How do we make progress on discovery in a personal injury case when the defendant cannot be served?

If your personal injury case cannot be settled for an amount of money that you find acceptable, the only recourse that you have is to file a lawsuit against the defendant. Frequently, filing a lawsuit against the at-fault party and engaging in the discovery process can result in a greater settlement value being placed on your claim/case. However, an essential requirement of filing a lawsuit and beginning the litigation process in your personal injury case is properly serving the at-fault party with the complaint (lawsuit). As you can imagine, most defendants do not want to be served with the lawsuit. The at-fault wants the case to go away without having to go through litigation, depositions, etc., so many people attempt to avoid service of the complaint. And, beyond that, many insurance defense lawyers will attempt to avoid having to answer discovery requests when a defendant has been served by publication (as opposed to personal service). 

 

Once a defendant has been served by publication and a judge has issued an order finding that there is sufficient information to suggest that the defendant is attempting to avoid service, we should be able to compel responses to discovery requests under this authority: 

 

While it is generally true that service by publication does not confer personal jurisdiction on a defendant, a judge may order service by publication if it appears “by affidavit, to the satisfaction of the judge” that a defendant “conceals himself … to avoid the service of the summons.” OCGA § 9–11–4(f)(1)(A). Service must be properly published as set forth in OCGA § 9–11–4(f)(1)(C). If the defendant is a *447 resident who is actually present within the jurisdiction of the court, has actual knowledge of the suit, and “ wilfully secrets himself in order to frustrate all reasonable efforts to effect personal service,” then the service by publication affords sufficient due process and confers personal jurisdiction over the defendant. Melton v. Johnson, 242 Ga. 400, 403–404, 249 S.E.2d 82 (1978). See also Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga.App. 123, 126–127(1), 730 S.E.2d 514 (2012) (trial court did not err in ordering service by publication based on evidence defendant was evading personal service, but actual publication invalid because court clerk did not comply with OCGA § 9–11–4(f) (1)(C)); Green v. Cimafranca, 288 Ga.App. 16, 18(1), 653 S.E.2d 782 (2007) (no abuse of discretion in implied finding that plaintiff failed to prove defendant wilfully concealed himself to frustrate personal service); Baxley v. Baldwin, 279 Ga.App. 480, 482(2), 631 S.E.2d 506 (2006) (affirming trial court’s finding that facts did not show wilful concealment); Southeastern Security Ins. Co. v. Lowe, 242 Ga.App. 535, 536(1), 530 S.E.2d 231 (2000) (service by publication insufficient to confer personal jurisdiction because plaintiff offered no facts showing wilful evasion of personal service).

 

The trial court relied on Moreno v. Naylor, 305 Ga.App. at 506(2), 699 S.E.2d 838 (2010), as support for the proposition that “service by publication alone is insufficient for the trial court to obtain personal jurisdiction.” To the extent that Moreno and the following cases hold that service by publication is never sufficient to confer personal jurisdiction against any defendant, they are overruled: Brasile v. Beck, 312 Ga.App. 77, 78(2), 717 S.E.2d 677 (2011); Long v. Bellamy, 296 Ga.App. 263, 267(1)(c), 674 S.E.2d 120 (2009); State Farm Mut. Auto. Ins. Co. v. Manders, 292 Ga.App. 793, 794(1), 665 S.E.2d 886 (2008); Wyatt v. House, 287 Ga.App. 739, 740(2), 652 S.E.2d 627 (2007); Costello v. Bothers, 278 Ga.App. 750, 752(2), 629 S.E.2d 599 (2006); Patel v. Sanders, 277 Ga.App. 152, 154(2), 626 S.E.2d 145 (2006); Cohen v. Allstate Ins. Co., 277 Ga.App. 437, 438, 626 S.E.2d 628 (2006); Williams v. Jackson, 273 Ga.App. 207, 209, 614 S.E.2d 828 (2005); Saxton v. Davis, 262 Ga.App. 72, 584 S.E.2d 683 (2003); Hawkins v. Wilbanks, 248 Ga.App. 264, 265, 546 S.E.2d 33 (2001); Wilson v. State Farm Mut. Auto. Ins. Co., 239 Ga.App. 168, 172, 520 S.E.2d 917 (1999). Winters v. Goins, 235 Ga.App. 558, 560(2), 509 S.E.2d 361 (1998); Bailey v. Lawrence, 235 Ga.App. 73, 508 S.E.2d 450 (1998); Smith v. Johnson, 209 Ga.App. 305, 306(1), 433 S.E.2d 404 (1993); Douglas v. Woon, 205 Ga.App. 355, 356(1), 422 S.E.2d 61 (1992); **341 Starr v. Wimbush, 201 Ga.App. 280, 282(2), 410 S.E.2d 776 (1991); and Norman v. Daniels, 142 Ga.App. 456, 459(2)(a), 236 S.E.2d 121 (1977).