This is аn interlocutory appeal of the trial court’s order denying appellant’s motion to dismiss the uninsured motorist carrier, or in the alternative, motion for summary judgment.
Appellant’s motion alleged insufficient service of process upon the uninsured motorist and itself as uninsured motorist carrier.
Appellee’s suit was for injuries sustained at some point during two successive automobile collisions. On April 7, 1986, appelleе’s car was struck by uninsured motorist Tate. While appellee and Tate were discussing the accident, a car driven by defendant Owen struck appellee.
Appellee initiated suit on April 6, 1988; one day before the two-year statute of limitation expired. On April 11, 1988, appellee obtained personal service of process on Owen. However, Tate apparently had departed the arеa and could not be found. An affidavit in the record reflects that appellee employed a private investigator to locate Tate, but that as of July 13, 1989, investigative efforts had not been successful. The affidavit, although listing certain action taken by the investigators and asserting that appellee’s attorneys have made inquiry as to whether the investigator has located Tate, fails to list the dates or the frequencies of such actions and inquiries.
In denying the motion, the trial court entered certain findings of fact and conclusions of law on July 14, 1989. Among those pertinent findings of fact were that Tate had never been personally served and has never been served by publication; that appellant was served on April 28, 1988; and, that appellee filed an affidavit from the investigator who generally stated he had tried to find Tate without success and that investigation continues. The trial court, inter alia, reached the legal conclusions that the failure of appellee to serve defendant Tate within 463 days after the expiration of the statute of limitation, either personally or by publication, does not require dismissal of either the defendant Tate or the uninsured motorist carrier; and, that “[l]ack of service to this date [July 14, 1989] does not matter.” Held:
The trial record reveals that the trial court apparently was laboring under the misapprehension that lack of service on the uninsured motorist was not required as of the date of its order, on the basis that service on the uninsured motorist was not a cоndition precedent to maintaining a suit against the uninsured motorist carrier.
*825 We disagree and find that at the time the order denying appellаnt’s motion to dismiss was entered, appellee had not fulfilled the statutory condition precedent of perfected service against the missing uninsured motorist tortfeasor Tate.
Clearly appellee could have proceeded to seek the trial court’s authorization to serve the missing tоrtfeasor by publication. See generally OCGA § 33-7-11 (e);
Wentworth v. Fireman’s Fund &c. Ins.
Co.,
In
Chitwood v. Southern Gen. Ins. Co.,
In a four-judge special concurrence, in Chitwood, it was further noted that although the plaintiffs were aware that рersonal service on the uninsured motorist was inadequate, they did not initiate service by publication as set forth in OCGA § 33-7-11 (e). Id. at 702. The concurring judges then concluded that “[djespite the unavailability of the known tortfeasor, the insured cannot proceed directly against the insurer but instead, in order to pursue his claim against his own insurer, must obtain a nominal judgment either by a John Doe proceeding or by means of service by publication, so as to fulfill the statutory condition prеcedent.” (Emphasis supplied.) Id. at 703.
Moreover, “the filing of an answer [and motion to dismiss, or in the alternative, a motion for summary judgment] by Cotton States in its own name did not by itself eliminate the requirement that a judgment first be obtained against [the uninsured motorist].” See
Jones v. Cotton States Mut. Ins. Co.,
Accordingly, we conclude that the trial court erred in holding that lack of service of process upon the uninsured motorist did not *826 matter.
*826
Appellee, however, argues that since it finally obtained personal service of рrocess on the uninsured motorist on July 24, 1989, it no longer was required to effect service by publication. We agree that an uninsured motorist neеd not be both personally served and served by publication. However, “[w]here service is made after the expiration of the . . . statutе 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.’ ” (Emphasis supplied.)
Forsyth v. Brazil,
Appellee argues that the trial court held that she acted with due diligence in attempting to perfect service. We disagree. Review of the trial court’s order reflects that it made no express finding that appellee acted diligently. Rathеr, the trial court predicated its ruling on its erroneous determination that no service of process was necessary.
Appellеe’s brief makes reference to an affidavit that is attached thereto as Exhibit “A.” No such document is attached. But, in any event, a brief оr an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.
Johnson v. Wade,
From a cursory examination of the state of the reсord before us, it would appear that appellee
currently
has failed to meet its burden of establishing that it has acted reasonably and with due diligence in this matter — particularly, in view of the lapse of time involved in this case and the very general nature of the affidavit of thе investigator employed by appellee which fails to establish the dates and frequencies of the acts taken to find Tate. Compare
Deal v. Rust Engineering Co.,
Judgment reversed and case remanded with direction.