Stout v. Cincinnati Insurance Co.

Carley, Justice.

Elva Stout was injured in a vehicular collision. She filed suit against the driver and owner of the other vehicle, but did not serve Cincinnati Insurance Company in its capacity as her uninsured motorist carrier (UMC). After the statute of limitations had run, Ms. Stout discovered that the defendants’ liability insurer was insolvent. She dismissed her suit, then refiled it within the six-month renewal period authorized by OCGA § 9-2-61 (a). The UMC was served with the complaint in the renewal action, but moved for dismissal because it had not been served with the original action within the statute of hmitations. The trial court granted the motion to dismiss, and the Court of Appeals affirmed. Stout v. Cincinnati Ins. Co., 226 Ga. App. 220 (486 SE2d 195) (1997). We granted certiorari in order to address two questions: 1) whether the statute of limitations for serving a UMC pursuant to OCGA § 33-7-11 should be the same as that for serving the defendant, even though the defendant does not qualify as uninsured under the statute until after the applicable statute of limitations has run; and, 2) whether service on a UMC of an original action is necessary in order to allow for service in a properly filed renewal action. We answer the first question in the affirmative, and the second question in the negative. Accordingly, the judgment of the Court of Appeals must be reversed.

The precise question of whether initial service on a UMC of a valid renewal suit will satisfy the requirement of OCGA § 33-7-11 (d) was answered in United States Fid. &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997): “[A] plaintiff can wait to serve a UMC until he files a valid renewal suit after the running of the statute of limitation.” This holding is based upon a recognition that OCGA § 33-7-11 (d) does not require service for the purpose of making the UMC a party to the underlying tort action, but does provide for service on the UMC “as though [it] were actually named as a party defendant.” Thus, service is intended only to give the UMC “notice of the exis*612tence of a lawsuit in which it ultimately may be held financially responsible.” Bohannon v. Futrell, 189 Ga. App. 340, 342 (1) (375 SE2d 637) (1988). Since the purpose of service on the UMC is simply to provide notice of the pendency of a lawsuit, rather than to establish the personal jurisdiction necessary to adjudicate liability, it is the validity of the service of the underlying lawsuit on the defendant which must necessarily control. If the defendant was validly served within an authorized time period, then it follows that the UMC also can be served within that same time period. Under those circumstances, the purpose of OCGA § 33-7-11 (d) to provide the UMC with notice of the pendency of a lawsuit is fully met. Allowing the UMC to set forth, in the context of a case in which it is not even a party, a statute of limitations defense which would not be available to the named party defendant, is completely inconsistent with the tenor of OCGA § 33-7-11 (d). The UMC cites no case which holds that the statute creates an independent statute of limitations defense for a non-party to the lawsuit. Although the UMC should not be placed in a worse position than the alleged tortfeasor for whose negligence it may ultimately be held financially responsible, it likewise should not be placed in a better position. In neither event is the UMC being treated as though it “were actually named as a party defendant” in the lawsuit. Because the statutory requirement that the plaintiff serve his own UMC is intended to achieve the same purpose as a contractual requirement that the defendant notify his own liability carrier of the pendency of a suit, there is no reason why service is not permissible on the UMC at any time within which valid service could be made on the defendant. See Granite State Ins. Co. v. Nord Bitumi U.S., 262 Ga. 502, 504 (2) (422 SE2d 191) (1992).

Reid is not inconsistent with Bohannon v. J.C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989) and creates no unwarranted exception to the principles stated therein. The actual holding of Bohannon, supra at 163, is that, under OCGA § 33-7-11 (d), the uninsured motorist carrier (UMC) “must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” (Emphasis supplied.) See also Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). Thus, Reid is entirely consistent with Bohannon’s requirement that the UMC be served within the same time period as is applicable to the defendant in the underlying lawsuit. Nothing in Bohannon requires that the lawsuit that is eventually served on both the defendant and the UMC be the initial lawsuit which was served only on the defendant. The only “tort action” which can now ultimately result in financial responsibility for the UMC is the renewal action. Although totally unauthorized by Bohannon, the UMC urges recognition of an exception to the mutually applicable period for service when the underlying lawsuit is a renewal action, so that the *613UMC, but not the party defendant, can raise a statute of limitations defense. This exception is not only inconsistent with the tenor of Bohannon and the express holding of Reid, it also would require overruling the decision in Granite State Ins. Co. v. Nord Bitumi U.S., supra, written by then Justice, now Chief Justice, Benham. Granite State held that although the insured failed to comply with notice requirements with regard to the initial, but later dismissed, lawsuit, timely notice of the renewal action to a non-party liability insurer was sufficient. We adhere to Bohannon, and decline to overrule Reid and Granite State Ins. Co. Based upon stare decisis and under the controlling authority of Reid, the Court of Appeals erred in affirming the grant of the UMC’s motion to dismiss.

Judgment reversed.

All the Justices concur, except Fletcher, P. J., who concurs specially, and Benham, C. J., and Sears, J., who dissent.