GA Code § 33-5-34 (2021)
2021 Georgia Code|Title 33 - Insurance|Chapter 5 - Regulation of Unauthorized Insurers|Article 2 - Surplus Line Insurance|Part 1 - General Provisions|§ 33-5-34. Venue of Actions Against Unauthorized Insurers Issuing Surplus Line Policies; Service of Process; Filing of Pleading by Insurer

  An action shall be brought against any unauthorized insurer under any contract issued by it as a surplus line contract pursuant to this chapter in the superior court of the county in which the cause of action arose.   Every unauthorized insurer issuing or delivering a surplus line policy through a surplus line broker in this state shall be deemed thereby to have appointed the Commissioner as its attorney for acceptance of service of all legal process issued in this state in any action or proceeding arising out of the policy, and service of process upon the Commissioner shall be lawful personal service upon the insurer.   Each surplus line policy shall contain a provision stating the substance of subsection (b) of this Code section and designating the person to whom the Commissioner shall mail process as provided in subsection (d) of this Code section.   Duplicate copies of legal process against the insurers shall be served upon the Commissioner and at time of service the plaintiff shall pay a fee in an amount as provided in Code Section 33-8-1, taxable as costs in the action.The Commissioner shall immediately mail one copy of the process so served to the person designated by the insurer in the policy for the purpose, by registered or certified mail or statutory overnight delivery with return receipt requested.   The insurer shall have 30 days after the date of mailing within which to plead, answer, or otherwise defend the action.    (Code 1933, § 56-626, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1399, § 2; Ga. L. 1992, p. 2725, § 10; Ga. L. 2000, p. 1589, § 3.)   Cross references.   - Venue generally, Ga. Const. 1983, Art. VI, Sec. II and § 9-10-30 et seq.    Venue of actions against insurance companies generally, § 33-4-1.   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the amendment to this Code section by Ga. L. 2000, p. 1589, § 3, was applicable with respect to notices delivered on or after July 1, 2000.   Law reviews.   - For comment on McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), holding that for a state to assert jurisdiction over a foreign insurance company it is sufficient for due process purposes if the contract on which the case is based has a substantial connection with that state, see 21 Ga. B.J. 113 (1958).   JUDICIAL DECISIONS   Inapplicable to domestic primary insurers.    - O.C.G.A. § 33-5-4 does not apply to a domestic primary insurer and further does not provide, even in that situation, for an "alternative manner" of service by certified mail, only an "alternative recipient." Lewis v. Southern Gen. Ins. Co., 209 Ga. App. 232, 433 S.E.2d 80 (1993).    This section applies only to surplus line contracts.  Smith v. Lloyd's of London, 568 F.2d 1115 (5th Cir. 1978).   Formal service upon Commissioner required.    - Since subsection (a) of O.C.G.A. § 33-5-34 provides only for an alternative recipient of service and does not include a provision for an alternative manner of service, it follows that the plaintiff must have effected formal service upon the Insurance Commissioner in order to be subject to the jurisdiction of the trial court. If the record reveals neither a viable acknowledgment of service nor a return of service, there is no basis for a finding that process was legally served upon the Commissioner. Cheshire Bridge Enters., Inc. v. Lexington Ins. Co., 183 Ga. App. 672, 359 S.E.2d 702, cert. denied, 183 Ga. App. 905, 359 S.E.2d 702 (1987).   Subsection (a) does not apply if surplus line insurer is only garnishee.    - Where an alien surplus line insurance company is merely named as a garnishee in case against others and the action is not on a cause of action arising under a contract, the superior court where the cause of action arose is not the sole court having jurisdiction of the company under subsection (a) of this section. Lloyd's of London, Inc. v. Goldkist, Inc., 145 Ga. App. 478, 243 S.E.2d 726 (1978).   Garnishee may be served by serving Commissioner.    - Under subsection (b) of this section, an alien surplus line insurance company named as garnishee is properly served by process served on the Insurance Commissioner, the action being "a proceeding arising out of such policy." Lloyd's of London, Inc. v. Goldkist, Inc., 145 Ga. App. 478, 243 S.E.2d 726 (1978).   Defendant normally has 30 days from mailing of process to answer.    - In the normal litigations with which this section is concerned, the defendant has 30 days, commencing with the date on which the process is mailed by the Insurance Commissioner. Lloyd's of London, Inc. v. Goldkist, Inc., 145 Ga. App. 478, 243 S.E.2d 726 (1978).   Time for answering in garnishment proceeding is different.    - In all garnishment proceedings there is a different statutory directive than subsection (e) of this section: the garnishee may not answer before 30 days, and he must answer by the forty-fifth day. Lloyd's of London, Inc. v. Goldkist, Inc., 145 Ga. App. 478, 243 S.E.2d 726 (1978).    Cited in Insurance Co. v. Dills, 145 Ga. App. 183, 243 S.E.2d 549 (1978).