James Giles v. State Farm Mutual Insurance
330 Ga. App. 314
Ga. Ct. App.2014Background
- Giles filed a renewal action under OCGA § 9-2-61(c) within six months of expiration and service occurred May 9, 2012.
- Original suit against a different operator was filed May 30, 2007; State Farm was served June 4, 2007; case later dismissed without prejudice in 2011.
- Trial court dismissed the renewal action as untimely, holding the five-day grace period runs from filing and receipt by the filer.
- Georgia precedents had mis-stated the grace-period rule; Kilgore and related authorities clarify the rule centers on the server receiving the summons and complaint.
- Court clarifies five-day grace period applies to renewal actions and service within that period relates back to the filing date.
- In this case, service occurred within the five-day grace period, so service related back to the filing date and the renewal action should not be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| How is the five-day grace period calculated? | Giles argues it runs from receipt by the person making service. | State Farm contends the grace period starts at filing or other misinterpreted point. | Grace period runs from receipt by the server; Giles timely within five days. |
| Does timely service within the grace period relate back to the filing date for renewal actions? | Renewal service within five days should relate back to filing to avoid limitations. | Service timing does not relate back unless properly diligent. | Yes; service within the grace period relates back to the filing date. |
Key Cases Cited
- Hilton v. Maddox &c. Contractors, Inc., 125 Ga. App. 423 (1972) (service relates back to filing when timely perfected)
- Kilgore v. Ga. Dep't of Transp., 265 Ga. 836 (1995) (OCGA 9-11-4(c) time frame is for process-server performance, not filing initiation)
- Scoggins v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 408 (1980) (clerks issue summons; clerk's transmission governs service)
- Parker v. Shreve, 244 Ga. App. 350 (2000) (diligence required when service after expiration of limitations, relates back if reasonable)
- Bible v. Hughes, 146 Ga. App. 769 (1978) (earlier restatement of grace-period Rule later corrected)
- Bowman v. United States Life Ins. Co., 167 Ga. App. 673 (1983) (requires diligence in service after filing to insure timely service)