*1 PILOT FIRE & JEFFERSON CASUALTY COMPANY v. BURGER et al. Deen, Presiding Judge. 5, 1981,

On appellees, October Burger, Sharon and David were involved in an They automobile collision with William Beavers. 22, commenced negligence September this action Beavers on 1982, seeking damages injuries and loss of consortium. When perfected Beavers, service could not be on it was discovered 10, that he had September 22, 1983, died on March 1982. On G. Payne Cleveland granted permanent was letters of administration for September 27, 1983, Beavers’ estate. On the Burgers amended and complaint restated their to name the administrator as defend- ant, Payne and service on perfected. as administrator was After dis- covering that collision, Beavers had been uninsured at the time of the 28, 1983, on December the Burgers served Jefferson Pilot Fire and (Jefferson Pilot) Casualty Company as an uninsured motorist carrier pursuant (d). to OCGA 33-7-11 §

Jefferson Pilot answered the and asserted the defense of statute of limitations. Both Jefferson Pilot Burgers and the moved partial summary judgment issue, on that and this appeal followed from the trial grant court’s Burgers’ motion and denial of Jef- ferson Pilot’s motion. Held:

In a tort case in which an uninsured motorist carrier is an inter- party, ested the insurer must be served within the time allowed law for valid the defendant the action. v. Col- lum, 236 Ga. 582 OCGA 9-3-93 provides that time between the person death of a “[t]he and the commencement of representation upon his . . estate . shall not be counted against credi- estate, tors of his provided that such time does not years. exceed five . . .” OCGA 9-3-98 renders OCGA 9-3-93 to tort ac- tions. Accordingly, under the above authority, the trial court correctly found that the statute of limitations had been tolled for over 18 (from 10, months 1982, March September 22, 1982), until and that Jefferson Pilot timely was served. Judgment Banke, J.,C. McMurray, J., P. Pope and affirmed.

Benham, JJ., concur. McMurray, J., Carley JJ., P. Pope, concur specially. Birdsong, J., Sognier P. Beasley, JJ., dissent.

Pope, Judge, concurring specially.

I concur fully in Presiding Judge opinion. Deen’s I write to re- spond to the point dissent’s central that no reason exists for tolling the statute of limitation in regard to the motorist carrier the event of the death of the uninsured motorist before said motorist is served. The unarticulated assumption underlying the dissent’s rea- or had means to dis- case knew soning is that motorist before service as an uninsured defendant’s status cover the might to me that one It seems clear perfected on the defendant. suit, especially where prior fact be able to discover this not know or dis- has commenced and only It is after suit defendant has died. defendant’s status as many plaintiffs discover the covery is made that *2 motorist, necessity bringing of the unin- and thus the an uninsured in the appears suit. Such a situation carrier into the sured motorist instant case. out, if defendant is alive and available points

As dissent the the served, plaintiff the service on the carrier because to be late two-year of the defendant within the discover the uninsured status sufficient to allow relation back ordinarily limitation is not statute of the defend- the date of service on original of service on the carrier to (284 Wraggs, 596 Ins. Co. v. See Commercial Union ant. dead, (1981). However, until some- where the defendant affairs, has no tend to the defendant’s appointed one is coverage existed or not. means to ascertain whether insurance reliable provided by OCGA 9-3-93 recognized This is the situation §§ public, legislature the protection motoring For the of the and 9-3-98. hybrid, The statute creates a enacted the uninsured motorist statute. carrier, entities, and the separate legal the uninsured motorist joining in the case of Siamese purposes joinder, for the of the statute. The twins, the individual respecting is unnatural and unwelcome. While In joinder. cannot the fact of joined, ignore nature of the so we bar, policy affording protection case at is served and the of justice the by recognizing furthered to those harmed uninsured motorists is limitation as an uninsured that the of the statute of motorist must in the event of the death of the uninsured motorist necessarily to the uninsured motorist carrier. regard toll the statute McMurray Presiding Judge

I am authorized to state that Carley join special in this concurrence. Judge Judge, dissenting. Beasley, opinion wholly does seem to be consistent with

The court’s Georgia Supreme and the Court holdings the this court (224 37), aff’d, Collum, Ga. 582 Vaughn controlling and relies majority finds holding that the insur- language Supreme Court upon “within in an uninsured motorist claim should be served ance carrier in the service the time allowed law for valid defendant However, supplied.) ap- it does not (Emphasis case.” 236 Ga. 582-83. simply out a test which pear Supreme Court meant to set carrier, whether, upon the perfected at the time service is asks motorist under upon perfected could still be uninsured fact, or circumstances of attributes law. As a mátter of affecting liability as not regarded the uninsured motorist were Vigilant Wilkinson the cárrier. The court cited 167) (1976), bankruptcy of the uninsured wherein the support would the insurer. Wilkinson motorist did not relieve interests in the separate identities and proposition that the two the lawsuit would be re- Vaughn simply announced lawsuit. to both the uninsured motorist garded as a tort action with for the in- plaintiff’s even the ultimate basis Inasmuch as the liability plaintiff. surer’s was its contract with the alleges neg- insurer is “the real interest” when the motorist, ligence by geared the uninsured the insurer’s defense will be under the con- meeting challenge, asserting non-coverage limitations, the tort statute of tract. Thus the Court reasoned that motorist, apply as well to the applied to the uninsured would company. insurance But this was because it was a tort action rather action, per- than a contract It was the nature of the not the action. sonal circumstancés motorist that con- applied. emphasiz- which statute The court was trolled of limitations *3 ing party that since the is the in a insurance carrier real interest motorist, against case an uninsured and since the carrier and the un- insured in investigating motorist have identical interests and defend- claim, ing apply the tort the tort should statute of limitations as to against such claims both the and the carrier. defendant/motorist Thus the holding. use of the definite article in the court’s Appeals

The Court of held in that an insurance carrier could avail itself of the a though statute limitations “as defend- (Emphasis ant.” supplied.) interpretation at 679. This is (d) statutory requirement consistent with the of OCGA 33-7-11 the carrier though company be served notice “as the insurance were actually party (Emphasis supplied.) named as a defendant. ...” The Supreme interpretation by Court did not disturb this its use of the definite separate point. article to establish a question i.e.,

The presented present appeal, in the whether the tolling of a against statute of limitations as the estate of an uninsured carrier, motorist is also tolled as the insurance is not resolved by Vaughn requiring analysis. but is a matter further

Although the uninsured motorist the insurance carrier have case, common in investigating defending they interests the tort are not identical. example, may any For while carrier assert de- .the motorist, fense available may to the uninsured it also assert defenses in challenging to it its status as defendant. State Farm Mut. Glover, (1966); Auto. Co. v. (1967). English, Strickland v. Not in- distinct, they strangers. The but also are parties only are the two In the defendant. plaintiff, not contracted with the company surance carrier, record that case, evidence there is no of the acci- insurer, any notice whatsoever plaintiffs’ is own which years two after it until well over is basis of this suit dent which know, nor any Nor is there evidence occurred. such as at court or investigation, through discovered could have Beavers was an unin- Safety, that Department of Public through the driving under the influence that he was They allege motorist. sured at the time of the traffic violations and committed other alcohol collision. running of the statute operates suspend to

OCGA 9-3-93 estate. It is of the decedent’s against claims of creditors limitations 9-3-98. by operation of OCGA The applicable made to tort claims per- could not protect plaintiffs who purpose of the two statutes is to resulting his death and defendant because of fect a But this hiatus re- appointment of an administrator. gap before excuse for provide an only and would lates to that defendant reason service is not made because the timely notifying the He is dead it be done. is because cannot earlier on the tortfeasor tolling for the statute represent him. The reason there is no one to carrier, was existent and available all exist as to the does not specific, applying is to remedy provided the statute along. is no reason to extend this “of estate.” There creditors [decedent’s] case, or, other abeyance relief as to other defendants impediment does not exist. This in interest with to whom the insurer, who tolling is detrimental particularly is true because it in time from the occurrence will thereby is even further removed Besides, statute relates to the time investigate. tolling bound notify- not to time bringing serving actions and (d). The carrier is not 33-7-11 ing required the carrier as OCGA § concerned; only served it is to be a defendant insofar as the notice defendant.” actually “as were named as [it] held, a different previously construing This has court not be tolled as statute, statute of limitations will that the *4 in statute itself. In specified implied tolling or the against a 374) (297 (1982), Manis, 460 SE2d the Speer, Inc. v. 164 Ga. statute of limita- defendant before the plaintiff original served the the action. After the voluntarily run then dismissed tions had dismissal, plaintiff the run, months of the statute had but within six permitted by in the same court against refiled the same defendant (OCGA 9-2-61). later, attempted months he Ann. 3-808 Four Code § § court, This in new defendant. his so as to add a amend summary judg- defendant’s motion for reversing the denial of the new to the date of the ment, did not relate back held that the amendment (c) Ann. 81A-115 that Code plaintiff argued original pleading. The § to the (OCGA 9-11-15) relates back the amendment provides § (Code tolling statute by operation of the and that original pleading, 9-2-61)) the com- (OCGA original pleading the Ann. 3-808 § § In rejecting had run. of limitations plaint filed before the statute true that 81A-115 said: “While it is the court plaintiff’s argument, § limitation’ (c) of the statute of impact ameliorate the is intended ‘to of limi- to render statutes accept that it was intended ... we do not Thus, may not plaintiff toothless.” Id. at completely tation tolling stat- voluntary dismissal interaction of the avail himself of the (Code 3-808) back of amend- the statute on relation ute Ann. § (Code 81A-115) limita- in make the statute of Ann. order to ments § original served at the time against toll as a defendant not tions (313 Wagner Casey, 169 Ga. complaint. Accord (1984). (229 Bros. &c. 139 Ga.

In Cornwell v. Williams 551) (1976), voluntarily dismissed an action plaintiff the 9-2-61). (OCGA In his renewed pursuant to Code Ann. 3-808 action, however, defendant. the named an additional cause limitation as a properly new could assert the statute of defendant bar; against apply to the claim asserted tolling statute separate, late- imputed him. In order for a statute to be to a identity of served there must a substantial both (266 Id.; Jones, App. 585 claim and the defendant. Sumlin v. 153 Ga. Univ., (1980); Emory Sheldon & Co. v. 497) (1937). SE in mo-

Although case the claim the uninsured claim, yet torist and the carrier is identical in that it is the tort two entities themselves are not identical and have somewhat different Vaughn, supra, interests. That much was made clear in apply court held doctrine of relation back does uninsured motorist cases which the carrier is served after stat- run, mo- ute of limitations has even the defendant/uninsured statutory period. torist was served The United States within Circuit, Appeals refusing Court of for the Fifth while to hold that the apply doctrine of relation in an uninsured motorist back can never case, correctly interpreted Vaughn upon to mean that late service an the service motorist carrier does not relate back to those cases which no effort is made to motorist/defendant Wright, serve the carrier within the White v. 566 F2d time allowed. (1978); Wraggs, accord Commercial Union Co. App. 596 9-11-15,

OCGA relation back of general concerning statute parties, requires amendments as to addition or substitution of occurrence, or original the amended claim relate to the transaction *5 (1) in has received brought be amendment “the to institution of the action that he will not such notice of the the merits . . .” Id. maintaining in his defense on prejudiced White, they Vaughn, and OCGA 9-11-15 significance The of case, legislature is that the courts and the have pertain present to the identify parties insurers with served before ex- refused to late-served either a “substantial iden- piration of the statute of limitations absent tity parties” of or of notice to the late-served insurer some form defending in on the mer- any possible prejudice order to eliminate very provide limitation final- purpose its. of statutes of “[T]he [is] Musgrove, Farm Bureau Mut. Ins. Co. v. ity litigation. See Ga. (1) (320 (1984).” Bryant Allstate Ins. 753) (1985). 254 Ga. 328

Where, case, essentially strangers as in the are notify company late-served insurance and there was no effort to statute, protec- it entitled to the law’s prior running is tion stale claims. process to service of underlying principle with due on to exhibit it. OCGA 9-

diligence, and burden is (c). 810) (1985). Johns, 11-4 Siler v. I posture summary judgment,

This case is do not believe the record demonstrates are entitled to sum- mary judgment process subject on the of service of on their party against they City Fayetteville whom to recover. seek (2) (318 Fayette County,

I Presiding Judge Birdsong am authorized to state that Judge Sognier join in this dissent. 18,

Decided October Hull, D. appellant. Ward Barnes, Perren, III,

Roy Payne E. John T. G. Cleveland appellees. THE

70387. WHITFIELD v. STATE. (336 SE2d Judge. Beasley, jury robbery

Whitfield was tried and sen- and convicted years imprisonment. appeals asserting tenced to He fifteen photo- trial the results of a admitting court erred into evidence graphic lineup lineup “suggestive because the and conducive irreparable mistaken identification.” pretrial

The witness who made the identification selected Whit-