Alona Brown’s tort suit was dismissed on the grounds that she failed to timely serve the defendant after the running of the statute of limitation. The uninsured motorist carrier raised this defense in response to Brown’s failure to serve. Brown appeals, contending that she diligently attempted to locate the defendant and that her motion to serve by publication should have been granted.
On October 7,1998, five days before the running of the statute of limitation, Brown, for herself and as guardian of a minor, brought suit against Alton Snow, Jr. for injuries arising out of a car accident. Although Brown served State Farm Mutual Automobile Insurance Company, her uninsured motorist carrier, Brown has never served Snow. On January 19, 1999, State Farm filed a motion to dismiss. Over one month later, on February 22, Brown filed a motion requesting permission for service by publication. On April 9, the trial court granted State Farm’s motion to dismiss.
1. As we have previously held,
[w]here service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.
(Citation and punctuation omitted.)
Forsyth v. Brazil,
When the defendant has not been served, on an appropriate motion the trial judge must examine the facts and determine whether the plaintiff was guilty of laches in failing to serve the defendant in a diligent manner.
McCrary v. Preferred Risk Mut. Ins. Co.,
In
Pickens v. Nationwide &c. Ins. Co.,
The evidence in this case reveals that Brown’s initial effort to serve the defendant at the time of the complaint failed. After three months passed, State Farm filed a motion to dismiss, and Brown did not move for service by publication for another month after the motion. Brown’s attorney submitted an affidavit describing in general his efforts to locate Snow. But the affidavit contains only vague statements about his efforts, and it does not provide dates or other specifics sufficient to gauge his effort.
On the day of the hearing on State Farm’s motion to dismiss, Brown submitted affidavits from Jonas Berwick, an employee of a “national locator service,” and Douglas E. Dreeman, a permanently appointed DeKalb County process server. Berwick’s affidavit states in conclusory fashion that he diligently but unsuccessfully attempted to locate Snow’s residence using computer databases. Dreeman stated that he was unsuccessful in attempting to serve the defendant on one day in January 1999 and another in February. He also investigated leads on two other occasions to no avail. But more importantly, all of Dreeman’s efforts occurred after State Farm filed its motion to dismiss.
Because there is no evidence of any effort to locate or serve Snow for three months between the initial failed attempt and State Farm’s motion to dismiss, we cannot say the trial court abused its discretion in finding a lack of due diligence.
2. Brown also contends that it is against public policy to allow the uninsured motorist carrier to move to dismiss the action based on a failure to serve the defendant when the action potentially involves that carrier and when the carrier has been properly served.
The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.
(Citations and punctuation omitted; emphasis supplied.)
Smith,
It is true that a known motorist is deemed uninsured when he cannot be personally served.
Smith,
Judgment affirmed.