Failure to Serve Uninsured Driver In Time (Statute of Limitation)

where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. Forsyth v. Brazil, 169 Ga. App. 438 (313 S.E.2d 138) (1984); Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 S.E.2d 33) (1990) (applying Brazil to uninsured motorist case). If the plaintiff is unable to obtain personal service, then O.C.G.A. 33-7-11 (e) of the uninsured motorist statute allows service by publication upon a showing of due diligence. Smith v. Commercial Union Assurance Co., 246 Ga. 50, 52 (268 S.E.2d 632) (1980). In order to obtain service by publication, the plaintiff must show due diligence in determining whether the defendant was either out of state or avoiding service. O.C.G.A. 33-7-11 (e); Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 171 (520 S.E.2d 917) (1999). 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." Id. at 729. In Pickens v. Nationwide &c. Ins. Co., 197 Ga. App. 550 (398 S.E.2d 792) (1990), this court held that the plaintiff's failure to move for service by publication for more than four months from the date of filing when the complaint was filed shortly before the running of the statute of limitation, combined with the fact that the plaintiff knew the defendant could not be found in the state when the complaint was filed, was sufficient support for a finding of lack of due diligence.