Calhoun v. Government Employees Insurance Co. ( 2009 )

675 S.E.2d 523 (2009)

CALHOUN
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, INC.

No. A08A1689.

Court of Appeals of Georgia.

March 13, 2009.

Veronica Evette Brinson, for appellant.

Chambless, Higdon, Richardson, Katz & Griggs, Mary Mendel Katz, Macon, Karen J. Robertson, for appellee.

PHIPPS, Judge.

Michael Calhoun appeals the superior court's grant of summary judgment to his uninsured/underinsured motorist ("UM") carrier, Government Employees Insurance Company, Inc. (GEICO). Calhoun complains that the court erred in finding that Calhoun did not sufficiently serve process upon GEICO, in finding that a purported release did not reserve his claim against GEICO, and in not holding a hearing before granting summary judgment. Finding no error, we affirm.

1. "The defense of insufficiency of service of process is a plea in abatement and is not properly a basis for a motion for summary judgment."^[1] Thus, although the court granted summary judgment on GEICO's service of process defense, we will treat the grant as a dismissal^[2] and review that decision for abuse of discretion.^[3]

The record shows that on July 31, 2006, Calhoun filed an action against both the driver and the owner of a vehicle involved in an August 2004 accident for damages Calhoun claimed to have sustained as a result of the accident. He did not serve GEICO with this complaint. Before filing the action, however, Calhoun informed GEICO of the accident and discussed with GEICO the possibility that the other vehicle was uninsured or underinsured. On November 20, 2006, during discovery, the vehicle's owner informed Calhoun of the policy limits covering the vehicle, and Calhoun subsequently settled his claims against the owner. On February 20, 2007, Calhoun's counsel sent GEICO a letter stating that Calhoun "[was] not fully compensated and thus his uninsured and underinsured coverage for GEICO [was] now a consideration." On April 10, 2007, Calhoun's counsel sent GEICO a copy of the underlying action through certified mail, and stated in a letter that the vehicle's owner "[was] an underinsured motorist" and that Calhoun "intend[ed] to pursue the underinsured coverage in [his] policy." GEICO subsequently filed an answer in the underlying action, asserting insufficient service of process.

When a person injured in a car accident learns after bringing an action that the vehicle involved was uninsured or underinsured, OCGA § 33-7-11(d) provides, in pertinent part, that

the insurance company issuing the [UM] policy shall be served within either the remainder of the time allowed for valid service on the defendant or 90 days after the date on which the party seeking relief discovered, or in the exercise of due diligence should have discovered, that the vehicle was uninsured or underinsured, whichever period is greater.

OCGA § 33-7-11(d) further requires a plaintiff to serve his UM carrier "as though [it] were actually named as a party defendant." Service of process upon a party defendant "shall be made by delivering a copy of the summons attached to a copy of the complaint" to the defendant,^[4] unless the defendant has waived service in accordance with the provisions of OCGA § 9-11-4.

Calhoun did not serve a copy of his complaint upon GEICO within the time allowed for service upon the defendants^[5] or within 90 days of receiving the discovery responses indicating that the vehicle was underinsured. Thus, he did not satisfy the service requirement of OCGA § 33-7-11(d). Citing Stout v. Cincinnati Ins. Co.,^[6] however, Calhoun contends that he should not be held to the statutory service requirement because GEICO had notice of a potential UM claim and was not prejudiced by the insufficient service of process. Stout held that service of process upon a UM carrier of a renewal action, rather than the initial action, met the requirements of an earlier version of OCGA § 33-7-11(d).^[7] In so holding, Stout noted that service of process of a renewal action upon a UM carrier satisfied the "purpose of OCGA § 33-7-11(d) to provide the [UM carrier] with notice of the pendency of a lawsuit."^[8]Stout, however, adhered to our holding in Bohannon v. Futrell^[9] that service of process under OCGA § 33-7-11(d) is a statutory prerequisite to a UM carrier's liability.^[10]Stout thus does not support Calhoun's position that he needed to show only notice and lack of prejudice to seek UM benefits from GEICO.

The trial court did not err in ruling that Calhoun did not provide sufficient service of process upon GEICO, as required by OCGA § 33-7-11(d).

2. We find no merit in Calhoun's assertion that the court erred by not holding a hearing on GEICO's motion. As discussed in Division 1, supra, GEICO's motion concerning the sufficiency of service of process is properly considered a motion to dismiss, rather than a motion for summary judgment, and the court was not required to hold a hearing on a motion to dismiss.^[11] Moreover, the record shows that Calhoun was served with GEICO's motion, but it does not demonstrate that Calhoun filed a timely request for oral hearing on the motion.^[12]

3. In light of our ruling in Division 1, Calhoun's remaining enumerated errors concerning the effect of his release upon his claims against GEICO are moot.

Judgment affirmed.

JOHNSON, P.J., and BARNES, J., concur.

NOTES

[1] Murray v. Sloan Paper Co., 212 Ga.App. 648, 649(1), 442 S.E.2d 795 (1994) (citations omitted); see Poteate v. Rally Mfg., 260 Ga.App. 34, 35(1), 579 S.E.2d 44 (2003).

[2] See Cushman v. Raiford, 221 Ga.App. 785, 786, 472 S.E.2d 554 (1996); Murray, supra.

[3] State Farm, etc., Ins. Co. v. Manders, 292`Ga. App. 793, 794(1), 665 S.E.2d 886 (2008); Ballenger v. Floyd, 282 Ga.App. 574, 575, 639 S.E.2d 554 (2006).

[4] OCGA § 9-11-4(e).

[5] See OCGA § 9-3-33 (statute of limitation for personal injury action is two years).

[6] 269 Ga. 611, 502 S.E.2d 226 (1998).

[7] Id. at 611-612, 502 S.E.2d 226.

[8] Id. at 612, 502 S.E.2d 226.

[9] See id., citing Bohannon v. Futrell, 189 Ga. App. 340, 375 S.E.2d 637 (1988), aff'd Bohannon v. J.C. Penney Cas. Ins. Co., 259 Ga. 162, 377 S.E.2d 853 (1989).

[10] See Bohannon v. Futrell, supra at 342(1), 375 S.E.2d 637.

[11] See Uniform Superior Court Rule 6.3; Batesville Casket Co. v. Watkins Mortuary, 293 Ga.App. 854, 855-856(3), 668 S.E.2d 476 (2008).

[12] See Uniform Superior Court Rule 6.3.