Durrah v. State Farm Fire & Casualty Co.
312 Ga. App. 49
Ga. Ct. App.2011Background
- Durrah filed suit for personal injuries against Hernandez and State Farm after a May 11, 2006 car accident and served State Farm; Hernandez was served by publication because she could not be located.
- Durrah voluntarily dismissed the original complaint without prejudice and refiled against Hernandez and State Farm within six months, but after the statute of limitations had expired.
- In the renewal action, Durrah personally served State Farm but did not serve Hernandez by any means.
- The trial court dismissed Hernandez from the renewal action for lack of personal service in the original action and dismissed the renewal action against State Farm for failure to obtain a judgment against Hernandez, a condition precedent.
- The Court of Appeals affirmed, holding the renewal statute requires a valid prior action and a judgment against the uninsured motorist; service by publication cannot confer personal jurisdiction or substitute for a required judgment.
- The court also declined Durrah’s argument that the 2006 amendment to OCGA § 33-7-11 eliminated the judgment prerequisite.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication defeats renewal viability against the UM carrier. | Durrah argues publication suffices for nominal judgment against Hernandez. | State Farm/Hernandez contend lack of personal service voids renewal rights. | Renewal action dismissed; publication cannot substitute for personal service. |
| Whether failure to obtain a judgment against the uninsured motorist precludes renewal against the UM carrier. | Durrah contends the 2006 amendment removed the judgment prerequisite. | Defendants argue the judgment prerequisite remains valid. | Judgment against uninsured motorist remains a prerequisite; renewal barred. |
| Whether the 2006 amendment to OCGA § 33-7-11 abolished the judgment requirement. | Durrah asserts amendment eliminates the need for a judgment. | Defendants maintain the amendment does not negate the longstanding judgment rule. | Amendment does not abrogate the judgment requirement. |
Key Cases Cited
- Cohen v. Allstate Ins. Co., 277 Ga.App. 437 (Ga. Ct. App. 2006) (voids renewal when no judgment against UM is obtained due to lack of service)
- Costello v. Bothers, 278 Ga.App. 750 (Ga. Ct. App. 2006) (lack of personal service before expiration bars renewal)
- Hawkins v. Wilbanks, 248 Ga.App. 264 (Ga. Ct. App. 2001) (service issues affect renewal viability)
- Brown v. State Farm, etc., Ins. Co., 242 Ga.App. 313 (Ga. Ct. App. 2000) (no judgment against UM precludes renewal)
- State Farm, etc., Ins. Co. v. Noble, 208 Ga.App. 518 (Ga. Ct. App. 1993) (renewal limitations tied to underlying judgment)
- Walker v. Ga. Farm, etc., Ins. Co., 207 Ga.App. 874 (Ga. Ct. App. 1993) (renewal framework linked to underlying liability action)
- Gordon v. Atlanta Cas. Co., 279 Ga. 148 (2005) (pre-2006 interpretation motivating amendment about damages recoverable)
- Dees v. Logan, 282 Ga. 815 (2007) (acknowledges 2006 amendment context and Gordon decision)
- Girtman, 113 Ga.App. 54 (Ga. Ct. App. 1966) (judgments as conclusive among parties; insurer subrogation supports judgment prerequisite)
- Moss v. Cincinnati Ins. Co., 154 Ga.App. 165 (Ga. Ct. App. 1980) (dual track of UM actions but not to supersede judgment prerequisite)