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In any personal injury lawsuit against a business—say, a slip-and-fall or similar premises liability case—the defendant may have a franchise relationship with another company. Does that mean the franchisor can be held liable for the local business’ negligence? A recent Georgia Court of Appeals decision provides a useful illustration of the law in this area.

Kids R Us International, Inc. v. Cope

The plaintiff in this case is the mother of a three-year-old child. The child was enrolled at a daycare center. One day, the child suffered injuries to his face when he collided with a metal gate located in the daycare’s play area. The mother argued the daycare center was negligent in failing to supervise her child and keeping the overall premises safe.

The daycare center itself was a franchise for a national brand. The mother’s personal injury suit named both the owner of the daycare center and the franchisor as defendants. Before the trial court, the franchisor moved for summary judgment, arguing it could not be held liable for the negligence of the franchisee; that is, the owner of the particular daycare center in question. The judge denied summary judgment but immediately certified the decision for review by the Court of Appeals.

In its opinion, the Court of Appeals reversed the trial judge, holding the franchisor was entitled to summary judgment. Under Georgia law, a company is “vicariously liable” for any negligent act committed by one of its agents. Here, the plaintiff argued the daycare center was an agent of the franchisor. The Court of Appeals disagreed.

There were two possible theories of agency here. The first was “actual agency,” or a contractual duty to act as an agent. Here, the Court of Appeals found the agreement between the franchisor and the daycare center created no actual agency. In exchange for the use of the franchisor’s name and brand, the daycare center agreed to uphold certain standards—decor, hours of operation, etc.–but the franchisor had no role in the center’s day-to-day operations. More importantly, the appeals court noted, the franchisor assumed no responsibility for oversight. That meant no actual agency existed.

But a franchisor might also be held liable under the theory of “apparent agency.” This theory applies when three conditions are met. First, the principal holds out another person (or entity) as its agent. Second, the plaintiff “justifiably relied” on the agent’s skill based on the principal’s representations. Finally, such reliance led to the plaintiff’s injury.

Here, the Court of Appeals said the plaintiff could not prove the second element, justifiable reliance. The plaintiff argued the franchisor held the daycare center out as its agent because “all signage and documentation” contained the franchisor’s trademarks. But the Court of Appeals noted that alone does not prove apparent agency. And in this case, the plaintiff further defeated her own argument when she initially signed an enrollment form for her son which clearly stated the daycare center “is independently owned and operated,” and the franchisor was not responsible for any of its operations. In other words, the court said, the franchisor never held the daycare center out as its agent.

The appeals court’s decision only extends to the franchisor. The lawsuit against the daycare center may continue. The Court of Appeals did not address the merits of the underlying negligence claim.

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Motor carriers—persons and corporate entities who contract for the transportation of household goods or passengers—must carry insurance in order to legally operate in Georgia. Georgia law further provides a person injured as the result of a motor carrier’s negligence may directly sue the carrier’s insurance company for damages. But there are exceptions to this rule, as the Georgia Court of Appeals explained in a recent decision.

Mornay v. National Union Fire Insurance Co.

This case arose from the death of a 69-year-old woman who had been living in a nursing home. The woman was also receiving Medicaid benefits. The State of Georgia had a contract with a motor carrier to provide transportation services for Medicaid patients. The contractor, in turn, hired a subcontractor to help carry out the state contract.

In April 2010, the subcontractor dispatched a van to transport the woman from her nursing home to a medical appointment. During transport, the van stopped short, causing the woman fall out of her wheelchair. She sustained serious injuries as a result, which sadly led to her death approximately two months later.

The woman’s estate filed suit against the transportation contractor and, pursuant to Georgia law, its insurance company. A trial court, however, dismissed the insurer as a defendant, holding it could not be directly sued. The estate appealed that decision to the Court of Appeals.

But a three-judge panel of the Court of Appeals unanimously affirmed the trial court’s judgment. The reason the estate could not maintain a direct lawsuit against the insurer was because the insured party—the subcontractor that provided the van—fell outside the legal definition of a “motor carrier.” Georgia law carves out a number of exceptions to the definition of “motor carrier.” As applicable here, the insurer said the subcontractor fell under an exemption for vehicles “capable of transporting not more than ten persons for hire when such vehicles are used exclusively to transport persons who are elderly, disabled, en route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication.”

Here, the subcontractor used a van with space for four passengers, including one person in a wheelchair. Since this fell below the ten-person threshold, the Court said the subcontractor was not a motor carrier, and therefore its insurance company could not be directly sued. The court rejected the estate’s argument the van should not fall within the exemption because it was actually designed to transport at least 12 passengers, two more than the statutory requirement. This was irrelevant, the court said, because the exemption “is based on the vehicle’s actual seating capacity”—which was four—“not its initially designed capacity.”

The appeals court also rejected the estate’s claim the van fell outside the exemption because it was not exclusively used to transport elderly and disabled patients; it also transported children, who are not a specified group in the statute. The court said the exemption still applied, because the van was used to transport children to medical appointments, and the statute applies to vans used to transport the elderly and disabled “or” persons going to or returning from a medical appointment. The court thus chose to read the “or” as defining a separate group of persons.

Although the estate can no longer maintain a direct lawsuit against the insurer, its case against the transportation contractor is unaffected. And the insurer may still be liable for paying any judgment against the contractor, even though it is no longer a named party to the litigation.

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In a product liability case, a plaintiff attempts to hold a defendant responsible for the negligent design of a product that caused injury. But, what if the “product” is a public roadway maintained by private contractors? Can a plaintiff injured in an automobile accident caused by a defectively maintained road sue the contractor responsible for the maintenance? The Georgia Court of Appeals recently addressed this question.

Brown v. Seaboard Construction Company

The plaintiff in this case was injured in a one-car accident. She was a passenger in a vehicle traveling down a causeway. The car hit a pothole filled with water, causing the vehicle to hydroplane and collide with a nearby guardrail.

The passenger and the driver subsequently sued the company responsible for paving the causeway about seven years prior to the accident. A trial court granted summary judgment to the defendant and dismissed the lawsuit. Both plaintiffs appealed, although due to a procedural issue, only the passenger’s appeal was heard by the Court of Appeals. This was actually the second appeal; the Court of Appeals reversed an earlier grant of summary judgment to the defendants in 2012 due to a dispute over the admissibility of certain evidence. But the defendant prevailed a second time on summary judgment after addressing the Court of Appeals’ concerns with the earlier evidence.

In it most recent decision, issued on February 25 of this year, a three-judge panel of the Court of Appeals unanimously upheld the trial court’s dismissal. Judge Christopher J. McFadden, writing for the panel, said that under Georgia law, a contractor is generally not liable for “completed work over which it no longer exercises any control.” As the Court of Appeals has explained in prior cases, even if a contractor was negligent, once the work is accepted by the person who hired the contractor, a third party cannot then sue the contractor unless there is some evidence of a “hidden defect” in the work, or the work itself creates a “nuisance” or is “inherently or intrinsically dangerous.”

In this case, the defendant argued its work paving the causeway was accepted by the Georgia Department of Transportation back in 1998, seven years before the plaintiff’s accident. There was no question the defendant no longer exercised control over the causeway at that latter time. And, Judge McFadden said the plaintiff presented no evidence there was a “hidden defect” in the road caused by the defendant’s paving, nor anything that might constitute a nuisance or an inherently dangerous condition. The plaintiff claimed she consistently saw puddles and potholes on the road, but Judge McFadden concluded, “neither her testimony nor any other record evidence offers insight into when or why the pothole at issue in this case developed.”

Ultimately, the Georgia Department of Transportation has the legal responsibility for the construction and maintenance of the state’s highways. (Of course, it’s difficult to sue the DOT because of Georgia’s sovereign immunity.) As long as contractors meet DOT standards and the agency accepts the work, it is extremely difficult for a third party to sustain a negligence lawsuit.

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It is often difficult to reconstruct the events of a motor vehicle accident. If the accident resulted in fatalities, the victims are obviously unavailable to testify. Other accounts may not be considered admissible evidence in court. The Georgia Court of Appeals recently addressed such a case.

Maloof v. Metropolitan Atlanta Rapid Transit Authority

In April 2005, a woman boarded an Atlanta para-transit bus in her wheelchair. The bus driver secured the wheelchair to the floor of the bus. Later, as the bus was traveling on the road, the driver suddenly veered into the adjacent lane and had to step on the brakes to avoid a collision with another vehicle. The sudden braking caused the woman to fall out of her wheelchair onto the ground. As a result, the woman’s leg was fractured, and she was rendered immobile for several months until she passed away.

The woman’s estate sued MARTA, the Atlanta public transportation agency responsible for operating the bus. The estate claimed the bus driver had been “negligent in failing to secure the [deceased’s] wheelchair properly and in failing to maintain her lane.” A trial court granted summary judgment to MARTA on both issues.

But, in a decision issued February 24 of this year, the Georgia Court of Appeals partially reversed the trial court’s summary judgment. The appeals court said the negligence claim related to the bus driver’s alleged failure to maintain her lane could proceed to trial, but the claim the driver failed to properly secure the victim’s wheelchair could not. In pretrial discovery, the driver testified the victim had repeatedly declined to wear a shoulder harness that might have protected her from the accident. The estate offered no admissible testimony to contradict this statement.

Before the Court of Appeals, the estate argued the trial judge should have admitted statements made by the victim before her death. These statements were not made under oath, and the judge accordingly treated them as inadmissible hearsay. The Court of Appeals said this was well within the judge’s discretion. There are multiple exceptions to the hearsay rule, but the appeals panel said none applied to this case. In any event, the Court of Appeals noted the statements the estate sought to admit did not address whether the victim “wanted [the bus driver] to secure the shoulder harness upon her,” which was the alleged factual dispute raised by the estate. “Had such statement included this information,” the Court of Appeals noted, “our decision on this issue may very well have been different.”

However, the appeals court did support the estate’s contention that a police report made at the scene of the accident should have been admitted by the trial court. The report contradicted the bus driver’s account of the accident. As with the victim’s statements, the trial judge said the report was inadmissible hearsay. Not so, said the Court of Appeals. Georgia law makes a hearsay exception for “public records” based on matters “personally observed” by a law enforcement or government official. That means the police report was admissible to the extent it relied on the first-person observations of the officer (as opposed to secondhand accounts of what other people might have told the officer). As the trial judge conceded the report, if admissible, creates a factual dispute with respect to the driver’s liability for the accident itself, the Court of Appeals returned the case to the lower court for trial on this issue.

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Most personal injury cases are filed in state court. That is because most torts, including personal injury, are governed by state law. There are, however, times when a personal injury case is filed in state and then removed (transferred) to a federal court. This is typically done by out-of-state defendants, usually corporations, who believe the federal court gives them an advantage.

Federal courts are generally thought to be friendlier towards defendants than state courts. One reason for this is that, although state law still governs the underlying personal injury lawsuit, federal courts follow different rules regarding the admission of evidence than state courts. The federal rules are uniform throughout the country, while the rules in a Georgia state court are specific to the state.

That said, a defendant cannot remove a case from state to federal court unless certain legal requirements are met. First and foremost, there must be complete “diversity” among the parties. This just means the plaintiff and defendant must be residents of different states. For example, if a Georgia plaintiff files a personal injury lawsuit against a business incorporated in Florida, there is complete diversity.

Of course, diversity is only the first step. Even if the parties reside in different states, the “matter in controversy” must exceed $75,000 before a federal court can assume jurisdiction over the case. Federal courts are not a place to pursue small claims actions.

Riner v. Retained Subsidiary One, LLC

But, what if the plaintiff does not specify how much he or she seeks to recover? Federal jurisdiction may still exist. Here is a recent example from a pending case before a federal judge in Valdosta. In this case, the plaintiff was shopping at a local supermarket when “a water bottle display fell from a shelf on top of a freezer and onto him.” The plaintiff then sued the corporations that owned the supermarket and supervised the display, both of which are non-Georgia residents. The defendants then removed the case from state to federal court.

The plaintiff asked the federal court to remand (return) the case to state court because it had not been established that the “amount in controversy” exceeded the mandatory $75,000 threshold. Indeed, the plaintiff’s lawsuit specified no specific damage amount. His complaint only broadly discussed “serious injuries” he had suffered and related medical costs.

In an order dated Feb. 3 of this year, U.S. District Judge Hugh Lawson denied the plaintiff’s motion. Judge Lawson said even though the plaintiff had yet to affix a dollar-amount to his claim, it could be inferred from all available evidence the amount in controversy was more than $75,000. For one thing, the plaintiff previously presented the defendants with copies of his then-current medical bills, which reflected more than $52,000 in expenses. The plaintiff’s medical records further establish he is continuing to receive treatment “and that additional treatment and/or surgery is not only possible but probable.” So, it is more than likely his medical costs, which his lawsuit seeks to recover from the defendants, will be more than $75,000. The case will, therefore, remain in federal court.

 

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Animal control is an often overlooked aspect of law enforcement. Under Georgia law, sheriffs and other local law enforcement officers have a duty “to impound livestock found to be running at large or straying.” But, what happens when a law enforcement officer’s failure to perform this duty leads to the serious injury or death of a human being? The Georgia Court of Appeals recently had to answer this question.

Williams v. Pauley

This tragic case began when a horse strayed onto Highway 27 in Floyd County early one morning. A 911 operator received a call regarding the horse and dispatched a Floyd County police officer to investigate. The officer arrived at the scene and located the horse on the highway’s median. He followed the horse in his police vehicle for a few minutes before the animal “took off.” The officer then approached the horse on foot and gained a tentative hold. Still on the median, the officer walked the horse back towards his police vehicle, where the officer contacted his supervisor on the radio, seeking further direction on how to control the animal.

The supervisor instructed the officer to lead the horse off the median and off the roadway. The officer did so, but the horse subsequently followed the officer as he returned to his vehicle. The officer then went to a nearby gas station to try and obtain a rope or something else to help him control the horse. During this time, the horse ran back out onto the road, colliding with a vehicle and killing the driver inside.

The driver’s estate filed a wrongful death lawsuit against the officer, alleging his negligence in failing to remove the horse from the highway caused the fatal accident. The officer moved for summary judgment, arguing he was entitled to official immunity from suit as the result of his actions. The trial court denied the motion, but a three-judge panel of the Court of Appeals unanimously reversed.

Presiding Judge Gary Blaylock Andrews, writing for the appeals panel, said the officer’s actions on the morning of the accident were discretionary, not ministerial. This is an essential distinction under Georgia law. Law enforcement officers generally have immunity for discretionary acts; that is, actions requiring the exercise of individual judgment based on the given facts of a situation. Conversely, officers do not enjoy automatic immunity for “ministerial” acts requiring them to carry out a “simple, specific duty” spelled out by law or regulation.

Although Georgia law does require law enforcement to “impound” stray horses and other livestock, that does not make it a ministerial act. As Judge Andrews noted, the law does not spell out a specific method by which an officer must impound an animal. It was therefore left to the officer’s “deliberation and judgment.” He attempted to comply with the law, and even if he did so negligently, Judge Andrews said he was nevertheless entitled to official immunity. The Court of Appeals therefore granted summary judgment to the officer, dismissing the complaint made by the victim’s estate.

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Indemnification is an important concept in personal injury law. Basically, if A indemnifies B, and C sues B for negligence and wins, B can then sue A to recover some or all of the cost of paying the damage award to C. Business contracts often contain indemnification clauses to address potential personal injury lawsuits arising from the relationship.

CSX Transportation, Inc. v. General Mills, Inc.

Here is a recent example of how courts apply Georgia law to indemnification clauses. This dispute involved an alleged breach of contract. The parties were CSX Transportation, the railroad company, and cereal manufacturer General Mills, which operates a plant in Newton County. General Mills hired CSX to construct a private “sidetrack” connecting its plant with CSX’s main railroad line. Under the agreement, General Mills had the right to handle some of the “switching” operations—the process of moving and connecting railroad cars to a train—independent of CSX. Accordingly, the contract contained an indemnification clause whereby General Mills “assume[d] all risk of loss, damage, cost, liability, judgment and expense (including attorneys’ fees) in connection with any personal injury” arising from any switching it oversaw.

This clause became an issue after CSX was held liable for an accident on the General Mills’ sidetrack. In 2005, CSX delivered a rail car containing grain to the General Mills plant. Two General Mills employees then performed a switching operation to move the car. In the process, the rail car rolled away and crashed into two other rail cars. One of the employees was seriously injured to the point where he lost the use of his legs.

The employee sued CSX for negligence. Following two jury trials and a settlement conference, CSX ended up paying the employee $16 million in damages. Notably, the second jury found CSX was “100% liable” for the accident.

CSX then sued General Mills, arguing the latter was contractually obligated to indemnify the former for the $16 million judgment paid to the employee. General Mills disagreed and moved to dismiss the lawsuit. And, in a judgment entered on February 3 of this year, U.S. District Judge Thomas W. Thrash, Jr., of Atlanta sided with General Mills.

Judge Thrash explained the indemnification clause at issue did not require General Mills to pay a judgment arising from CSX’s own negligence. Under Georgia law, “for a contract to provide for indemnification for losses stemming from the indemnitee’s negligence, the contract must meet a heightened specificity requirement.” In other words, unless the contract expressly said General Mills was liable for CSX’s negligence, it could not be held responsible. Even though the indemnification clause states General Mills indemnified CSX for “all” risks arising from its switching operations, Judge Thrash said that did not meet Georgia’s “heightened specificity” requirement.

Now, had both CSX and General Mills been at fault—and General Mills was never a defendant in the employee’s personal injury lawsuit—the indemnification clause would have allowed CSX to seek full indemnification from General Mills. But, again, Judge Thrash said Georgia law was clear that, given CSX had been found “100% liable” for the accident, General Mills was under no obligation to indemnify it.

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The death of a child is always a tragedy for the parents. When that death is the result of negligence or medical malpractice, the parents will understandably seek justice against the responsible professionals. But, justice is a more complicated matter when the child dies before birth. A recent decision by a federal judge in Atlanta addresses the difficulty raised when trying to decide when life begins for purposes of the law.

Durden v. Newton County

This sad case arises from a 2012 incident involving a pregnant woman incarcerated in Newton County. An Alabama-based contractor helped provide the woman’s medical care while in prison. The prison and the contractor understood this was a “high-risk” pregnancy.

In March 2012, the woman underwent surgery at a county hospital related to complications from the pregnancy. The woman unfortunately suffered further complications following the surgery. The prison apparently waited several days before returning the woman to the hospital. By then it was too late: the woman’s child was stillborn.

The woman subsequently sued the county and the outside contractor on several grounds under federal and Georgia law. In early 2014, the federal claims were dismissed, leaving only the state-law negligence claims against the outside contractor. The contractor then moved to dismiss these remaining charges. (The case remains before a federal court as the contractor is an out-of-state corporation.)

The most notable element of the motion to dismiss dealt with the legal status of the stillborn child. The woman’s lawsuit sought damages for her child’s “pain and suffering” as well as for his wrongful death. The contractor did not seek dismissal of the wrongful death claim, only the pain and suffering claim. As a matter of law, the contractor said, an unborn child cannot recover for pain and suffering.

U.S. District Judge Richard W. Story sided with the contractor on this point. He explained that a mother could recover damages for wrongful death of an unborn child, but not for that child’s pain and suffering. Wrongful death is governed by a specific law in Georgia separate from those governing other personal injuries. Georgia law does recognize wrongful death actions in cases where “quickening”—the point in time when a fetus “is able to move in its mother’s womb”—has already taken place. (This is a rule specific to Georgia; most states require a “viable” fetus.) “However,” Judge Story added, “quickening only applies to wrongful death claims.”

Only a “person” (or a person’s estate if he or she is deceased) may seek damages for pain and suffering in Georgia. And, according to the Georgia Supreme Court in Peters v. Hospital Authority of Elbert County, “persons” only include those children who are born and survive outside the womb. The Supreme Court expressly declined “to accord legal rights to the unborn without conditioning those rights upon live birth.” Accordingly, Judge Story said the mother could not maintain a pain and suffering claim on her child’s behalf against the contractor.

But, as noted above, the mother can still pursue her claim for the child’s wrongful death as well as her own injuries. Judge Story declined to dismiss most other aspects of the case against the contractor, including a demand for punitive damages. The case has moved to discovery and may still take several years to resolve.

 

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When a child dies on someone’s property as the result of negligence, the property owner and other responsible parties may be held liable for millions in damages. Many property owners take out insurance policies to protect them against such judgments. But how far do these policies extend? A recent federal case arising from the death of a Georgia toddler helps illustrate how insurance helps (or does not help) in such situations.

Moon v. Cincinnati Insurance Company

In March 2009, a two-year-old child died after drowning in a swimming pool located at on a property in Buford. At the time, the child was under the care of a babysitter, who was watching multiple children on the property, where she also lived. The babysitter’s father owned the property.

The parents of the deceased child sued the babysitter, her father and her husband (who also lived at the property) in Georgia state court. At this point the babysitter and her husband asked her father’s insurance company, which issued a policy covering the property, to defend them against the lawsuit. The insurance company initially agreed to do so, but later denied coverage and withdrew its defense. The parents of the deceased child won their claim in state court, receiving a damage award of nearly $10 million, 78% of which was assessed against the babysitter and her husband.

The couple then sued the insurance company in federal court for breach of contract and other allegations related to its denial of coverage. In 2013, U.S. District Judge Thomas W. Thrash, Jr., rejected the couple’s arguments and ruled for the insurance company. The U.S. Eleventh Circuit Court of Appeals affirmed the District Court in a January 2015 decision.

The key issue in this case was whether or not the babysitter and her husband were eligible for coverage under a clause in the father’s insurance policy that applied to “any person while acting as [the father’s] real estate manager.” The insurance company denied coverage after determining the babysitter and her husband were not acting as “real estate managers” for the father. They were simply tenants living on his property. The policy only covered the landlord or his agents, not tenants, as, say, a renter’s insurance policy might.

In response, the babysitter and her husband argued the term “real estate manager” is not precisely defined in the policy. If there is an ambiguity in the wording of an insurance contract, courts generally resolve such ambiguity in favor of the insured. But the courts disagreed. Judge Thrash said “there is no indication the term is ambiguous,” and that under Georgia law, a “real estate manager” is defined as someone “involved in selling or renting houses rather than maintaining and residing in a house.”

The Eleventh Circuit, in its own opinion upholding Judge Thrash, said that to accept the babysitter’s definition of real estate manager “would render meaningless the policy’s stated lack of coverage for tenants of the property.” It would make the insurer liable for “every tenant, family member or friend living in another’s home, who cuts the yard or paints a wall.” Indeed, even the father who owned the property did not consider his daughter and son-in-law to be his “real estate managers.” He had actually purchased the house from them to avoid foreclosure and allowed them to continue living there.

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If you are injured in a car accident as the result of someone else’s negligence, you should be mindful of legal time limits to file a lawsuit against the responsible parties. Under Georgia law, the statute of limitations for filing a personal injury claim is two years “after the right of action accrues,” such as when the car accident took place. But it is not enough to simply file your complaint in court; you must also serve the defendants with your lawsuit before the two-year period expires.

Service is the formal process of notifying a defendant of your lawsuit. If the defendant lives in Georgia, service must be done in person, usually through the local sheriff’s office. As will be explained below, the rules for service are different when the defendant is a non-resident. In any case, improper service may lead to dismissal of your case.

Arias v. Cameron

Here’s a recent case that illustrates how service can affect a personal injury lawsuit. This is an ongoing case, so it should be noted the plaintiff’s allegations have not yet been proven in court.

According to the plaintiff, she was riding her bicycle one day in 2011 when she was struck and seriously injured by a car. She subsequently sued the driver of the car and his employer. The employer was named because the driver had allegedly rented the car in the course of his employment, and the employer was responsible for insuring the vehicle.

At the time of the accident, the driver produced a California driver’s license. When the plaintiff filed her lawsuit in 2013—a few weeks before Georgia’s two-year statute of limitations was set to expire—she accordingly assumed the driver was not a resident of Georgia. Under Georgia law, any non-resident who operates a motor vehicle within the state is presumed to authorize the Georgia Secretary of State to receive service of any lawsuit arising from an accident. Accordingly, the plaintiff believed she had completed service by serving the Secretary of State and sending a copy of the complaint by certified mail to the address on the driver’s license.

But the driver claimed he actually was a Georgia resident at the time of the accident and therefore the plaintiff’s service was improper. If that is true, then the plaintiff must serve him personally—even if he now lives in California—rather than through the Secretary of State. The driver further argued that even if he was a non-resident, the service was still improper because he did not receive the plaintiff’s certified mailing until after the statute of limitations expired.

Once the plaintiff learned of the driver’s claim he was a resident, she immediately attempted to personally serve him in California through a local sheriff’s office. The sheriff made four unsuccessful attempts to serve the driver. Ultimately, the plaintiff had to hire a private process server to wait outside the driver’s residence until he appeared.

The defendant still maintained the improper service required dismissal of the lawsuit. The plaintiff countered with her own motion to dismiss. In Georgia, a plaintiff may voluntarily dismiss and refile a lawsuit within six months, resetting the clock with respect to service. A federal judge sided with the plaintiff. The U.S. 11th Circuit Court of Appeals agreed the plaintiff was well within her rights because, among other things, it was clear the defendant was trying to evade service in an attempt to run out the statute of limitations.