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McNeil v. McCollum11/14/2005
ANDREWS, P. J., PHIPPS and MIKELL, JJ.
Donald Wayne McNeil, Casual Carrier Trucking Company, Inc. ("Casual Carrier"), and Empire Fire and Marine Insurance Company ("Empire") appeal the trial court's denial of their motion to dismiss the complaint filed by Michael McCollum, Sr. ("McCollum"), as ward and guardian of Michael McCollum, Jr. ("Michael"). Appellants sought the dismissal of McCollum's complaint on the ground that it was barred by the statute of limitation because McCollum had not complied with OCGA § 9-11-15 (c). We affirm the trial court's denial of Casual Carrier's and Empire's motions to dismiss, but reverse the denial of McNeil's motion to dismiss.
The record shows that McCollum filed identical complaints in both state and federal court against Cives Steel, John Doe, John Doe Trucking Company, and John Doe Insurance Company on September 19, 2003. McCollum sought damages for personal injuries sustained by Michael, which arose out of an incident that occurred on November 27, 2001. At the pertinent time, McCollum and Michael were employed by J. S. Alberici Construction Company ("Alberici"), which was under contract with Georgia Power to erect structural steel at its plant in Bartow County, "Plant Bowen." Cives Steel had contracted with Alberici to provide the steel Alberici needed to complete the job at Plant Bowen. Several trucking companies transported steel from Cives Steel to Plant Bowen.
At approximately 10:00 a.m. on November 27, a shipment of steel arrived at Plant Bowen. McCollum, who was a shift supervisor with Alberici, advised the truck driver that the steel was not properly loaded. Nevertheless, Michael was instructed to unload the steel. In the course of doing so, he climbed onto the load of steel, which shifted suddenly, causing him to fall headfirst to the ground and to suffer severe and permanently disabling injuries.
As stated earlier, McCollum filed the action on September 19, 2003. The complaint alleged that, "pursuant to law and industry practice" the John Doe driver of the truck was responsible "to ensure that the steel was safely loaded," and that the driver's negligent failure to ensure the steel was safely loaded proximately caused the injuries sustained by Michael. The complaint sought to impose liability on the John Doe trucking company which employed the truck driver solely on the basis of respondeat superior liability. The complaint also alleged that the John Doe trucking company was a motor carrier under OCGA Title 46, Chapter 7, and that the trucking company's John Doe insurance company was liable on its obligation to provide insurance for the alleged negligence pursuant to OCGA § 46-7-12.
Cives Steel answered on November 5, 2003, and, the same day, McCollum's counsel forwarded interrogatories and a request for production of documents to Cives Steel to ascertain the identity of the other parties. McCollum learned from counsel for Cives Steel that the trucking company that delivered the load was either Casual Carrier or Cypress Truck Lines. On November 6, McCollum's counsel sent letters to Casual Carrier and its insurer, Empire, via certified mail, notifying them that they, along with the driver of the truck, would be named as defendants in the lawsuit and included in the letter a copy of the lawsuit.
McCollum's counsel averred that the identity of the truck driver was unknown until November 20, 2003, when he contacted Cives Steel's counsel to ascertain the driver's identity. Cives Steel's counsel forwarded him the accident report, which identified the driver of the truck as Wayne McNiel. McCollum's counsel employed a search firm to locate either Wayne "McNiel" or Wayne "McNeal." On December 2, 2003,
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