FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

November 18, 2014

In the Court of Appeals of Georgia

A14A1004. KELLY v. HARRIS, et al.

DILLARD, Judge.

In this civil action arising from an automobile accident, Thomas Kelly appeals

the trial court’s grant of summary judgment to GEICO, his insurance carrier. On

appeal, Kelly arguesthat the trial court erred in finding that GEICO was not in default

for its untimely answer, that the notice provision of GEICO’s insurance policy was

unambiguous, and that he failed to comply with the policy’s notice provision as a

matter of law. For the reasons set forth infra, we conclude that the trial court erred in

finding that GEICO was not in default, and thus, we vacate the trial court’s orders

denying Kelly’s motion for a default judgment and granting summary judgment to

GEICO and remand for further proceedings consistent with this opinion.
Viewed in the light most favorable to Kelly (i.e., the nonmoving party),1

the

record shows that on May 25, 2011, Kelly and Joseph Harris, an uninsured motorist,

were involved in an automobile accident. Subsequently, on October 30, 2012, Kelly

filed a complaint for negligence against Harris, alleging that he did not yield when

turning left directly into Kelly’s path, thereby causing the collision.

At the time of the accident, Kelly was insured by GEICO with a policy that

provided uninsured motorist coverage. On February 13, 2012, Kelly notified GEICO

that he intended to file an insurance claim arising from the accident. After filing his

complaint against Harris on October 30, 2012, Kelly served GEICO with a copy of

the summons and complaint on November 5, 2012.

GEICO filed an answer on February 14, 2013, joining the civil action as a

named defendant. On July 29, 2013, GEICO moved for summary judgment, arguing

that Kelly could not prevail because he failed to comply with the notice provision of

his insurance policy, which required that he notify GEICO “as soon as possible after

the accident.” Specifically, GEICO argued that Kelly’s notice was untimely as a

1

See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003)

(“On appeal from the grant or denial of a motion for summary judgment, we review

the evidence de novo, and all reasonable conclusions and inferences drawn from the

evidence are construed in the light most favorable to the nonmovant.”).

2
matter of law because it was provided more than eight months after the accident.

Kelly responded, arguing that GEICO was in default for filing an untimely answer

and, regardless, its notice provision was ambiguous and thus unenforceable. GEICO

later withdrew its motion for summary judgment and filed a notice of election to

proceed in the name of Harris, the uninsured motorist, instead of in its own name.

Kelly objected to GEICO’s notice of election, and GEICO responded bywithdrawing

the notice and renewing its initial motion for summary judgment. Kelly then filed a

motion for default judgment against GEICO, which the court denied. Then, after a

hearing, the court granted GEICO’s renewed motion for summary judgment. This

appeal follows.

To begin with, we note that summary judgment is appropriate when “the

moving party can show that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law.”2 A defendant meets this burden

when the court is shown that “the documents, affidavits, depositions and other

evidence in the record reveal that there is no evidence sufficient to create a jury issue

2 Albertson v. City of Jesup, 312 Ga. App. 246, 248 (718 SE2d 4) (2011)

(punctuation omitted).

3
on at least one essential element of the plaintiff’s case.”3 Finally, if the moving party

satisfies this burden, “the nonmoving party cannot rest on its pleadings, but must

point to specific evidence giving rise to a triable issue.”4 With these guiding

principles in mind, we turn now to Kelly’s enumerations of error. 

1. Kelly first argues that the trial court erred in finding that GEICO was not in

default for filing an untimely answer. Specifically, he contends that the court

erroneously relied upon a typographical error contained in Lewis v. Waller5to

conclude that GEICO’s answer was timely.

We agree with Kelly that, in finding that GEICO’s answer wastimely filed, the

trial court relied upon a typographical error in Lewis. Indeed, in its order granting

summary judgment, the trial court quoted our opinion in Lewis, which notes that “to

the extent that the [uninsured motorist carrier (“UMC”)] purportsto act directly in its

own name, its answer is timely if filed within 30 days from service of the answer and

complaint upon the UMC.”

6 And in relying upon this language, the trial court found

3

Id. (punctuation omitted).

4

Id. (punctuation omitted).

5

 282 Ga. App. 8 (637 SE2d 505) (2006).

6

Id. at 12 (1) (b) (emphasis supplied in part).

4
that GEICO was not in default because its answer was timely filed within 30 days of

Harris’s answer. However, in the above-cited quote from Lewis, the phrase “answer

and complaint” should actually read “summons and complaint,” and we take this

opportunity to acknowledge and correct this typographical error.

At the outset, we note that immediately following the above-cited language

from Lewis, we concluded that the UMC’s answer was timely because it was filed

within 30 days of when the UMC was served with “the summons and complaint.”

7

And in support of this conclusion in Lewis, we cited Home Indemnity Co. v. Thomas,

8

which held that, 

to the extent that [an insurer] may purport to act directly in its own

name, and thereby elect to assume the status of a named party, we think

the rules of practice and procedure apply to it commencing when service

is perfected as though actually named as a party defendant, and thus, to

preserve its rights as to this status, it must act within the time provided

by law to avoid default, and failing to do so, it is in no better position

than a defaulting party.

9

7

Id. (emphasis supplied).

8

122 Ga. App. 641 (178 SE2d 297) (1970); see Lewis, 282 Ga. App. at 12 (1)

(b).

9 Home Indem. Co., 122 Ga. App. at 641; see also OCGA § 9-11-1 (“This

chapter governs the procedure in all courts of record of this state in all actions of a

5
Accordingly, Lewis and Home Indemnity Co. firmly establish that, once GEICO was

served with the summons and complaint, it was then subject to Georgia’s rules of

practice and procedure that apply to every other litigant.

10

Indeed, such a result is

entirely consistent with our Supreme Court’s conclusion that, “[a]lthough [a] UMC

should not be placed in a worse position than the alleged tortfeasor for whose

negligence it may ultimately be held financially responsible, it likewise should not

be placed in a better position.”11

Here, GEICO was served with the complaint on November 5, 2012, but it filed

its answer 101 days later on February 14, 2013. And in Georgia, a defendant shall

serve his answer “within 30 days after the service of the summons and complaint

civil nature whether cognizable as cases at law or in equity, with the exceptionsstated

in Code Section 9-11-81.”); cf. Hall v. Regal Ins. Co., 202 Ga. App. 511, 513 (414

SE2d 669) (1991) (“The right [of an uninsured motorist carrier]to participate directly

in the proceedings includes the right to engage in discovery in accordance with the

provisions of applicable discovery statutes.”).

10

See Lewis, 282 Ga. App. at 12 (1) (b); Home Indem. Co., 122 Ga. App. at

641.

11

Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612 (502 SE2d 226) (1998)

(punctuation omitted).

6
upon him, unless otherwise provided by statute. “

12 Moreover, to avoid a default

judgment, a party must move to open the default as a matter of right within the next

15 days after defaulting or at any time before a final judgment subject to the trial

court’s discretion.

13 Thus, contrary to the trial court’s findings, GEICO was indeed

in default because it filed its answer well over 30 days after it received service of the

complaint, and it never moved to open default under OCGA § 9-11-55 (a) or (b).14

Then, after relying upon the typographical error in Lewis to determine that

GEICO’s answer was timely, the trial court further found that because the Uninsured

Motorist Act15allows a UMC to file no answer whatsoever, subjecting a UMC to

default for filing a late answer would lead to the “illogical result” that a UMC filing

an answer after 30 days would be in a worse position than a UMC that never files an

answer. And similarly, GEICO argues on appeal that allowing a UMC to default for

12

See OCGA § 9-11-12 (a); see also Cavender v. Taylor, 285 Ga. 724, 724 (1)

(681 SE2d 139) (2009).

13

 OCGA § 9-11-55 (a), (b). 

14 We do not fault the trial court for relying upon the typographical error

contained in Lewis. Any fault in that regard lies squarely with this Court. 

15

See OCGA § 33-7-11 et seq. 

7
filing a late answer would “unravel the flexibility” provided to insurance companies

under OCGA § 33-7-11 (d). We disagree. 

In relevant part, Georgia’s Uninsured Motorist Act requires that, in personalinjury actions in which a defendant is known or reasonably believed to be an

uninsured motorist, the plaintiff must serve his or her insurer with a copy of the

complaint.

16 Further, in the case of a known owner or operator of an uninsured

vehicle, “either or both of whom are named as a defendant in such action, the

insurance company issuing the policy shall have the right to file pleadings and take

other action allowable by law in the name of either the known owner or operator or

both or itself.”17 Thus, under the plain language of the statute, once a UMC is served

with a complaint against an uninsured motorist, it has the option to join that action

by filing an answer, but it is not required to do so.

18 And if the UMC elects not to join

as a party, it may then litigate its contract disputesseparately in any “action allowable

16

See OCGA § 33-7-11 (d). 

17

 See id. (emphasis supplied).

18

See Singleton v. Phillips, 229 Ga. App. 286, 288 (2) (494 SE2d 66) (1997)

(noting that under OCGA § 33-7-11 (d), a UMC may “elect to become a party to the

case by filing an answer in its own name”).

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by law.”19 As such, while we certainly agree that the Uninsured Motorist Act gives

insurance companies wide latitude in deciding whether to join a lawsuit against an

uninsured motorist, GEICO cites to no statutory language or case law (and we find

none) remotely suggesting that once a UMC voluntarily becomes a party to a lawsuit

it is exempt from fully complying with the dictates of the Civil Practice Act.

Moreover, requiring UMCs to follow such practices and procedures in no way

“unravels” the flexibility that they are afforded under the Uninsured Motorist Act.

Indeed, requiring UMCs to follow the same rules of civil procedure that apply to

every other litigant does not limit or impede their ability under that statutory

framework to opt-in or opt-out of litigation. In any event, GEICO’s contention that

a UMC can never be in default is directly at odds with our prior decisions in Lewis

and Home Indemnity, Co., which hold otherwise and govern the outcome of this

appeal.

20

In sum, the trial court’s orders denying Kelly’s motion for a default judgment

and granting GEICO’s motion for summary judgment were premised, at least in part,

19

 OCGA § 33-7-11 (d).

20

See Lewis, 282 Ga. App. at 12 (1) (b); Home Indem. Co., 122 Ga. App. at

641. 

9
on the trial court’s reliance upon a typographical error in Lewis and its erroneous

belief that a UMC can never be in default. As such, we vacate those orders and

remand the case for the trial court to determine whether GEICO’s default should

stand and then proceed accordingly based on that determination. 

2. Given our holding in Division 1, supra, we need not address Kelly’s

argument that the trial court erred in resolving the contract disputes in GEICO’s

favor.

For all of the foregoing reasons, we vacate the trial court’s denial of Kelly’s

motion for a default judgment and its grant of GEICO’s motion for summary

judgment and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded with direction. Doyle, P. J., and Miller,

J., concur.

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