by Laura A. Maestas, which tort action resulted in a default judgment in excess of the minimum policy limits. Atlanta Casualty contended that it gave a reservation of rights notice to Thomas; however, there is no copy of any such notice in the record. Atlanta Casualty’s declaratory judgment action stated “that it is uncertain as to whether that policy affords coverage for the judgment entered against Thomas in the Renewal Action.” Thomas counterclaimed against Atlanta Casualty for bad faith in failing to settle the case for policy limits, which exposed her to a judgment in excess of the policy limits. Atlanta Casualty moved for summary judgment as to its declaratory judgment action and on Thomas’ counterclaim which the trial court granted. On September 27, 2000, Thomas filed a motion to dismiss the declaratory judgment action based upon Morgan v. Guaranty National Companies, 268 Ga. 343 489 SE2d 803 1997. After several continuances, the trial court set the motions for hearing at 9:30 am on January 3, 2001. At 8:30 am, prior to the hearing at 9:30 am on January 3, 2001, Atlanta Casualty dismissed its declaratory action with prejudice and served notice to Thomas by depositing a copy in the mail on January 3, 2001. The trial court went ahead and heard Atlanta Casualty’s motion for summary judgment on all issues, ignoring in its order the voluntary dismissal, if it had notice. On January 22, 2001, the order granting the motion was filed after being prepared by the plaintiff, which indicated that the trial court had ruled in open court for the plaintiff and had directed the order’s preparation by the prevaling party in open court on January 3, 2001 at the conclusion of the hearing and prior to the defendant’s receipt of the dismissal in the mail as indicated by the certificate of service.
For the voluntary dismissal to be effective, the opposite party must be served with it or has actual notice of the dismissal; until such notice, the dismissal is dormant. Jones v. Jones, 230 Ga. 738, 739-740 2 199 SE2d 239 1973. When plaintiff’s counsel announces to the trial court the intent to voluntarly dismiss, signed a voluntary dismissal that day, and served upon the defense by mail, the voluntary dismissal does not occurr until it is filed with the clerk and received by defense counsel. Jones v. Jones, supra at 739-740; Carter v. Digby, 244 Ga. App. 217 535 SE2d 286 2000. The oral announcement of a ruling on summary judgment in open court constitutes a verdict, which prevents a voluntary dismissal taking effect. OCGA § 9-11-41 a; Guillebeau v. Yeargin, 254 Ga. 490, 491-492 1 330 SE2d 585 1985. In this case, if the dismissal had been effective, then the trial court lacked subject matter jurisdiction to grant summary judgment on the declaratory judgment. Lakes v. Marriott Corp., 264 Ga. 475, 478 448 SE2d 203 1994; Lotman v. Adamson Contracting, Inc., 219 Ga. App. 898 467 SE2d 224 1996; Smith v. Memorial Med. Ctr., Inc., 208 Ga. App. 26, 28 1 430 SE2d 57 1993.
