Service of process on trucking companies in Georgia

Service on corporations through officers, managing agents and registered agents

Beyond the registered agent rule in O.C.G.A. 14-2-504(a), when a truck accident defendant is a corporation that has no registered agent, or whose agent cannot with reasonable diligence be served, Section 14-2-504(b) allows service by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the secretary of the corporation at its principal office. Under Section 14-2-504(b)(1) through (b)(3), that service on a truck crash defendant is perfected at the earliest of the date the corporation receives the mail, the date shown on the return receipt if signed on behalf of the corporation, or "Five days after its deposit in the mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed". Section 14-2-504(c) states that the section "does not prescribe the only means, or necessarily the required means, of serving a corporation". The history line on the official page shows the section enacted by Ga. L. 1988, p. 1070, Section 1, and also cites Ga. L. 2000, p. 1589, Section 3.^[1]

Under O.C.G.A. 9-11-4(e), except where the defendant in a truck accident action has waived service, the summons and complaint are served together by delivering a copy of the summons attached to a copy of the complaint, and the plaintiff furnishes the clerk with the necessary copies. For a truck crash defendant that is a corporation within Section 9-11-4(e)(1)(A), delivery goes "to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof". When for any reason service in such a truck accident suit cannot be had in that manner, the Secretary of State shall be an agent of the corporation or foreign corporation upon whom any process, notice or demand may be served. Service on the Secretary of State is made by delivering to and leaving with the Secretary of State, or a person the Secretary of State designates to receive it, a copy of the process along with a copy of the affidavit to be submitted to the court.^[6]

In a truck accident suit served this way, the plaintiff or the plaintiff's attorney certifies in writing to the Secretary of State that the process was forwarded by registered mail or statutory overnight delivery to the last registered office or registered agent on the Secretary of State's records and that service cannot be effected at that office. The certification adds that the corporation therefore appears to have failed either to maintain a registered office or to appoint a registered agent in Georgia. If the certification shows a last known address of a known officer of the truck crash defendant outside Georgia, the plaintiff, in addition to and after the service upon the Secretary of State, mails or causes to be mailed to that officer a copy of the summons and a copy of the complaint by registered or certified mail or statutory overnight delivery. Any service by certification to the Secretary of State is answerable not more than 30 days from the date the Secretary of State receives the certification. Court decisions applying the reasonable diligence conditions in Section 14-2-504(b) and Section 40-1-112(c) to a particular truck accident case are outside this entry.^[6][1][3]

For a corporate defendant in a truck crash case, Section 9-11-4(e)(1)(B) provides that the term "managing agent" in paragraph (1) means a person employed by a corporation or a foreign corporation "who is at an office or facility in this state and who has managerial or supervisory authority" for that corporation or foreign corporation.^[6]

When a truck crash suit is an action against a foreign corporation doing business in Georgia without authorization to transact business there, or against a nonresident individual, partnership, joint-stock company or association doing business in Georgia, and the defendant has a managing agent, Section 9-11-4(e)(2)(A) directs service to that agent or to a registered agent designated for service of process. Section 9-11-4(e)(2)(B) provides that, for paragraph (2), managing agent means a person employed by such a defendant who is at an office or facility in Georgia and who has "managerial or supervisory authority for such foreign corporation" or for the nonresident individual, partnership, joint-stock company or association involved. In all other cases, including a truck driver sued personally whom paragraphs (1) through (6) do not reach, Section 9-11-4(e)(7) allows service on the defendant personally, by leaving copies at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing there, or by delivery "to an agent authorized by appointment or by law to receive service of process".^[6]

Section 9-11-4(e)(3) and (e)(4) govern service on minors and on persons judicially declared to be of unsound mind. Section 9-11-4(e)(5) governs service on a county, municipality, city or town named in a truck accident suit, and on any other public body or organization subject to an action. Section 9-11-4(e)(6) addresses actions where the principal sum involved is less than $200.00 and reasonable efforts at personal service have been made. The notes on the official page for Section 9-11-4 state that the 2013 amendment, effective July 1, 2013, added the subparagraph (e)(1)(A) designation and subparagraph (e)(1)(B). The same notes state that the 2013 amendment rewrote paragraph (e)(2).^[6]

Designated agents of nonresident motor carriers under O.C.G.A. 40-1-117

Where a truck crash suit is an action or proceeding against a nonresident "motor carrier" growing out of its "carrier operations", O.C.G.A. 40-1-117(a) supplies the agent for service. Each such nonresident designates and maintains in Georgia an agent or agents upon whom all summonses or other lawful processes may be served, before any certificate or permit is issued to it under Part 2 of Article 3 of Chapter 1 of Title 40, or at the time of registering as required by Section 40-2-140. In a truck accident action of that kind, service upon, or acceptance or acknowledgment of service by, a designated agent has the same legal force and validity as service upon the nonresident personally. The designation is in writing and gives the name and address of each agent. It is filed in the office of the state revenue commissioner.^[4]

When such a nonresident fails to file the designation with the state revenue commissioner or to maintain an agent in Georgia at the address given, Section 40-1-117(a) provides that it is "conclusively deemed to have designated the Secretary of State and his or her successors in office as such agent". In a truck crash action within that subsection, service upon, or acceptance or acknowledgment of service by, the Secretary of State then has the same legal force and validity as personal service on the nonresident, provided that notice of the service and a copy of the process are immediately sent by the Secretary of State to the nonresident by registered or certified mail or statutory overnight delivery, return receipt requested, if its address is known. For a truck accident defendant of that kind, service upon the Secretary of State is made by delivering to that office two copies of the process with a fee of $10.00.^[4]

When a truck crash action against a "resident or nonresident motor carrier" seeks damages by reason of any breach of duty, whether contractual or otherwise, or rests on a violation of the article or of a requirement established by the state revenue commissioner, Section 40-1-117(b) provides that, except where the Constitution requires otherwise, the action may be brought in the county where the cause of action or some part of it arose. In such a truck accident action, if the defendant or its agent "shall not be found for service in the county where the action is instituted", a second original may be issued and service made in any other county where service can be made upon the defendant or its agent. Section 40-1-117(b) makes the venue it prescribes cumulative of any other venue provided by law.^[4]

Under Section 40-1-117(c), except where the Constitution requires otherwise and for the purposes of venue only, a truck engaged exclusively in the transportation of agricultural or dairy products, or both, between farm, market, gin, warehouse or mill is not classified as a "motor common or contract carrier". Section 40-1-117(d)(1) sets weight, registration, operator and use criteria for a covered farm vehicle, and Section 40-1-117(d)(2) provides that "A covered farm vehicle is not a motor carrier". Under Section 40-1-117(d)(2), a vehicle that federal law requires to be designated under either category is designated as federal law requires, and Section 40-1-117(d)(3) requires a covered farm vehicle to carry a license plate or other special designation from its registration state indicating that status.^[4]

O.C.G.A. 40-1-1(28.1) provides that the terms "carrier" and "motor carrier" are synonymous. The history line on the official page for Section 40-1-117 shows the section enacted by Ga. L. 2012, p. 580, Section 1/HB 865, and also cites Ga. L. 2013, p. 838, Sections 11 and 12/HB 323.^[2][4]

Summons, process servers, proof of service and amendment

In a truck accident case, O.C.G.A. 9-11-4(a) directs the clerk, upon the filing of the complaint, to "forthwith issue a summons and deliver it for service", and upon the plaintiff's request separate or additional summons issue against any defendants. Section 9-11-4(b) requires the summons to be signed by the clerk, to contain the name of the court and county and the names of the parties, to be directed to the defendant, and to state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address. The summons served on a truck crash defendant also states the time within which Chapter 11 of Title 9 requires the defendant to appear and file appropriate defensive pleadings with the clerk, and it notifies the defendant that on failure to do so "judgment by default will be rendered against him or her for the relief demanded in the complaint".^[6]

Under Section 9-11-4(c), process in a truck crash case is served by the sheriff of the county where the action is brought or where the defendant is found, or a deputy, or by the marshal or sheriff of the court, or a deputy. Process may also be served by a citizen of the United States specially appointed by the court, by a non-party not younger than 18 years of age who has been appointed by the court to serve process or as a permanent process server, or by a certified process server. Where service is made outside the United States after an order of publication, a citizen of the United States or a specially appointed resident of the country, territory, colony or province may serve it. When service in a truck accident case is to be made within Georgia, the person making service does so within five days from receiving the summons and complaint, but failure to make service within the five-day period "will not invalidate a later service". Under Section 9-11-4(g), all process may be served anywhere within the territorial limits of the state and, when a statute so provides, beyond those limits.^[6]

Section 9-11-4(h) requires the person serving process in a truck accident case to make proof of service with the court in the county in which the action is pending within five business days of the service date. If proof of service in a truck crash case is not filed within five business days, the time for the served party to answer does not begin to run until the proof is filed. Section 9-11-4(h)(1) and (h)(2) call for the affidavit or certificate of a serving sheriff or marshal, or such official's deputy, or else the affidavit of any other proper person who serves. Section 9-11-4(h)(3) and (h)(4) call for the certificate of the clerk of court certifying to the publication and mailing in a case of publication, or the defendant's written admission or acknowledgment of service. In service otherwise than by publication, the certificate or affidavit states the date and place of service. It also states the manner of service, and failure to make proof of service "shall not affect the validity of the service".^[6]

Under Section 9-11-4(i), the court at any time in its discretion and upon terms it deems just may allow any process or proof of service in a truck crash case to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. Section 9-11-4(j) applies the Section 9-11-4 publication provisions in any action where law authorizes service by publication, and allows that procedure in lieu of a special publication procedure. Where the requirements or procedure for service in a truck accident case are not prescribed by law, or the provisions are not clear or certain, the court may prescribe service according to the exigencies of each case, consistent with the Constitution.^[6]

The history line on the official page for Section 9-11-4 begins with Ga. L. 1966, p. 609, Section 4 and ends with Ga. L. 2013, p. 591, Section 1/SB 113. An editor's note on that page states that Ga. L. 2000, p. 1225, Section 8, not codified by the General Assembly, makes the amendment to Section 9-11-4 applicable to civil actions filed on or after July 1, 2000, a group that includes a truck accident action filed on or after that date.^[6]

Waiver of service under O.C.G.A. 9-11-4(d)

Under O.C.G.A. 9-11-4(d)(1), a truck crash defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant. Under Section 9-11-4(d)(2), upon receipt of notice in the manner that subsection provides, a corporation or association named in a truck accident suit has a duty to avoid unnecessary costs of serving the summons if it is subject to service under Section 9-11-4(e)(1) or (2) and receives notice of the action by an agent other than the Secretary of State. The same duty applies to a natural person, such as an individual truck driver, who is not a minor and has not been judicially declared to be of unsound mind or incapable of conducting his or her own affairs.^[6]

Section 9-11-4(d)(3) allows the plaintiff in a truck crash case, to avoid costs, to notify such a defendant of the commencement of the action and request a waiver of service. Under Section 9-11-4(d)(3)(A), the notice and request to a truck accident defendant is in writing and is addressed directly to the defendant, if an individual, or else, for a defendant subject to service under Section 9-11-4(e)(1) or (2), to an officer or managing or general agent or other agent authorized by appointment to receive service of process. Section 9-11-4(d)(3)(B) requires that it "Be dispatched through first-class mail or other reliable means", and Section 9-11-4(d)(3)(C) requires that it be accompanied by a copy of the complaint and identify the court in which the complaint has been filed.^[6]

Section 9-11-4(d)(3)(D) requires that the notice and request "Make reference to this Code section" and inform the defendant, through the text prescribed in Section 9-11-4(l), of the consequences of compliance and of failure to comply with the request. Section 9-11-4(d)(3)(E) requires it to set forth the date on which the request is sent. Section 9-11-4(d)(3)(G) requires it to "Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing". For a truck accident defendant, Section 9-11-4(d)(3)(F) requires a reasonable time to return the waiver, at least 30 days from the date the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States.^[6]

If a truck crash defendant located within the United States that is subject to service inside or outside Georgia under Section 9-11-4 fails to comply with a waiver request made by a plaintiff located within the United States, Section 9-11-4(d)(4) directs the court to impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown. Under Section 9-11-4(d)(7), the costs imposed under paragraph (4) when good cause is not shown include the costs subsequently incurred in effecting service, together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service.^[6]

Under Section 9-11-4(d)(5), a truck accident defendant that, before being served with process, returns a requested waiver in a timely manner is not required to serve an answer until 60 days after the date the request for waiver was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States. Under Section 9-11-4(d)(6), when the plaintiff in a truck crash case files a waiver of service with the court, the action proceeds, except as provided in paragraph (5), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service is required.^[6]

Joining the motor carrier's insurer when personal service cannot be effected

When a truck crash claim is a cause of action arising under Part 2 of Article 3 of Chapter 1 of Title 40, whether in tort or contract, O.C.G.A. 40-1-112(c)(1) permits any person having such a cause of action to "join in the same action the motor carrier and the insurance carrier" only when "One or more motor carriers related to the cause of action are insolvent or bankrupt", or when personal service as provided in Section 9-11-4(e) cannot after reasonable diligence be effected against the driver of the defendant's vehicle giving rise to the cause of action or against that defendant. Per the official code hierarchy, Section 40-1-112 sits in that same part, which also holds Section 40-1-117.^[3][4][6]

When a truck accident claim is a cause of action under Section 40-2-140, whether arising in tort or contract, Section 40-2-140(d)(4)(A) allows any person having such a cause of action to "join in the same cause of action the motor carrier and its insurance carrier" only when "One or more motor carriers related to the cause of action are insolvent or bankrupt", or when personal service under Section 9-11-4(e) cannot after reasonable diligence be effected against the driver of the defendant's vehicle giving rise to the cause of action or against that defendant. Section 40-2-140 sits in Article 6A of Chapter 2 of Title 40.^[5][6]

In a truck crash case, Section 40-2-140(d)(4)(B) and Section 40-1-112(c)(2) each provide that when the insolvency or bankruptcy condition is met, or personal service cannot after reasonable diligence be effected against the driver or the defendant whose vehicle gave rise to the cause of action, "the insurance carrier may be joined in the action as a matter of right, without motion or order of the court", by filing an amended complaint joining it. The amended complaint in a truck accident action is served on the insurer under Section 9-11-4, and "such insurance carrier shall file an answer with the court within 30 days of service". Section 40-2-140(d)(4)(C) and Section 40-1-112(c)(3) each provide that the amended complaint relates back to the date of filing of the original pleading.^[3][5][6]

Under Section 40-2-140(a), the term commissioner, as used in that section, means "the commissioner of public safety". Section 40-2-140(d)(1) requires any intrastate "motor carrier" or leasing company leasing to one, and any broker or freight forwarder, that engages in intrastate commerce and operates a motor vehicle on or over any public highway of Georgia to register with the commissioner and pay a fee the commissioner determines.^[5]

Section 40-2-140(d)(2) bars registration of a "for-hire intrastate motor carrier" unless a certificate of insurance, on forms prescribed by the commissioner and evidencing a policy of indemnity insurance by an insurer licensed to do business in Georgia, is filed with the commissioner, who determines and fixes the amounts of that insurance. The policy protects passengers in passenger vehicles and protects the public against the negligence of the registrant and its servants or agents when that negligence is determined to be the proximate cause of any injury. The insurer files the certificate and may file it electronically, and failure to file any form the commissioner requires does not diminish the right of any person, including a truck accident claimant, to pursue an action directly against the registrant's insurer. Section 40-2-140(d)(3) gives the commissioner the power to permit self-insurance in lieu of a policy of indemnity insurance "whenever in his or her opinion the financial ability of the motor carrier so warrants".^[5]

Section 40-1-112(a) bars issuance of a certificate to a "motor carrier of household goods or property or passengers" unless a certificate of insurance, on forms prescribed by the commissioner and evidencing a policy of indemnity insurance by an insurer licensed to do business in Georgia, is filed with the department, which determines and fixes the amounts of that insurance. Under Section 40-1-112(a), failure to file any form the department requires does not diminish the right of any person, including a party to a truck crash suit, to pursue an action directly against the insurer, and Section 40-1-112(b) gives the department power to permit self-insurance "whenever in its opinion the financial ability of the motor carrier so warrants".^[3]

Publication, foreign country service, waiver forms and Department notice rules

O.C.G.A. 9-11-4(f), on service by publication, personal service outside Georgia on natural persons, service on persons in a foreign country and access to gated and secured communities, is outside this entry. O.C.G.A. 9-11-4(l), which sets out the forms for a waiver request and a waiver, followed by a notice of the duty to avoid unnecessary costs of service, is also outside this entry. Ga. Comp. R. & Regs. 570-38-1-.10, which governs notice under the Department's chapter to an "applicant or carrier", including notice in the case of "non-resident motor carriers" to agents designated under O.C.G.A. 40-1-117, is outside this entry as well.^[6][7]

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)