Opinion
A00A0879.
DECIDED: JUNE 13, 2000
Wrongful death. Spalding State Court. Before Judge Cramer.
McLain Merritt, M. David Merritt, Thomas J. Melanson, for appellants.
Elizabeth Pelypenko, for appellees.
Acting as the representative of her mother's estate and as a surviving child, Dorothy A. Jester brought suit for wrongful death and personal injuries arising from an accident in which Jester's mother, Evelyn J. Clemons, was struck and fatally injured by a car driven by Angela M. Parker and owned by Ms. Parker's father, Riley Parker. Naming both Parkers as defendants, the suit alleged that Angela Parker negligently drove the car and that Riley Parker negligently entrusted the car to Ms. Parker. After the applicable statute of limitation had expired, Jester dismissed the suit and refiled it within six months under the renewal provisions of O.C.G.A. § 9-2-61 (a). Jester later amended the renewed suit to add a claim against Riley Parker under the family purpose doctrine.
Both Parkers claim on appeal that the trial court erred by denying their motions for summary judgment in the renewed suit. Angela Parker claims that, because she was never served with the original suit, the renewed suit against her was barred by the statute of limitation. Riley Parker claims that the evidence of record shows that he was not liable. For the reasons which follow, we find that both Parkers were entitled to summary judgment.
1. The trial court erred by denying Angela Parker's motion for summary judgment.
It is undisputed that Angela Parker was never served with the original suit, and that the statute of limitation on Jester's claims expired before the original suit was dismissed and renewed under O.C.G.A. § 9-2-61 (a). Because service was not perfected, the original suit against Angela Parker was void and incapable of being renewed under O.C.G.A. § 9-2-61 (a). Hobbs v. Arthur, 264 Ga. 359, 360 ( 444 S.E.2d 322) (1994); Sparrow v. Che, 232 Ga. App. 184, 185 ( 501 S.E.2d 553) (1998). Under these circumstances, the renewal provisions of O.C.G.A. § 9-2-61 (a) did not protect the second suit against Ms. Parker from the bar of the statute of limitation. Id.
2. The trial court also erred by denying Riley Parker's motion for summary judgment.
After a hearing on the motion, the trial court denied Mr. Parker's motion for summary judgment on Jester's claim that he was vicariously liable for Angela Parker's negligence under the family purpose doctrine. The facts establish, however, that Riley Parker was not liable under this claim. A necessary precondition for application of the family purpose doctrine in this case is evidence that Angela Parker was a member of the immediate household of her father, Riley Parker. Jackson v. Reed, 229 Ga. App. 433, 435 ( 494 S.E.2d 52) (1997); Greene v. Jenkins, 224 Ga. App. 640, 641-644 ( 481 S.E.2d 617) (1997). The evidence shows that, at the time of the accident, Angela Parker was a 20-year-old adult who lived at a residence separate and apart from her father's residence. Ms. Parker's affidavit shows that her father gave her permission to drive the car, and that she was driving it for her own purposes when the accident occurred. The loan of a car to an adult daughter not living in the immediate household with Mr. Parker does not support the imposition of vicarious liability under the family purpose doctrine. Id; Jackson, 229 Ga. App. at 435.
At the summary judgment hearing, the trial court orally announced that it was granting summary judgment to Riley Parker on the negligent entrustment claim. However, no written order was ever entered on this ruling, and this issue is not before us on appeal.
Although not before us on appeal because the issue was not raised by the parties or ruled on by the trial court, we note that Riley Parker was entitled to summary judgment on the family purpose doctrine claim for an additional reason. To qualify as a renewal of the original suit under O.C.G.A. § 9-2-61 (a) so as to suspend the running of the statute of limitation, the renewed suit must be substantially the same as the original suit as to the cause of action. Sheldon Co. v. Emory Univ., 184 Ga. 440 ( 191 S.E. 497) (1937). Since Jester did not allege a cause of action under the family purpose doctrine in the original suit, the renewal provisions of § 9-2-61 (a) did not protect this claim from the bar of the statute of limitation.
Contrary to Jester's contention, a factual issue was not created by the fact that Angela Parker's sister, who was a member of Mr. Parker's immediate household, was present in the car at the time of the accident. This is not a case where family purpose liability could be predicated upon facts showing that the member of the immediate household who was given permission to drive the car was present in the car and permitted a third person to drive the car. See Phillips v. Dixon, 236 Ga. 271 ( 223 S.E.2d 678) (1976). Here, the facts show that Mr. Parker gave permission to drive the car to his adult daughter who was not a member of his immediate household.
Judgment reversed. Ruffin and Ellington, JJ., concur.