*1 22, 1997. Hunter. Carey, Jr., Emerson Morgan, Attorney, Conroy, Benjamin
J. Tom District Barbara B. Attorneys, First, M. Assistant District
A97A0455. STOUT v. CINCINNATI INSURANCE COMPANY. Blackburn, Carolyn Elva Stout from the trial court’s dismissal of her (Cincin- Company Cincinnati Insurance nati), personal injury her renewal action. For the reasons set below, forth we affirm the trial court’s decision. August injured 10,1992,
On Stout was in an automobile collision August 9, 1994, with a truck. On Wolfe, she filed suit Albert (Darica), Trucking Company truck; driver Darica Wolfe’s employer; Casualty and Heart of Fire America Insurance Com- pany (Heart), Cincinnati, Darica’s insurer. Stout’s uninsured motor- copy complaint ist was not served with a of the summons and (d). § in this action. See OCGA 33-7-11 January obligations Heart’s risks and under its with Darica were transferred to Commonwealth General Insurance (Commonwealth). Company subsequently However, Commonwealth September voluntarily became insolvent in 1995. Stout then dis- having attempted missed suit later, her seven months without ever copy complaint. Cincinnati with of the summons and Three days pursuant § she later filed a renewal action 9-2-61, copy complaint. had Cincinnati served with a of this summons and complaint, Cincinnati answered asserted affirmative defense successfully the statute of moved for dismissal. party In order for a to recover from her uninsured motorist car- (d) provides rier, OCGA 33-7-11 that the carrier must be served copy pleadings prescribed with “a of the action and all thereto ... as by law,” if it as were named a defendant in the action. Service must accomplished “within the time allowed for valid service on the the tort action.” Bohannon v. J. In this the statute of — personal injury limitation for the two nati within that claim Stout asserted was years, attempted and Stout neither served nor to serve Cincin- two-year period required by Bohannon, which we are constrained to follow. Her Cincinnati therefore cannot be maintained. (d), interpreted by
OCGA 33-7-11 our Court in to the uninsured makes available defendant. Bohannon to the defense available the cir- fails to deal with OCGA 33-7-11 fact that becoming insolvent sub- an uninsured motorist cumstance of sequent It is tort, not to address of the but elected the date possible date that to run before the for the statute of limitation *2 an uninsured motorist. tortfeasor becomes injustice rule was effect of the Bohannon
The App. by Judge v. U 223 Ga. Reid Johnson (1) case, he stated that in a SE2d when similar 207 “[fjact cry and, action, out such as for rethinking by pleas produce result, no should Court of the of applicability policy in the cases reflected effect Bohannon is statute of limitation.” The including require every plaintiff, an unin- those never make who claim, motorist carrier sured motorist to serve their uninsured protection, plaintiff that defendant even when the cannot show their meets under OCGA definition of an uninsured motorist plaintiff carrier where If the served the uninsured motorist 33-7-11. motorist, the carrier would enti- the tled to is not an uninsured tortfeasor summary judgment. § 9-11-56; Williams, 168 OCGA Rabun v. (3) App. 467, The additional service Ga. cost to age SE2d plaintiffs
all who seek uninsured motorist cover- never expense carriers who have totally necessity respond to all such cases is wasted premiums higher drivers. result all Where the carrier does not become insolvent or limita- does not otherwise become uninsured until the statute claiming plaintiff run, from tion has then barred benefits plaintiff’s under uninsured motorist because plaintiff being run make claim. limitation had entitled to 416) Vaughn Collum, v. 236 Ga. Uninsured designed provide payment for all sums which legally damages entitled to recover as from the unin- insured 33-7-11; sured motorist. OCGA see State Farm Mut. Auto. Ins. Co. holdings Murphy, 226 Ga. very purpose are inconsistent with the coverage, paid plaintiff uninsured motorist for which the mium. Plaintiffs are therefore of the benefit of their insur- part. ance contract without fault on their pos- “[i]t Court stated in Bohannon would be exception . cases . . it is later deter-
sible formulate [liability] coverage apply. mined does not Such rule plaintiff process time after allow a within a reasonable legally negligent But, motorist is uninsured.
fashioning task is a left (Emphasis legislature supplied.) date, Id. at 163. To has not plaintiffs pay premi- acted, and certain and all who auto insurance all, ums continue to suffer. For the benefit renew Johnson’s legislature call in Reid for the Court to act to address problems resulting existing uninsured motorist law and the cases
Stout contends that her service of Cincinnati in the renewal brings argument Cincinnati into the case. This is without holding merit for two reasons. 33-7-11 and OCGA in Bohannon require that be served within two years under the facts of this case. Inasmuch as Cincinnati was not original served in the action and never been served within the statute of the renewal statute not be to add Cin approximately years cinnati to the one and one-half after the § 9-2-61; Knab, statute of limitation has see Acree App. (1986); see Ludi v. Van (valid (1996) Metre, first proper prerequisite action with service on defendant a ato renewal action). *3 support position The cases Stout cites in of her a do not demand Kilgore, different result. Ga. Farm Bureau Mut. Ins. Co. v. 713) (1995), does not deal the with renewal statute upon supra, which at is issue in Reid, this case. She also relies but distinguishable. plaintiff actually Reid is case, In that the served her dismissing uninsured motorist carrier in her first action refiling present origi- and it as case, a renewal action. Unlike the the merely nal action in Reid was therefore voidable at the time itsof dismissal. Reid therefore not case, does control the outcome of this granted properly and the trial Cincinnati’s motion to I dismiss. fully also concur with the Judgment Pope, fully J., Johnson, J., P. and concur and affirmed.
specially.
Judge,
concurring
specially.
Because of the
the
in
Court
v. Col-
lum,
public claims, as the defenses, as to the tort rights the same enjoys the wisdom seriously quarrel cannot with uninsured motorist. One view, however, the Bohannon decision my In public policy. superior position motorist carrier in a actually places in motorists/defendants uninsured at was insured facts of a defendant presented by during uninsured time the action was commenced but became after of the action but pendency case is still in the had The uninsured motorist/defendant the very expo- released from the carrier been exposed, while effect, therefore Bohannon it contracted to assume. sure the contract of insurance the insured the benefits of carrier windfall. given in “[t]he
As Justice Weltner stated his dissent service the unin- perfect upon should be that a policyholder becoming as reasonably possible sured motorist carrier as soon after aware, means, that there is substantive doubt whatever of an event that adequate existence of Id. at 163 subject become claim.” of the dissent explanation subsequent paragraphs eloquently His satisfy demonstrates that such a rule is both workable and would seeking concerns addressed the statute and decisions public policy assure has the in the as the standing same uninsured motorist.
The decision but states recognizes problem, “fashioning allowing such a rule” service the insurer upon reasonable time after “a task that left to I must dissent, agree pro- with Justice Weltner’s which with the disagrees only for a position General source relief expiration who learns policyholder appropriate *4 is, be, of an limitation that a tortfeasor period all, it courts, motorist. After was the not the who created legislature, problem by interpretation we now confront their of 33-7- OCGA § (d)). Furthermore, (formerly great Code Ann. 56-407.1 of time has since Bohannon period elapsed suggested solution, and the General has not seen fit to address the authority it to be the proper scope judicial issue. believe place injury by correct this situation and the risk by where the of a exactly policyholder, payment mium, insurance, have the issuance of a long is,
contracted it to be on the as Justice Weltner ago suggested. Presiding Judge Pope Judge
amI authorized to state that join Blackburn 22, 1997 Mul
herin. Slaby, Slaby, Jolles, &
Jolles Isaac Richard A. Hagler, Harper, Kelly, Fulcher, Reed, Hanks Scott W.
A96A2413. O’NEALv. THE STATE. possession Buster O’Neal his conviction of cocaine Among with intent enumerations, to distribute. his he claims the granting challenge per- trial emptory court erred the state’s his use against jurors. Georgia strikes McCollum, white See 33) (1992); Kentucky, U. 2348, S. 42 SC 120 LE2d Batson U. S. 79 SC 90 LE2d Recent United States Court and the Court of require Batson us to reverse conviction. upholding objec- 1. O’Neal asserts the court erred the state’s peremptory prospective tion to strikes he used white two jurors. peremp- O’Neal, who African-American, used ten twelve tory panelists. analyzed strikes white trial challenge by requiring explain state’s strikes. to these strikes O’Neal to his step,
Then, in one the trial court determined both the neu- trality credibility proffered peremp- of O’Neal’s reasons for his tory strikes. approach tacitly cases,
In earlier the trial court was approved by appellate courts of this state. See McKibbons v. (1) State, In Jackson v. 699) State, 898-899 however, Georgia specifically disapproved theof method this many analyzing other trial courts had used for a Batson or challenge. McCollum Elem, Court held that Purkett v. 514 U. S. 834) (1995) requires SC 131 LE2d the trial court to applied three-part peremptory establish, on the record, that test to a party’s claim of discrimination in the use strikes. party challenging making First, the strike has burden of prima showing proponent facie of discrimination. The of the strike