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What happens when the defendant in a car accident cannot be located for a lawsuit?

Posted by Ben Sessions | Sep 07, 2018 | 0 Comments

It is an all-too-frequent occurrence that the defendant in a car accident - the personal that caused the accident and injuries - cannot be located for a lawsuit. This is a problem that every lawyer representing injured parties in a car accident must consider. So, what happens when the defendant in a car accident cannot be located for service of a lawsuit? And, more importantly, how do we fix this problem in a car accident case: 

The exceptions to this rule are limited. For example, if a plaintiff is unable to obtain personal service against an uninsured motorist, then OCGA § 33-7-11(e) allows service by publication upon a showing of due diligence. A judgment so obtained may be enforced against the uninsured motorist carrier, as long as other statutory requirements are met.3 This exception does not apply in the case sub judice because Southeastern is Hunter's liability carrier.

Se. Sec. Ins. Co. v. Lowe, 242 Ga. App. 535, 536, 530 S.E.2d 231, 233 (2000). 
 
We solve the problem service the at-fault driver that cannot be found by publication, and obtain a judgment that will be paid by the uninsured motorist carrier. 
 

But don't give up on trying to serve the at-fault, uninsured driver in an accident...

(e) In cases where the owner or operator of any vehicle causing injury or damage is known and either or both are named as defendants in any action for such injury or damages but the person resides out of the state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made and that he is a necessary or proper party to the action, the judge may grant an order that the service be made on the owner or driver by the publication of summons. A copy of any action filed and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company issuing the policy were actually named as a party defendant. Subsection (d) of this Code section shall govern the rights of the insurance company, the duties of the clerk of court concerning duplicate original copies of the pleadings, and the return of service. Following service on the owner or driver by the publication of the summons as provided in this subsection and service as prescribed by law upon the insurance company issuing the policy, the plaintiff shall have a continuing duty to exercise diligence in attempting to locate the owner or driver against whom the claim exists, but such obligation of diligence shall not extend beyond a period of 12 months following service upon the owner or driver by publication of the summons. However, regardless of such time limitations, should the plaintiff learn of the location of the owner or driver against whom the claim exists, the plaintiff shall exercise due diligence to effect service of process upon that owner or driver within a reasonable time period after receiving such information.

O.C.G.A. § 33-7-11.

About the Author

Ben Sessions

Ben Sessions is an owner of Hong & Sessions Law, LLC.  His practice is dedicated to helping clients that have been injured in car accidents and to the defense of clients charged with driving under the influence and related offenses. Ben received his law degree from the University of Georgia...

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