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Wilcher v. Smith

The insurer's agreement with plaintiffs' attorney to extend the time for defendant to file his answer did not operate as an extension under O.C.G.A. § 9-11-6 b, because defendant never filed the agreement with the court.

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Four-year-old Dontavius Wilcher was struck by a truck driven by defendant John Edward Smith as he crossed the road to his school bus on the morning of November 20, 1997. Wilcher’s mother, Kathleen Walker, filed suit on his behalf and individually against Smith and seven other defendants on November 13, 1999. Smith notified his insurer, Atlanta Casualty Insurance Company of the suit, and Atlanta Casualty and plaintiffs’ attorney agreed in writing by facsimile to extend the time for Smith to file his answer to January 3, 2000. However, this extension agreement was never filed with the court, and Smith did not file his answer until January 13, 2000.

On May 17, 2002, plaintiffs dismissed the suit against the other defendants and moved for a default judgment against Smith. Smith responded that the agreement between plaintiffs’ attorney and Atlanta Casualty constituted an extension under 9-11-6 b, and since his answer was filed within fifteen days of the extended deadline of January 3, 2000, he was entitled under 9-11-55 a to open default as a matter of right by filing his answer and paying costs. The trial court, citing OCGA § 9-11-6 b, denied the motion for default judgment and allowed Smith to file his answer, but granted plaintiffs a certificate of immediate review. We granted plaintiffs’ application for interlocutory review, and this appeal followed.

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