Soley v. State Farm Mut. Auto. Ins. Co.

600 S.E.2d 707 (2004)

267 Ga.App. 606

SOLEY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. A04A0076.

Court of Appeals of Georgia.

May 27, 2004.

Certiorari Denied September 7, 2004.

*708 Carl A. Veline, Jr., Warner Robins, Waymon S. Harrell, Perry, for appellant.

Martin Snow, Henry D. Bullard, Macon, for appellee.

MIKELL, Judge.

Michelle Soley suffered personal injuries during a collision between a vehicle in which she was a passenger and a vehicle driven by Clarence Dodson, Jr., a Houston County sheriff's deputy, during a police chase. Soley sued Dodson in his individual capacity, but the trial court ruled that the action was barred by official immunity. Soley later sued Dodson in his official capacity, but the trial court granted summary judgment to Dodson on the ground that the action was barred by the statute of limitation. We affirmed the trial court's order.[1] Soley then amended her complaint to reflect that State Farm Mutual Automobile Insurance Company ("State Farm") was her uninsured motorist carrier, and she demanded that she be permitted to proceed to trial in a John Doe action to establish the damages caused by Dodson. State Farm moved for summary judgment. The trial court granted the motion, ruling that Soley could not establish that she was legally entitled to recover from Dodson, as required by OCGA § 33-7-11(a)(1), because she failed to sue him in his official capacity within the two-year statute of limitation. Soley appeals, and we affirm for the reasons set out in Ward v. Allstate Ins. Co.[2]

At the time of the collision, Soley was a passenger in a vehicle owned and driven by Warren Ward, the appellant in Ward II. Ward brought a suit, identical to Soley's, against Dodson in his official capacity after the statute of limitation expired,[3] and, as in the case at bar, amended his complaint to assert an uninsured motorist claim.[4] On appeal from the grant of summary judgment to Ward's uninsured motorist carrier, we held that the exception to the rule that the insured must be legally entitled to recover from the uninsured motorist in order to obtain coverage[5] only applies in instances in which it would have been impossible to obtain a judgment against the uninsured motorist based on a legal barrier unrelated to any procedural misstep of the injured party.[6] And, "[b]ecause insurance was potentially available to the motor vehicle driven by Dodson, and because recovery for Ward's injuries was legally possible but for Ward's procedural missteps, we conclude[d] that the reasoning behind" the exception to the rule did not apply.[7] Therefore, Ward could not show that he was legally entitled to recover from Dodson, precluding recovery from his uninsured motorist carrier. The case at bar is indistinguishable from Ward II, and the trial court correctly granted summary judgment to State Farm.

Judgment affirmed.

BLACKBURN, P.J., and BARNES, J., concur.

[1] Soley v. Dodson, 256 Ga.App. 770, 569 S.E.2d 870 (2002).

[2] 265 Ga.App. 603 (595 S.E.2d 97) (2004) (Ward II).

[3] Ward v. Dodson, 256 Ga.App. 660, 569 S.E.2d 554 (2002) (Ward I).

[4] Ward II, supra.

[5] Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976) (bankruptcy); Georgia Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga.App. 540, 597 S.E.2d 430 (2004) (immunity of alleged tortfeasor under no-fault act of state where accident occurred); Tinsley v. Worldwide Ins. Co., 212 Ga.App. 809, 442 S.E.2d 877 (1994) (sovereign immunity).

[6] Ward II, supra.

[7] Id. at 605, 595 S.E.2d 97