Nevertheless, the amendment did not "eliminate the need to meet the condition precedent of a judgment against the uninsured motorist; it simply provided the means by which the condition precedent could be met."McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728, 402 S.E.2d 519 (1991) (punctuation omitted); accord State Farm Mut. Auto. Ins. Co. v. Noble, 208 Ga. App. 518, 519, 430 S.E.2d 804 (1993); see Hayward v. Retention Alternatives Ltd., 291 Ga. App. 232, 235 (2), 661 S.E.2d 862 (2008) ("[A]bsent sufficient service on the tortfeasor, a claimant cannot recover from his or her UM carrier.").Noble, 208 Ga. App. at 519, 430 S.E.2d 804.
In affirming the dismissal, this Court cited plaintiff's lack of any effort to locate or serve the uninsured motorist for three months between the initial failed attempt and the insurer's motion to dismiss. 198 Ga. App. 727 ( 402 SE2d 519) (1991).Brown, supra at 314 (1).
When the defendant has not been served, on an appropriate motion the trial judge must examine the facts and determine whether the plaintiff was guilty of laches in failing to serve the defendant in a diligent manner. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728 ( 402 S.E.2d 519) (1991). This determination "is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse."
It follows that summary judgment was also correctly granted to Phoenix as the uninsured motorist insurance carrier. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 729 ( 402 S.E.2d 519). Judgment affirmed.
In order to recover benefits under the uninsured motorist policy issued by Atlanta Casualty, the Manns must, as a condition precedent, recover a judgment against McFarland, the uninsured motorist. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728 ( 402 S.E.2d 519) (1991). The action against McFarland is only viable if the Manns can show that the applicable limitation period was tolled at the time service was perfected belatedly upon McFarland.
In those cases, the court has allowed liability defenses available to the uninsured motorist to inure to the benefit of the uninsured motorist carrier. See Boles, supra; Lowes v. Allstate Ins. Co., 204 Ga. App. 148 (1) ( 418 S.E.2d 465) (1992); McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727 ( 402 S.E.2d 519) (1991). However, in those cases, plaintiffs suffered dismissals of their complaints first against uninsured motorists "on the merits," based on lack of service or jurisdiction.
" (Citations and punctuation omitted.) McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728-729 ( 402 S.E.2d 519) (1991). The trial court did not abuse its discretion in finding that Walker was guilty of laches in failing to exercise due diligence in perfecting service on Stiles and Morrow. Walker did not file his complaint until one month prior to the expiration of the two-year statute of limitation. It is unclear from the record why Walker delayed filing his complaint until the statute of limitation had almost expired.