South v. Montoya

Plaintiff's substitute service on former resident's automobile insurer was not proper service since it did not comply with the statutory requirements of O.C.G.A. § 9-11-4 d and Georgia's Long Arm Statute.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

On October 2, 1995, Beth Denton South was in a collision with Theresa Montoya in Chatham County, Georgia, where Montoya, the tortfeasor, lived, and South filed suit on October 2, 1997, against her. Montoya had previously moved to North Carolina, however, and could not be found for service. South was unable to personally serve Montoya in North Carolina under the Georgia Long Arm Statute, OCGA § 9-10-90 et seq., because she never learned Montoya’s address. South obtained an order to serve Integon Insurance, Montoya’s insurer, by substituted service in North Carolina as service on Montoya. Montoya answered and raised as defenses lack of service of process, personal jurisdiction, and statute of limitations. Montoya also filed a motion to dismiss for lack of service, lack of diligence, and statute of limitations. On October 1, 1999, the trial court entered an order dismissing the complaint under OCGA § 9-11-12 b without indication whether the dismissal was in abatement under OCGA § 9-11-12 b 2, 4 and 5, or was on the merits under OCGA § 9-11-12 b 6 in bar.

South’s sole enumeration of error is that the trial court erred in dismissing the complaint. We do not fully agree. Since removal of a defendant from the state tolls the running of the statute of limitations under OCGA § 9-3-94, if the trial court dismissed the action on the merits, then it was error; also, lacking personal jurisdiction, the trial court could not reach the merits of the case. However, if the trial court dismissed the case under OCGA § 9-11-12 b 2, 4, and 5 as a matter in abatement without prejudice, then this would be a proper disposition of the case.

South v. Montoya

Plaintiff's substitute service on former resident's automobile insurer was not proper service since it did not comply with the statutory requirements of O.C.G.A. § 9-11-4 d and Georgia's Long Arm Statute.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report