dissenting.
I respectfully dissent. From the time of the order for service by publication until the court’s dismissal order ten months later, the record shows no effort by Wilson to locate Strong. This case presents the question of whether, in order to retain her right to pursue a claim against her uninsured motorist carrier, a plaintiff must remain diligent in attempting to personally serve the alleged tortfeasor despite service by publication when the defendant is known but cannot be found.
A known motorist is deemed uninsured when he cannot be personally served. Smith v. Commercial Union Assur. Co., 246 Ga. 50, 52 (268 SE2d 632) (1980). Though the motorist cannot be served, the injured party must reduce her claim against the motorist to a judgment in order to establish the amount she is legally entitled to recover from the uninsured motorist carrier. Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). Accord Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (1) (224 SE2d 167) (1976). Under these *173circumstances, OCGA § 33-7-11 (e) of the uninsured motorist statute allows service by publication upon a showing of due diligence. Commercial Union, 246 Ga. at 52.1 When the trial court granted Wilson’s request for service by publication, it necessarily found that Wilson exercised due diligence in seeking publication up to that point in time. See Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998).2
Although service by publication on an uninsured motorist is ineffective to establish in personam jurisdiction necessary to support an enforceable judgment against the motorist, Commercial Union, 246 Ga. at 50; Smith v. Johnson, 209 Ga. App. 305, 306 (1) (433 SE2d 404) (1993),3 it does satisfy a condition precedent for recovery against the uninsured motorist carrier. Wentworth v. Fireman’s &c. Ins. Cos., 147 Ga. App. 854, 855 (I) (250 SE2d 543) (1978). Once service by publication is made, the plaintiff is free to pursue a nominal claim against the defendant in an attempt to obtain a nominal judgment which will establish the uninsured carrier’s liability. See State Farm &c. Ins. Co. v. Noble, 208 Ga. App. 518, 519, n. 1 (430 SE2d 804) (1993). The uninsured motorist provider can answer in its own name, become a party to the litigation, and contest issues of liability, damages and coverage. OCGA § 33-7-11 (d) and (e). Although effective against the carrier, any judgment obtained in this situation is ineffective against the individual defendant. Commercial Union, 246 Ga. at 50.
Here, the trial court, acting through a different judge than the *174one who authorized service by publication, set aside the order allowing publication and dismissed the case. Pretermitting whether the trial court should have set aside the order to publish, Wilson was required to remain diligent attempting to personally serve Strong, despite service by publication under OCGA § 33-7-11 (e). See Thomas v. Passenger, 211 Ga. App. 640, 642 (440 SE2d 228) (1993) (plaintiff made no showing as to diligence after service by publication). See also Starr v. Wimbush, 201 Ga. App. 280, 282 (2) (410 SE2d 776) (1991) (plaintiff took several additional steps to locate defendant after service by publication).
This is so because, first, although the uninsured motorist statute provides for service by publication, it does not eliminate the plaintiff’s obligation to serve the defendant as in all tort actions. See OCGA § 33-7-11. And, as shown above, service by publication under OCGA § 33-7-11 is ineffective against the defendant.
Second, the policy underlying the uninsured motorist statute is supported by requiring continued due diligence attempting to serve the defendant. “Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. [Cits.]” Commercial Union, 246 Ga. at 51. “The underlying purpose of uninsured motorist legislation [is] the protection of innocent victims from the negligence of irresponsible drivers. . . .” Terry v. State Farm &c. Ins. Co., 269 Ga. 777, 778 (1) (504 SE2d 194) (1998). But given this protection, the uninsured carrier has certain rights as well.
OCGA § 33-7-11 (f) provides that an insurer paying an uninsured claim is “subrogated to the rights of the insured to whom the claim was paid against the person causing [the injury]. . . .” If a defendant who is known but cannot be served turns up after an insurer has paid a claim, the defendant could still assert the defense of lack of service of process and failure to diligently serve and, if successful, thereby defeat the insurer’s subrogation claim. If the insured is not bound to continue to diligently pursue service, the insurer’s subrogation claim will be lost. Under the majority opinion, the uninsured carrier presumably now has the burden of attempting to diligently serve the uninsured motorist in order to protect its right to subrogation.
Third, the defendant tortfeasor may show up before entry of a nominal judgment and assert that the plaintiff has failed to diligently attempt to serve him. If true, the defendant will be dismissed from the case. Under these circumstances, the uninsured motorist carrier must be dismissed as well because a judgment, whether real or nominal, must be obtained against the uninsured motorist as a condition precedent to recovery against the uninsured motorist carrier. Noble, 208 Ga. App. at 520-521; Walker v. Ga. Farm &c. Ins. Co., *175207 Ga. App. 874, 876 (2) (429 SE2d 289) (1993). The plaintiff must remain diligent attempting to serve the defendant in order to prevent the defendant from being dismissed on these grounds.
Decided July 16, 1999. Franklin & Hubbard, Curtis L. Hubbard, Jr., for appellant. Sharon W. Ware & Associates, Sharon W. Ware, Joanne B. Brown, for appellee.Fairness is also promoted because if the defendant can eventually be served after diligent pursuit and before entry of a nominal judgment, the defendant becomes a party, the claims against him or her relate back to the time of filing, and it may turn out that the defendant is insured after all. The intent of the General Assembly in providing for service by publication to permit a nominal judgment is not defeated. The service is effective to support a nominal judgment which the plaintiff must proceed to obtain. However, in the meantime, the plaintiff must remain diligent in attempting to serve the defendant.
In this case, because State Farm answered, it became a party, Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803, 804 (395 SE2d 282) (1990), and it was therefore allowed to assert any defenses which would be available to the defendant. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 399 (1) (491 SE2d 848) (1997). Thus it was authorized to assert that Wilson was not diligent in attempting to personally serve Strong.
Wilson failed to show diligence in attempting to serve Strong after service by publication and failed to show that her initial efforts to locate Strong were sufficient to obviate the need for further effort. Therefore, Wilson has not met her burden of showing lack of fault for her failure to perfect timely service. See Bailey v. Lawrence, 235 Ga. App. 73, 77 (2) (508 SE2d 450) (1998). I would uphold the trial court’s dismissal on the grounds that Wilson did not show due diligence in attempting to serve Strong. See Sykes v. Springer, 220 Ga. App. 388, 389-390 (1) (469 SE2d 472) (1996).
I am authorized to state that Judge Smith joins in this dissent.
Service by publication on a known motorist who cannot be served was allowed in 1972 by an amendment to the uninsured motorist statute because the condition precedent of obtaining a judgment against the motorist could not be met without personal service. Ga. L. 1972, p. 882, § 1; see State Farm. &e. Ins. Co. v. Noble, 208 Ga. App. 518, 519 (430 SE2d 804) (1993).
The court’s finding was only that Wilson was diligent in seeking service by publication under OCGA § 33-7-11 (e), which does not necessarily require a showing of any attempted personal service. See Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992). Subsection (e) allows service by publication on any of four independent grounds: that the person (1) “resides out of the state,” (2) “has departed from the state,” (3) “cannot after due diligence be found within the state,” or (4) “conceals himself to avoid the service of summons.” OCGA § 33-7-11 (e). The trial court in this case granted the motion for publication on the grounds that “defendant cannot be found within the state, and further that defendant has concealed herself to avoid service.” At most, the order for service by publication in this case amounts to a finding that Wilson was diligent in determining that Strong could not be found in Georgia and was concealing herself.
But see McDade v. McDade, 263 Ga. 456, 457 (2) (435 SE2d 24) (1993) (service by publication effective when reasonable diligence has been exercised in attempting to ascertain whereabouts of known defendant); Robinson v. Robinson, 260 Ga. 731, 732 (399 SE2d 64) (1991) (same); Abba Gana a Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983) (same); Melton v. Johnson, 242 Ga. 400, 403-404 (249 SE2d 82) (1978) (service by publication effective to support in personam judgment against a Georgia resident where state and federal concepts of due process have not been violated).