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WADE v. WHALEN6/4/1998
Charles Wade sued Dr. Thomas Whalen for medical malpractice arising out of the doctor's participation in surgery on Wade's mother. She died on August 12, 1992, allegedly as a result of the malpractice. Wade filed suit on August 10, 1994, two days before the running of the statute of limitation. Wade did not serve process on Dr. Whalen until eight months later on April 10, 1995. Dr. Whalen moved for summary judgment, asserting expiration of the time limitation. The court denied the motion and its renewal but ultimately it did grant summary judgment. The issue is whether the trial court abused its discretion in finding Wade did not show diligent service of process.
1. "Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff. The correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The plaintiff has the burden of showing lack of fault. . . . The question on appeal is whether the trial court abused its discretion in concluding that there was due diligence by plaintiff in seeking to perfect service. To reverse the trial court, we would have to say as a matter of law that the trial court abused its discretion."
"The special duty the plaintiff bears to exercise reasonable diligence in serving a complaint for which the statute of limitations has expired, is too well established to dissertate. [Cits.] The thing that can never be lost in sight is that the plaintiff's cause of action was dead. It could not be revived unless the plaintiff used due diligence to perfect service, which diligence must be examined in light of the particular fact that the cause of action had expired."
Diligence means "caution or case; persevering application devoted and painstaking application to accomplish an undertaking: assiduity." Webster's Third New International Dictionary. It embraces the concept of persistence. We must remember that when measuring diligence with respect to service of process, it is in the context of notifying a defendant of suit beyond the time the law ordinarily allows for the bringing of such a suit. It is the plaintiff's grace period.
This "special" duty of due diligence is elevated to an even higher duty of the greatest possible diligence once plaintiff becomes aware there is a problem with service. If the sheriff returns the summons after failed attempts, plaintiff becomes "`obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.' [Cit.]" At that point "reasonable diligence" is insufficient. The same elevated duty arises when defendant's answer challenges service.
On August 11 Wade sent the summons and complaint to the sheriff to serve Dr. Whalen at a residence in Cobb County, Georgia. Dr. Whalen had moved to Irving, Texas seven months earlier. The sheriff returned the service form to Wade by August 30 and indicated the doctor had moved. Wade sent the complaint via certified mail, return receipt requested, to the Cobb County address. It was forwarded to Dr. Whalen in Irving where he signed the postcard evidencing receipt. When Wade received the postcard, he sent another copy of the summons and complaint to th
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