Facts
On May 16, 2019, Hope Fuller was involved in a motor vehicle collision with Mark Hendsbee. The collision resulted in serious injury to Fuller. In May of 2021, Fuller filed suit against Hendsbee for the 2019 crash. At the time of the accident, Fuller was a Georgia resident while Hendsbee resided in Alaska. His Alaskan address was listed on the police report.
Fuller attempted to perfect service under Georgia’s Non-Resident Motorist Act (NRMA), and served the Georgia Secretary of State on May 17, 2021. Fuller mailed a copy of the summons and complaint via certified mail to Hendsbee’s Alaska address that was listed on the police report. However, the mailing to Alaska was returned as undeliverable. After three failed delivery attempts, the package was marked as “unable to forward.” Following the unsuccessful mailings to the Alaska address, Fuller sent a copy of the summons and complaint to Hendsbee’s attorney’s address in Georgia on September 4, 2021.
Later in September, Hendsbee filed a Special Appearance and Answer, in which he asserted that he had been improperly served. Hendsbee later filed a Motion to Dismiss based on improper service. As part of his Motion, Hendsbee included an affidavit in which he stated that he sold the property listed on the police report in December of 2020, prior to Fuller’s service attempt, along with documentation that showed the sale of the property. The trial court granted Hendsbee’s Motion to Dismiss and Fuller appealed.
Issues & Holdings
The issue in this case was whether Fuller perfected service under the NRMA by sending the mailing to the Defendant’s attorney. The Court held that service on the attorney was not proper service.
Reasoning
The Court of Appeals held that the trial court did not err in granting the motion to dismiss for insufficient service because mailing notice to Hendsbee’s attorney is not sufficient service under NRMA. The Court of Appeals noted that courts should presume that the General Assembly meant what it wrote and the statutory terms should be given their plain and ordinary meaning. In analyzing the language of the NRMA, the Court of Appeals noted that it allows a plaintiff to serve an out-of-state defendant by (1) serving a copy of the complaint or other pleadings with summons on the Georgia Secretary of State, along with a copy of an affidavit of compliance with the statute and (2) requires that a plaintiff provide notice of service and a copy of the complaint and process sent by either statutory overnight delivery or certified mail to the defendant’s known address. O.C.G.A. § 40-12-2. The plaintiff also has to file with the trial court the defendant’s return receipt and affidavit of compliance with O.C.G.A. § 40-12-2. O.C.G.A. § 40-12-2.
In interpreting the language, the Court also cited Farrie v. McCall, which states that O.C.G.A. § 40-12-2 must be fully complied with before there is jurisdiction over a non-resident. 256 Ga. App. 446, 447 (2002). Farrie states that “because the service and venue provisions of the Non-Resident Motorist Act are in derogation of [the] common law, our courts have always strictly construed its requirements.” Id.
Fuller’s argument was that she complied with O.C.G.A. § 40-12-2 because she mailed the documents to Hendsbee’s attorney who was acting as his agent. The Court rejected this argument because the plain language of the statute states the notice must be sent to the Defendant.
Further, the Court noted that the statute does not list anyone else who could accept the notice on the behalf of the Defendant, such as an agent. While O.C.G.A. § 9-11-4(e)(7) allows for service “by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process,” the NRMA did not list an individual party’s agent as someone authorized to accept service.
The Court of Appeals acknowledged prior cases held that a plaintiff may satisfy the notice provision of the NRMA when a party’s agent received the party’s certified mail but, in each of those cases, the mail was sent to the defendant’s mailing address. See, e.g., Bowers v. Winter, 228 Ga. App. 530 (1997). In this case, the mailing was never sent to Defendant’s actual address.
Lastly, the Court reasoned that due process required that notice be sent to a defendant’s actual address. This was to ensure that notice did not depend merely upon chance, but that it provided a reasonable probability that the defendant would receive notice.
Conclusion
This case demonstrates the importance of following the NRMA when attempting service on a non-resident defendant. If you have an out-of-state defendant that you are trying to serve using O.C.G.A. § 40-12-2, be aware that the courts will interpret the statute and the facts of service strictly. The court has made clear that to perfect service under O.C.G.A. § 40-12-2, the complaint package must be sent to the defendant’s actual mailing address. Service on a defendant’s agent, such as an attorney, will not be sufficient. The Appeals Court noted that the defendant does not have to be the one to accept the mailing, but it must be sent to the defendant’s mailing address.
While service under O.C.G.A. § 40-12-2 can be a good alternative to personally serving an out-of-state defendant, be sure to follow the requirements of the statute to a “T” in order to ensure that your service of the defendant is valid.
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Citation: Fuller v. Hendsbee, No. A23A0159, (Ga. Ct. App. May 5, 2023)
