Reconsideration denied December 11, 2014
Service of process. Fulton Superior Court. Before Judge Russell.
Eric R. Johnson II, for appellant.
Waldon Adelman Castilla Hiestand & Prout, Jonathan M. Adelman, for appellee.
BOGGS, Judge. Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller, Dillard, McFadden, Ray, Branch and McMillian, JJ., concur.
James Giles appeals from the trial court's order granting State Farm Mutual Insurance Company's (" State Farm" ) motion to dismiss based upon Giles' failure to diligently serve his renewal action upon State Farm, his uninsured motorist carrier. For the reasons explained below, we overrule Georgia Court of Appeals cases that incorrectly state how the grace period for service provided by OCGA § 9-11-4 (c) [330 Ga.App. 315] should be calculated. Application of the correct law, as clarified by this opinion, requires us to reverse the trial court's order of dismissal.
The record shows that this case arises out of an automobile accident that occurred on June 3, 2005. On May 30, 2007, James Giles filed suit in Fulton County Superior Court against John Doe, the operator of a stolen vehicle that collided with Giles' vehicle. The same day, the Fulton County clerk issued a summons for State Farm. State Farm's registered agent was located in Cobb County. The Cobb County sheriff's office received the second original complaint and summons on May 31, 2007, and served State Farm on June 4, 2007. On November 7, 2011, Giles voluntarily dismissed his complaint without prejudice.
On Monday April 30, 2012, Giles filed a renewed complaint pursuant to OCGA § 9-2-61 (c). The clerk issued a summons the same day, and the Cobb County sheriff's office file-stamped receipt of an entry of service form on May 7, 2012. This form states that the sheriff's office served " a copy of the within action and summons" on May 9, 2012.
State Farm moved to dismiss the renewed action on the ground that it was served " after the expiration of the statute of limitations and beyond the six (6) month renewal period." Following a hearing, the trial court granted the motion based upon its conclusion that the five-day grace period for service " runs from the date a plaintiff files an action and receives the summons and complaint from the clerk." As the complaint was served more than five days after the renewal action was filed, the trial court concluded that Giles had the burden of showing due diligence to perfect service as quickly as possible. The trial court also found that the plaintiff is responsible for delivery of the complaint and summons to the sheriff after receipt of the complaint and summons. Based upon Giles' failure to offer an explanation for the delay in delivery of the complaint and summons to the Cobb County Sheriff's Office, the trial court determined that he had failed to meet his burden of showing diligence and granted State Farm's motion to dismiss.
The trial court's decision is premised upon the following legal conclusions: (1) that the person making service refers to the party filing the action, and (2) that the five-day grace period begins to run from the time the complaint is filed and the summons is issued. We must therefore examine each of these issues in turn.
1. The starting point for our analysis is the origin of the five-day grace period for service. In Hilton v. Maddox, Bishop, Hayton Frame ...