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Allstate Insurance Company v. Baldwin6/28/2000
JO-002
Allstate Insurance Company filed this interlocutory appeal from the trial court's order granting Rufus Baldwin's motion to add a defendant to a renewal action and denying Allstate's motion for summary judgment. Because no valid renewal action was filed, the trial court erred in allowing the plaintiff to add a defendant to the purported action after the six-month renewal period expired. Therefore, we reverse the trial court's order.
On July 8, 1992, while driving his pickup truck, Baldwin was involved in a collision with a car being driven by Wendy Wisenbaker. In February 1994, Baldwin sued Wisenbaker for injuries he allegedly sustained in the collision. At sometime during 1994, Wisenbaker's insurance carrier, State Casualty Insurance Company, became insolvent. Baldwin's uninsured motorist insurance carrier, Allstate, had not been named or served in the suit. The case remained pending for over four years when, on March 20, 1998, Baldwin voluntarily dismissed the action against Wisenbaker without prejudice. On September 14, 1998, Baldwin and his wife attempted to recommence the action by filing suit against their uninsured motorist insurance carrier, Allstate. They failed to name Wisenbaker or any other entity as a defendant.
Allstate moved for summary judgment, arguing that the purported renewal action was invalid because it was filed solely against Allstate, when Allstate was not a party to the original action. Allstate urged that since the alleged tortfeasor named in the original complaint, Wisenbaker, was not named in the purported renewal action, the action was not valid. And because it was not a valid renewal action, any defect therein could not be cured by amendment.
On March 1, 1999, nearly six months after the time for filing a renewal action expired, but before the trial court ruled on Allstate's motion for summary judgment, Baldwin moved to add Wisenbaker as a defendant. The trial court allowed Baldwin to add Wisenbaker as a defendant, and denied Allstate's motion for summary judgment, finding that the addition of Wisenbaker made the second action a valid renewal action.
1. Allstate contends that the trial court erred in denying its motion for summary judgment when the purported renewal action was not valid because it was not filed against the original defendant, and such a defect could not be cured by amendment. We agree.
OCGA ยง 9-2-61 (a) provides, in relevant part, that when a case has been commenced within the applicable statute of limitation and the plaintiff dismisses the case, it may be recommenced either within the original limitation period or within six months after the dismissal. To be a valid renewal of an original suit, so as to suspend the running of the statute of limitation, the new petition must be substantially the same as the original as to the essential parties. The renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.
Baldwin attempted to recommence his personal injury action within six months after dismissing it. However, in refiling his action, Baldwin neglected to name the one essential party named in the first action, Wisenbaker. Wisenbaker was the alleged tortfeasor and the only party sued in the original suit. Filing an action against Allstate was not the equivalent of recommencing an action against Wisenbaker. Besides never being a party to the original suit, Allstate did not occupy the same position as Wisenbaker. Allstate was not the tortfeasor and could only be held liable on a derivative basis. And, unlike Wisenbaker, Allstate, as an uninsured motorist insurance carrier, could not be forced
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