A recent case from the Georgia Supreme Court addresses seemingly late service of a UM carrier. Stout v. Cincinnati Insurance Co., 269 Ga. 611 (1998) addresses two (2) issues, which are:

1. Whether the statute of limitations for serving a UM carrier pursuant to O.C.G.A. §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 the applicable statute of limitations has run; and

2. Whether service upon a UM carrier of an original action is necessary in order to allow for service in a properly filed renewal action.

Applicability of the statute of limitations for service of a UM carrier

The Georgia Supreme Court has held that, "[a] plaintiff can wait to serve a UM carrier until he files a valid renewal suit after the running of the statute of limitation." United States Fid. &c Co. v. Reid, 268 Ga. 432, 434 (1997). The rationale behind this holding is based upon the court’s interpretation of O.C.G.A. §33-7-11(d) as not requiring service upon the UM carrier for the purpose of making the UM carrier a party to the underlying tort suit, but to provide for service upon the UM carrier as though it were a named party defendant. This interpretation treats service of the UM carrier as intended merely to establish "notice of the existence of a lawsuit in which [the UM carrier] ultimately may be held financially responsible." Stout at 611-612; Bohannon v. Futrell, 189 Ga. App. 340, 342 (1988).

The purpose of service upon a UM carrier being merely to provide notice of the pendency of a lawsuit, it is the validity of service upon the actual named Defendant which must ultimately control. If a Defendant is validly served within an authorized period of time, then the UM carrier can also be served within that same time period. The court even goes so far as to say that a statute of limitations defense posed by a UM carrier who is not even a party to the underlying tort suit would be inconsistent with the intent of O.C.G.A. §33-7-11(d). Stout at 612. "Although the UM carrier 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 . . . Because the statutory requirement that the Plaintiff serve his own UM carrier 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 UM carrier at any time within which valid service could be made on the [named] Defendant." Stout at 612; See Also: Granite State Insurance Co. v. Nord Bitumi U.S., 262 Ga. 502, 504 (1992).

Simply put, the Stout decision provides that a UM carrier’s interest in any litigation against the named Defendant is contingent upon that named Defendant’s liability in such litigation. To that end, so long as a named Defendant is made a proper party to a case, including, specifically, a renewal action accruing after the expiration of the applicable statute of limitations, the UM carrier is without recourse to raise a defense that the named Defendant is not entitled to raise.

Requirement of service of the original action upon the UM carrier

Stout interprets the holding of Bohannon v. J.C. Penney Casualty Ins. Co., 259 Ga. 162 (1989) as requiring that a UM carrier need only be served with a lawsuit, whether an initial suit or a renewal suit, that would "ultimately result in financial responsibility for the UM carrier." Stout at 612. The only requirement imposed by O.C.G.A. §32-7-11(d) for service upon a UM carrier is the requirement that the UM carrier be "served within the time allowed for valid service on the [named] defendant in the tort action." Id.; See Also: Vaughn v. Collum, 236 Ga. 582 (1976).

Even though a UM carrier was not given notice of an earlier, dismissed, lawsuit, timely notice of a renewal action to a "non-party liability insurer" would be sufficient for purposes of satisfying the statute. See: Granite States, Supra.