September 14, 2022 – Partner Nik Makarenko and Associate Davis Lackey won a dismissal on behalf of their client Uninsured Motorist Carrier Southern General Insurance Company in Athens-Clarke County.
This case arose out of a motor vehicle accident that occurred on June 19, 2020. Plaintiff filed suit against the alleged tortfeasor and served her own Uninsured Motorist Carrier , Southern General Insurance Company. Plaintiff made one attempt to serve the Defendant tortfeasor, however, the Athens-Clarke County Sheriff was unable to serve the lawsuit because the address was a trailer park and the summons did not contain a specific lot number. Plaintiff then contends they conducted a Lexis search and was unable to ascertain the correct lot number. However, they indicated someone with the same surname may have been at lot 10. Plaintiff thereafter never made any further attempts at service.
Plaintiff filed a Motion for Service by Publication on January 11, 2022. The Court granted that motion and the publication was run in the Athens Banner Herald. Plaintiffs then turned their attention to pursuing the Uninsured Motorist Carrier. The statute of limitations expired on June 19, 2022. After the publication was run, Plaintiff made no other attempts at service prior to the statute of limitations running.
Mr. Makarenko and Mr. Lackey filed a motion to dismiss on behalf of the Uninsured Motorist Carrier Southern General arguing that Plaintiff failed to meet the requisite level of continuing diligence to locate and serve the Defendant and thus aid service never ripened into the equivalent of personal service and would not be sufficient to move forward with the case against the UM Carrier.
After a hearing, the Court granted the Motion to Dismiss and noted that while diligence does not require that the plaintiff be successful in serving the Defendant, diligence does require that the plaintiff engage in some meaningful effort to locate and serve the defendant. The Court found that after the Order for service by publication was entered, the Plaintiff had not engaged in any meaningful effort to locate and serve the Defendant. Thus, the Plaintiff did not satisfy the requirements of continued diligence under O.C.G.A. 33-7-11(e) and further that because the service on the Defendant had not been properly perfected and the statute of limitations had expired the matter would be dismissed in its entirety.
The case is Peggy Thomas v. Amilcar Mauricio Luna Fuentes
State Court of Athens-Clarke County, CAFN: ST-21-CV-0461