What You Don’t Know Can Hurt You: Mastering Georgia’s Nonresident Motorist Act
By: Dy Harris & Mollie Beth Amick
When an out-of-state driver causes an automobile accident in Georgia, the Nonresident Motorist Act (NRMA) offers a means of serving process on that driver. However, this statute can often be confusing and unforgiving for unwitting defendants. In an age of increased litigation, properly navigating its service requirements can make or break a case.
When the defendant driver in a lawsuit arising from an automobile accident in Georgia resides outside the state, Georgia law permits service of process on the nonresident driver “by serving a copy of the complaint or other pleading with summons attached thereto on the Secretary of State . . . along with a copy of the affidavit to be submitted to the court . . . .” O.C.G.A. § 40-12-2; see also Tate v. Hughes, 255 Ga. App. 511, 511 (2002). Simply put, the NRMA requires that plaintiffs: (1) serve the Secretary of State with the complaint and summons; (2) send a copy of those materials to the defendant via certified mail (or statutory overnight delivery); and (3) properly file the defendant’s return receipt and an affidavit of compliance. Within three days of receipt of the summons and complaint, the Secretary of State must certify to the court in which the action is pending that the summons or process has been filed in his office. O.C.G.A. § 40-12-5. Once the Clerk of Court receives this certification from the Secretary of State, the defendant has 30 days in which to answer the complaint. Id.
Strict vs. Imperfect Service: The Actual Notice Dilemma
Service under the NRMA can appear harsh because where a plaintiff strictly complies with the statute, service is technically perfected “irrespective of whether the defendant actually received such notice.” Tate, 255 Ga. App. at 512 (quoting Mull v. Taylor, 68 Ga. App. 663 (1942)). In Tate, the plaintiff sent the summons and complaint to the defendant — a Texas resident — by certified mail, but the mail went unclaimed. Nonetheless, service stood because the post office left multiple notices for the defendant to pick up the mail. Id. Noting the defendant did not deny having received notice from the postal service that certified mail was available for pickup, the court of appeals reasoned “[h]aving strictly complied with the statute, [the plaintiff] should not be made to suffer the consequences of [the defendant]’s neglect in collecting her mail.” Id.
Hence, a defendant’s complaint that she “never received the lawsuit” may not defeat service if there is evidence the postal authorities at least notified the defendant that mail was waiting. See Bowers v. Winter, 228 Ga. App. 530 (1997). This is true even where certified mail is marked “refused by addressee” or “UNCLAIMED.” Id. However, when postal authorities do not give any notice to the defendant, service may fail. See Stone v. Sinkfield, 70 Ga. App. 787, 790 (1944) (reversing a finding of proper service where there was no evidence that postal authorities gave any notice to the non-resident defendant that mail was being held for pickup).
Even imperfect compliance with the NRMA may not invalidate service where the defect concerns proof of service rather than service itself and the defect is later cured. Rielly v. Crook, 112 Ga. App. 334 (1965); see also Smith v. Sanders, 360 Ga. App. 286, 289 (2021). In Smith, the plaintiff’s affidavit of compliance was not notarized — an error the court of appeals deemed curable. The plaintiff moved for a default judgment after the defendant, who was properly served pursuant to the NRMA, failed to timely answer the complaint. Id. at 287. The trial court denied the plaintiff’s motion based on the fact that the affidavit of compliance submitted to the Secretary of State by the plaintiff’s counsel was not notarized. Id. The court of appeals reasoned that the failure to file a properly notarized affidavit only invalidated the proof of service rather than the service itself, and the plaintiff’s counsel cured the defect by subsequently filing a properly notarized affidavit. Id. at 289.
Practical Implications for Insurance Professionals
As these cases demonstrate, even though the NRMA requires strict compliance on the part of plaintiffs, the statute can be unforgiving to nonresident defendants expecting the formality of personal service. When presented with a case involving a nonresident defendant, do not rely on the defendant’s knowledge of the lawsuit to establish if service has been perfected. Check the Clerk’s docket first to determine whether the Secretary of State has certified its receipt of the summons and complaint, and remember that when it comes to nonresident motorist defendants, the plaintiff’s strict compliance with the NRMA could be more important than the defendant’s actual notice of the lawsuit.
Attorney Contact Info
Dy Harris
dy.harris@swiftcurrie.com
404.888.6137
Mollie Beth Amick
molliebeth.amick@swiftcurrie.com
404.888.6175