This is an action for damages arising from personal injury and wrongful death resulting from medical malpractice against a number of defendants. Plaintiff Janice Dixon Flemister, individually, as natural guardian and next friend, and as representative of the estate of Antonio Flemister, appeals the grant of summary judgment in favor of one defendant, Mary Hopko, R.N. This summary judgment was based on conclusions that plaintiffs failed to timely serve defendant Hopko with the summons and complaint, that plaintiffs failed to exercise due diligence in attempting service, that the statute of limitation expired, that service upon defendant Hoрko did not relate back to the date the action was filed, and that the action against defendant is time barred. Plaintiffs appeal the grant of summary judgment in favor of defendant Hopko. Held:
1. The first enumeration of error maintains that the state court erred in entering summary judgment after the action had been voluntarily dismissed without prejudice as to defendant Hopko prior to any ruling having been made as to summary judgment. The record contains a dismissal without prejudice of defendant Hopko only, which was filed prior to the scheduled time of a hearing on her motion to dismiss, or in the alternative, for summary judgment. Plaintiffs’ claims against a number of additional defendants remain pending.
2. The remaining issues relate to the belated service of process upon defendant Hopko. “A civil action is commenced by filing a complaint with the court.” OCGA § 9-11-3. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c). . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint fоr the purpose of tolling the statute of limitation. [Cits.]” Bowman v. U. S. Life Ins. Co.,
“If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of lаw. Gulf Oil Corp. v. Sims,
In the case sub judice, the complaint was filed on February 29, 1996. The running of the period of the statute of limitation concluded the following day, March 1, 1996, based on the death of Antonio Flemister on this date two years earlier. On Mаy 29, 1996, defendant Hopko filed an answer raising the defenses of lack of jurisdiction over her person, insufficiency of service of process as regards the service of the complaint and summons uрon her, and the running of the statute of limitation. Nonetheless, defendant Hopko was not served with summons and complaint until April 4, 1997.
In preparing this action for filing and service, plaintiffs sought to ascertain the whereabouts of defendant Hopko by checking the telephone directory for the Atlanta metropolitan area and by calling telephone directory assistance in Georgia for Atlanta, Griffin (where codefendant Care Master Medical Services is located and defendant Hopko worked), Greenville (where codefendant Meriwether County Emergency Medical Services is locаted), Columbus (where defendant Hopko rendered care to the decedent), and Manchester, Georgia. Additionally, directory assistance was asked to check towns near Griffin, Georgia. When these queries did not reveal defendant Hopko’s whereabouts a telephone call was placed to Care Master Medical Services during which a person who is not identified in the record provided information that defendant Hopko no longer worked for them and that they did not know her current address, phone number, or how to reach her.
The affidavit of plaintiffs’ attorney relates that she “sent the service papers to the best address I had for [defendant Hopko], which was Care Master Medical Services.” However,
When plaintiffs shortly thereafter received defendant Hopko’s answer which was not in the form of an answer by special appearance it was assumed by plaintiffs that defendant Hopko had been served even though the answer did raise a defense of insufficiency of service of process as regards service of plaintiffs’ complaint and summons, аnd even though the record does not contain a marshal’s or sheriff’s entry of service showing service upon defendant Hopko. However, we find no authority requiring a defendant not served with process to answer by special appearance. It was sufficient that the defense of lack of service of process was preserved by having been raised in the general answer filed by defendant Hоpko.
Nor may the “boilerplate” language in which the insufficiency of service of process defense was stated in defendant Hopko’s answer serve as the basis for any excuse by plaintiffs for failing to be alerted thereby that service may not have been proper. Insofar as the “boilerplate” defense played a part in excusing the plaintiff’s failure to be alerted in Miller v. Hands, supra, it must be noted that there the “boilerplate” defense operated in tandem with a deputy marshal’s inaccurate return of service to mislead that plaintiff. As there was no misleading return of service in the case sub judice, Miller may be distinguished on the facts.
In May 1996, defendant Hopko learned of this lawsuit when she received a telephone call from a person at codefendant Care Master Medical Services and later reсeived a copy of some suit papers. Based on this occurrence, plaintiffs maintain that it is apparent that codefendant Care Master Medical Services did know of the whereabоuts of defendant Hopko and provided incorrect information to plaintiffs. While plaintiffs argue that defendant Hopko should not be given the benefit of dismissal from the suit due to plaintiffs’ reliance upon incorrect information with which it was provided, there is no evidence suggesting any conspiracy or attempt to evade service on the part of defendant Hopko. Plaintiffs’ argument avoids the true issue of whether plaintiffs diligently sought to determine the whereabouts of defendant Hopko.
Furthermore, in connection with plaintiffs’ query to codefendant Care Master Medical Services, we note that рlaintiffs’ evidence failed to identify the name or function of the person to whom a paralegal spoke. Thus, whether the query was directed to an appropriate person or department is not revealed. Also, defendant Hopko states in her affidavit that she has lived openly and continuously at her present address since March 1995, and is listed in the telephone directory albeit in a town not among those which were checked by plaintiffs.
After the query to Care Master Medical Services was unsuccessful, plaintiffs did not know the whereabouts of defendant Hopko but made no further inquiry. Plaintiffs cite Roberts v. Bienert,
Judgment affirmed.