Georgia law allows a plaintiff in a civil lawsuit one chance to dismiss without prejudice and refile. The renewal statute, OCGA § 9–2–61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit within six months, regardless of whether the statute of limitations has run.

However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right. Cox v. Progressive Bayside Ins. Co., __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).

In that case, Cox filed suit against Dobson within the two year limitation period for her injuries. Dobson was an uninsured motorist. Cox successfully had Dobson personally served with the suit papers.

After expiration of the limitation period, Cox dismissed without prejudice and refiled within six months pursuant to OCGA § 9–2–61.  However, because Dobson had diedm Cox did not get personal service on him.  Eight days after the renewal action was filed, the sheriff reported that Dobson was dead.

If Cox had promptly asked the probate court to appoint an adminstrator for the estate of Dobson, filed a motion to substitute the administrator as defendant, and served the administrator with the lawsuit, Cox would have been OK>

Progressive, as uninsured motorist (UM) insurance carrier filed a suggestion of death. Cox failed to file a motion to substitute an executor or adminstrator for Dobson. Eleven months later, the court granted a motion to dismiss.

The Court of Appeals, in a decision written by Presiding Judge Mikell, held:

Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings and any suit brought against a deceased defendant is a nullity.FN5 The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit and accordingly, no action was ever commenced. . . . Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.

In a typical uninsured motorist case where the tortfeasor has died, estate administration is likely to be as absent as liability insurance. To enforce rights under uninsured motorist insurance coverage, it may be necessary to have a county administrator appointed as administrator of the decedent’s estate in probate court. The administrator can be served or acknowledge service in the injury suit. The plaintiff’s attorney must also separately serve the auto insurance company under the UM coverage.

If the deceased tortfeasor was from outside Georgia, questions might arise about jurisdiction of a Georgia probate court to appoint an administrator for this purpose. However, in Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d 496 (1961), the court held that potential liability insurance coverage could be an asset of the estate warranting appointment of an administrator in a county where there would have been venue against the decedent nonresident motorist if he had lived. If, for example, there had been coverage on the decedent’s vehicle which was either inadequate or denied due to nonpayment, that can provide the basis to have an administrator of the estate appointed and served. Then, when the UM carrier is served, it cannot defend on the ground that the tortfeasor’s estate was not served.

In serving any lawsuit, it is important to read the return of service papers that come back from the sheriff. If there is a note that the defendant could not be served, it is vitally important to follow up. If the defendant has died, it is important to promptly investigate and if necessary get the county administrator appointed so that there is someone who can be served with process on behalf of the estate.

Ken Shigley is Immediate Past President of the State Bar of Georgia and currently chair of the board of the Institute for Continuing Legal Education in Georgia, so he is well respected among judges, lawyers and court officials across Georgia. He has successfully handled cases in many of Georgia’s 159 counties from the mountains to the sea. Mr. Shigley has dual board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He has spoken on  continuing legal education programs from coast to coast and is now on the boards of the American Association for Justice Motor Vehicle & Premises Liability Section and Trucking Litigation Group.