- Practice Areas
- Request Our Book
Although winning your case in front of the jury is the ultimate goal in litigation, many overlook the importance of the many procedural nuances associated with successfully bringing legal action. Indeed, failing to file pleadings within a certain period of time or filing a suit in an improper court can lead to various difficulties, including in extreme circumstances, dismissal of one’s case. The deadly mistakes a lawyer can make in neglecting to follow civil procedure is on display in a recent decision from the Georgia Court of Appeals, Kelly v. Harris.
The Harris litigation arose from an automobile accident between the plaintiff and an uninsured motorist on May 21, 2011. Following the accident, the plaintiff filed a negligence claim against the uninsured motorist, arguing that the uninsured motorist’s failure to yield when turning left into the plaintiff’s path was negligent and caused the collision at issue. Since the motorist was uninsured, the plaintiff notified his personal insurance carrier, GEICO, of his intent to file an insurance claim and served a copy of the summons and complaint in the suit on GEICO. The plaintiff served the summons and complaint on GEICO on November 5, 2012, but GEICO did not answer until February 14, 2013. After joining the case as a named defendant, GEICO moved for summary judgment, arguing that the plaintiff had failed to comply with the notice provisions of his insurance policy since he notified GEICO more than eight months following his accident. In opposition to the motion, the plaintiff argued that GEICO was in default because it had not filed a timely answer to the summons and complaint and, alternatively, the notice provisions of the insurance policy were ambiguous and thus unenforceable. Following some other procedural wrangling, the plaintiff filed an independent motion for default judgment against GEICO, which the trial court subsequently denied. Afterward, the court granted GEICO’s now-renewed motion for summary judgment. The Georgia Court of Appeals, however, unanimously reversed the trial court’s judgment.
Pursuant to Georgia law, a defendant shall serve its answer “within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute.” O.C.G.A. § 9-11-12. In Home Indemnity Co. v. Thomas, the Georgia Court of Appeals held that this rule of practice and procedure applies equally to an insurer that purports to act directly in its own name and assumes the status of a named party. In the current case, GEICO failed to answer until more than 100 days following service of the summons and complaint. Thus, GEICO was in default. Following the moment of default, a defaulting party must move to open the default within 15 days or at a later time before final judgment, but only upon discretion of the trial court. O.C.G.A. § 9-11-55 (a), (b). In this case, GEICO never made a motion to open the default and accordingly never remedied the default. In reaching a contrary conclusion, the trial court relied on a prior Court of Appeals case that errantly stated that the procedural rule applied after 30 days following service of the “answer and complaint.” Lewis v. Waller, 282 Ga. App. 8 (637 SE2d 505) (2006). However, the court held that reliance on this case was inappropriate because “answer and complaint” was a typographical error that should have read “summons and complaint.” The court acknowledged the error but noted that the cases cited in Lewis properly elucidated the law. Accordingly, the Court of Appeals vacated the decision and remanded the case to the trial court for it to decide whether the default should stand or to permit GEICO to move to vacate the default.
Although the trial court, following remand, will likely in its discretion grant a motion by GEICO to permit to move to vacate the default, this case elucidates the scope of problems that can arise when one fails to adhere to the court’s procedural rules. Indeed, GEICO would ultimately prefer that the specter of a binding default judgment did not depend on the discretion of a trial judge. Given the wide scope of procedural rules with which litigants must comply, a person contemplating filing suit should always consider enlisting the assistance of competent counsel. The Atlanta car accident lawyers at Christopher Simon Attorney at Law have considerable experience litigating claims in both state and federal court and are well acquainted with these courts’ specific procedural rules. If you have a possible claim and would like to know more about your options for recovery, feel free to contact us for a complimentary case evaluation.
“I am thankful for all Chris Simon and his team have done for my daughter and I would recommend him to anyone who has been injured or lost a loved one due to an accident.”