State Farm Mut

Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 502 S.E.2d 778 (1998), aff ’d, 271 Ga. 77, 515 S.E.2d 832 (1999). Subrogation rights of uninsured motorist insurer. — Although uninsured motorist coverage in a policy provided the insurer was subrogated to the rights of recovery of its insured, the right of action belonged to the insured, and any action against the uninsured motorist had to be brought in the name of the insured. Generali — United States Branch v. Owens, 218 Ga. App. 584, 462 S.E.2d 464 (1995); Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 486 S.E.2d 427 (1997). An insurer could not file a subrogation action in its own name because O.C.G.A. § 44-12-24 prohibits the assignment of rights of action for personal torts. State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 502 S.E.2d 778 (1998), aff ’d, 271 Ga. 77, 515 S.E.2d 832 (1999). Filing a cross-claim pursuant to subsection (f ) of O.C.G.A. § 33-7-11 is simply a means of perfecting an insurer’s subrogation right in the event that a judgment is obtained against the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Wright, 245 Ga. App. 493, 538 S.E.2d 147 (2000). The subrogation claim under subsection Procedure (Cont’d) (f ) does not ripen until the judgment is satisfied. State Farm Mut. Auto. Ins. Co. v. Wright, 245 Ga. App. 493, 538 S.E.2d 147 (2000). Injured insured’s uninsured motorist insurer could sue a tortfeasor in subrogation as provided in O.C.G.A. § 33-7-11(f ) even after the insured had released the tortfeasor from personal liability, pursuant to O.C.G.A. § 33-24-41.1, except to the extent that insurance coverage, other than the tortfeasor’s personal liability policy, existed. Ramos-Silva v. State Farm Mut. Ins. Co., 300 Ga. App. 699, 686 S.E.2d 345 (2009). Subrogation rights not barred. — Because an uninsured motorist insurer was required to pay a valid claim to its insured within 60 days, the payment was not voluntary so as to bar subrogation rights of the insurer. Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 486 S.E.2d 427 (1997). Subrogation action by insurer in its own name is not authorized by subsection (f ) of O.C.G.A. § 33-7-11. State Farm Mut. Auto. Ins. Co. v. Cox, 271 Ga. 77, 515 S.E.2d 832 (1999). Rules of procedure apply to insurer assuming status of named party. — To the extent that an insurer may purport to act directly in its own name and thereby elect to assume the status of a named party, the rules of practice and procedure apply to it, commencing when service is perfected. Glover v. Davenport, 133 Ga. App. 146, 210 S.E.2d 370 (1974). Rules of procedure apply to insurer acting in name of tortfeasor. — Whether the insurer acted in its own name and thereby elected to assume the status of a named party or in the name of the tortfeasor, the rules of practice and procedure applied to it. Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 230 S.E.2d 363 (1976). Time for filing answer by uninsured motorist carrier. — Lewis v. Waller, 282 Ga. App. 8 (2006) notes that to the extent that the uninsured motorist carrier (UMC) purports to act directly in the carrier’s own name, the carrier’s answer is timely if filed within 30 days from service of the answer and complaint upon the UMC; however, in the opinion from Lewis, the phrase ‘‘answer and complaint’’ should actually read summons and complaint, and the Georgia Court of Appeals corrects that typographical error. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014). Known uninsured motorist’s default cannot defeat insurer’s right to defend. — Although the named, served uninsured motorist defendant could and did waive his right to defend against the action, his waiver and default cannot be permitted to injure the statutory right of the uninsured motorist insurer to defend the action in its own name, which would be the result if the insurer were held to be bound by the defendant’s admissions. Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 230 S.E.2d 363 (1976). Default of the known uninsured motorist will not defeat the insurer’s statutory right to defend the action in its name. Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977). One of the options granted to the uninsured motorist insurer by subsection (d) of this section is that it may elect to ‘‘file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.’’ Thus, the insurer may plead or assert any available defense in the name of the owner, operator, or itself and will not be bound by the actions of the other defendant — even if the other defendant defaults — for a default cannot defeat the insurer’s statutory right to defend the action in its name. J.C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258, 253 S.E.2d 878 (1979). Insurer can only remove uninsured’s default in accordance with rules of procedure. — If the insurer purports to act in the name of one of the alleged tortfeasors, its action for that party is governed by the rules of practice and procedure applicable to that party, and if that party is in default, it can only remove the default or defend the action in the same manner and to the extent allowed by law for a party in default. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970). If acting in own name, may be in default itself. — If an insurer purports to act directly in its own name, and thereby elects to assume the status of a named party, the rules of practice and procedure apply to it, commencing when service is perfected as though actually named as a party defendant, and thus, to preserve its rights as to this status, it must act within the time provided by law to avoid default, and failing to do so, it is in no better position than a defaulting party. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Planet Ins. Co. v. Woods, 123 Ga. App. 752, 182 S.E.2d 520 (1971). Insurer could not collaterally attack judgment against uninsured motorist, in insured’s action to recover a judgment, by relying on extraneous evidence to show that the uninsured motorist had not been properly served in the underlying action. Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 377 S.E.2d 210, cert. denied, 189 Ga. App. 911, 377 S.E.2d 210 (1988). If uninsured motorist unknown, action must be against ‘‘John Doe.’’ — The word ‘‘may’’ as used in subsection (d) of this section must be interpreted to mean that an action ‘‘shall’’ be brought against the uninsured motorist as ‘‘John Doe,’’ if the uninsured motorist is unknown. U.S. Fid. & Guar. Co. Co. v. Lockhart, 229 Ga. 292, 191 S.E.2d 59 (1972). Action against ‘‘John Doe’’ defendant. — An action may be instituted against a ‘‘John Doe’’ defendant only when the owner or operator of the vehicle is unknown. Where known, he or she must be named as a defendant, although service by publication is authorized if after due diligence such defendant cannot be found within the state. Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 448 S.E.2d 374 (1994). If insurer and insured dispute identity of uninsured, it is tried in ‘‘John Doe’’ action. — The General Assembly intended the ‘‘John Doe’’ procedure to be available only in a situation where the person who caused the injury or damage is an actual ‘‘unknown’’ motorist. If the plaintiff and his insurer are in dispute about this, the question of identity becomes an issue in the ‘‘John Doe’’ proceeding and is subject to the usual modes of determination. State Farm Mut. Auto. Ins. Co. v. Godfrey, 120 Ga. 560, 171 S.E.2d 735 (1969). Jurisdiction over ‘‘John Doe’’ defendant. — Presumption that the residence of an unknown uninsured motorist is in the county in which the accident occurred, or in the county of residence of the plaintiff, applies to personal jurisdiction as well as venue; thus, the court had jurisdiction over a ‘‘John Doe’’ defendant where the action was brought in the county of plaintiff ’s residence. Allstate Ins. Co. v. Duncan, 218 Ga. App. 552, 462 S.E.2d 638 (1995). The purpose of a John Doe action is merely to fix the liability of the uninsured motorist carrier to its policy-holder for loss caused by an unknown tortfeasor. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986). Insured’s filing of a ‘‘John Doe’’ action with service on his uninsured motorist insurance carrier constituted a valid, pending action which was voidable rather than void, and which was capable of being renewed under O.C.G.A. § 9-2-61. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848 (1997). It does not defeat unknown tortfeasor’s due process rights. — A John Doe action does not operate to defeat the unknown tortfeasor’s due process rights. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986). By electing to participate directly in a suit by filing an answer in its own name, rather than in the name of John Doe (or, where appropriate, in the name of the uninsured motorist), uninsured motorist carrier assumed the status of a named party as a matter of law. Langford v. Royal Indem. Co., 208 Ga. App. 128, 430 S.E.2d 98 (1993). Service requirement of subsection (d) is a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the uninsured motorist carrier following a tort judgment in favor of the plaintiff. Bohannon v. Futrell, 189 Ga. App. 340, 375 S.E.2d 637 (1988), aff ’d, 259 Ga. 162, 377 S.E.2d 853 (1989); Smith v. Allstate Procedure (Cont’d) Ins. Co., 199 Ga. App. 264, 404 S.E.2d 593 (1991), cert. denied, 199 Ga. App. 907, 404 S.E.2d 593 (1991); Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 421 S.E.2d 780 (1992). Subsection (d) of O.C.G.A. § 33-7-11 requires service upon both the uninsured motorist and the uninsured motorist carrier. The plaintiff bears the burden of investigating and learning the defendant’s whereabouts. Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 398 S.E.2d 792 (1990). Insured cannot avoid the mandate of subsection (d) of O.C.G.A. § 33-7-11 for timely service upon the insurance carrier; thus, filing a motion to add the carrier as a party before expiration of the statute of limitations provided no justification for failing to serve the carrier when the suit was filed. Peoples v. State Farm Mut. Auto. Ins. Co., 211 Ga. App. 55, 438 S.E.2d 167 (1993). The statute of limitations applying to service on an uninsured motorist carrier was not tolled until the plaintiffs discovered the possible existence of a phantom driver. USF & G Ins. Co. v. Myers, 214 Ga. App. 851, 449 S.E.2d 359 (1994). Injured party’s claim for uninsured motorist benefits was dismissed where the injured party, after failing to perfect service as to the driver, incurred the heightened obligation of exercising the greatest possible diligence to ensure proper and timely service when the insurer raised the defense of defective service, but failed to seek a special process server immediately and failed to move for service by publication until almost two months later. Barabont v. Villanueva, 261 Ga. App. 839, 584 S.E.2d 74 (2003). When insured brought suit against a driver for negligence, but did not serve the insured’s excess uninsured motorist (UM) carrier under O.C.G.A. § 33-7-11 until after renewing the suit under O.C.G.A. § 9-2-61, it was error to grant summary judgment to the excess carrier on ground that service was untimely; purpose of § 33-7-11(d) is to provide notice to a UM carrier, not to obtain personal jurisdiction over it or to make it a party defendant, 33-7-11 and service on a UM carrier was permissible at any time within which valid service could be made on the defendant. Hayward v. Retention Alternatives, Ltd., 291 Ga. App. 232, 661 S.E.2d 862 (2008), aff ’d, 285 Ga. 437, 678 S.E.2d 877 (2009). Even if not party, insurer has right to notice as though defendant. — While not actually a defendant, though it can defend the case in its own name, the uninsured motorist carrier has a strong financial interest in the litigation and as such, it is entitled to notice of the pendency of the action on the same basis as though a defendant. Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff ’d, 236 Ga. 582, 224 S.E.2d 416 (1976). The insured’s uninsured motorist carrier was entitled to be served with notice of defendant’s cross-claim as if it were the defendant named in that claim. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 216 Ga. App. 384, 454 S.E.2d 587, aff ’d, 265 Ga. 836, 462 S.E.2d 713 (1995). Trial court did not err in granting the employer’s insurer’s motion to dismiss after the plaintiffs failed to serve the employer’s insurer as though the insurer were actually a named party defendant. Sharpe v. Great Midwest Ins. Co., 344 Ga. App. 208, 808 S.E.2d 563 (2017), cert. denied, 2018 Ga. LEXIS 506 (Ga. 2018). It must be served if uninsured motorist is known. — Subsection (d) of this section provides that a copy of petition and process (now a copy of the action and all pleadings thereto) be served upon the injured party’s insurance company in case of an action against a known uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966); State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 152 S.E.2d 641 (1966). Notice is required if uninsured motorist is unknown or if uninsured motorist cannot be found. — Under subsection (d) of this section, the insurance company receives the same notice whether the tortfeasor is unknown or whether his identity (actual or putative) is known but he is not to be found and therefore cannot be served. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012). Where an uninsured motorist had never been served with process, either personally or by publication, the insured plaintiff had not fulfilled the statutory condition precedent of perfected service against the missing uninsured motorist tortfeasor. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 392 S.E.2d 33 (1990). Pleadings amendment provisions inapplicable. — The relation back provisions of O.C.G.A. § 9-11-15(c), governing amendment of pleadings, do not apply to situations involving service of an uninsured motorist carrier, if for no other reason than simply because such service does not necessarily result in the insurer becoming a party to the action. State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 383 S.E.2d 157, cert. denied, 191 Ga. App. 923, 383 S.E.2d 157 (1989). If insurer not served in time, subsequent service does not relate back. — Where no effort is made to serve the carrier within the time allowed by law for valid service upon the defendant in the case, subsequent service on the carrier will not relate back to the date of filing the complaint against the individual defendant. White v. Wright, 566 F.2d 990 (5th Cir. 1978). Insurer is afforded benefit of statute of limitations. — Notice given in the form of service of a copy of the complaint and summons almost four years after the collision and over two and one-half years after the suit is served on the individual defendants, affords the uninsured motorist carrier the benefit of the bar of the statute of limitations. Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff ’d, 236 Ga. 582, 224 S.E.2d 416 (1976). The uninsured motorist carrier has a strong financial interest in the litigation. As such, it is entitled to notice of the pendency of the action on the same basis as though a defendant. Failure of timely notice affords the uninsured motorist carrier the benefit of the bar of the statute of limitations. White v. Wright, 566 F.2d 990 (5th Cir. 1978). Delay between filing of claim and service on carrier. — Delay between the insured’s filing of a tort claim and service on the uninsured motorist carrier did not require dismissal when, within the applicable period of limitations, the insured sought to serve the insurer and the failure to make service within the limitation period was not the result of the insured’s lack of diligence, but the result of the unavailability of the insurer’s registered agent; whether diligence was exercised was determined from the time the insured became aware that the process server failed to perfect service, not from the date of filing the complaint. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 462 S.E.2d 713 (1995). Subsection (e) applies where jurisdiction otherwise proper. — Provision in subsection (e) of O.C.G.A. § 33-7-11 for service by publication and service of a copy of the action upon the UM carrier applies only where jurisdiction is otherwise proper in the state; thus, a nonresident defendant who did not fall within any of the statutory categories giving the state jurisdiction over such person was not subject to suit in Georgia for damages arising from an automobile accident in another state. Watts v. Allstate Ins. Co., 214 Ga. App. 462, 448 S.E.2d 55 (1994). Provision for service by publication applies where tortfeasor cannot be found. — Where the alleged tortfeasor has disclosed a name and address and is not to be found at such address, or the name, because it is an alias or because he has absconded, cannot be linked to a real person, and diligent inquiry fails to turn him up anywhere, such defendant is in truth and in fact an unknown motorist, and the provisions of subsection (e) of this section should be applied so as to allow the action against the insurer to proceed. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012). Trial court erroneously dismissed the insured party’s uninsured motorist action against the insurer; the insured party, by attempting service twice, showed due diligence under O.C.G.A. § 33-7-11(e) in determining that the defendant, who allegedly struck the insured party, had either had departed from the state or could not, after due diligence, be found within the Procedure (Cont’d) state, the insured party made all three requests for service by publication before the statute of limitations under O.C.G.A. § 9-3-33 expired, and the latter two requests were pending for decision by the trial court for more than three months in violation of O.C.G.A. § 15-6-21(b). Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 637 S.E.2d 86 (2006). In a personal injury action arising out of a vehicle collision, the trial court erred in denying the plaintiff ’s motion for service by publication under O.C.G.A. § 33-7-11(e); the correct legal standard was the plaintiff ’s diligence in determining that an uninsured motorist was either out of state or avoiding service, which was shown. Smith v. Brooks, 354 Ga. App. 78, 840 S.E.2d 156 (2020). Provided in personam judgment is not sought against defendant. — The provision in subsection (e) of this section for service by publication can apply only in a situation in which an in personam judgment is not sought against the defendant. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973). Insurer not denied due process. — Since the injured plaintiff may recover from his own uninsured motorist insurance carrier where the tortfeasor is a hit and run driver who has disappeared from view without revealing his identity by service on the insurer only, it follows that service on the injured plaintiff ’s own insurer where the person causing damage is known but cannot after due diligence be found is not a denial of due process. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012). Publication is condition precedent for judgment against insurer. — Service by publication on a missing person does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978). Service by publication proper if due diligence to find tortfeasor shown. — Where due diligence is shown in the attempt to track down the owner or operator of the vehicle causing the injury, the request for service by publication should be granted. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978). Service not required for yet nonexistent action. — O.C.G.A. § 33-7-11 cannot logically be construed to require service on the insurer of a copy of an action that does not and cannot yet exist, and, in a case where the known uninsured motorist filed a petition in bankruptcy, service was delayable pending termination or modification of the automatic stay. State Farm Mut. Auto. Ins. Co. v. Harris, 207 Ga. App. 8, 427 S.E.2d 1 (1992). Tortfeasor shown to have concealed himself. — Where it is presumed that a party disappeared because suit had been filed against him, then the due diligence question does not even arise. Thus, a motion for service by publication must be granted, without regard to any questions of due diligence, if it is shown that the alleged tortfeasor has concealed himself to avoid the service of summons. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978). Preservation of claim against uninsured motorist carrier. — Where plaintiffs’ uninsured motorist carrier was released because their uninsured motorist coverage was equal to defendant’s bodily injury and property damage liability limits, plaintiffs preserved their rights to reinstate their claim against the carrier if and when defendant was found to be uninsured or underinsured because they served timely notice of their claim upon their carrier. Dewberry v. State Farm Ins. Co., 197 Ga. App. 248, 398 S.E.2d 266 (1990). Insurer timely filed in insured’s renewal action. — Uninsured motorist (UM) insurer was timely served in an insured’s renewal action, and summary judgment for the insurer was error because service on a UM carrier under O.C.G.A. § 33-7-11 was valid and timely within any time allowed for valid service on the tortfeasor in the case, even if such valid service was after the expiration of the statute of limitation; nothing in the 1998 amendment to § 33-7-11 reflected a legislative decision to overrule any of the judicial decisions holding such service valid. Although the insured had voluntarily dismissed the initial suit, the insured timely renewed the action pursuant to O.C.G.A. § 9-2-61, and served the insurer with the renewed complaint. Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437, 678 S.E.2d 877 (2009). Enforcement or dismissal agreements between parties. — In an action by an insured against his uninsured motorist (UM) carrier brought after the insured had agreed to dismiss the carrier from the action in which he obtained a judgment against the tortfeasor who had subsequently become an uninsured motorist because his insurer ceased operations, the trial court erred in refusing to enforce the dismissal agreement which gave the UM carrier the right to take defensive actions if its insured renewed an uninsured motorist claim. State Farm Fire & Cas. Ins. Co. v. Terry, 230 Ga. App. 12, 495 S.E.2d 66, aff ’d, 269 Ga. 777, 504 S.E.2d 194 (1998). A consent dismissal between an insured and his uninsured motorist (UM) carrier, which afforded the UM carrier the right to defend on the issues of liability and damages, even in the event a judgment had already been obtained in the underlying tort action, was not in conflict with this section. Terry v. State Farm Fire & Cas. Ins. Co., 269 Ga. 777, 504 S.E.2d 194 (1998), affirming State Farm Fire and Cas. Ins. Co. v. Terry, 230 Ga. App. 12, 495 S.E.2d 66 (1998). Insurer properly permitted offset. — Judgment offsetting the plaintiff ’s judgment against an insurer arising from a vehicle collision involving an uninsured motorist was affirmed because the plaintiff ’s policies prohibited the duplication of medical benefits and the plaintiff ’s verdict included a medical expenses award; thus, the trial court correctly determined that the insurer was entitled to the offset amount. Appling v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 369, 823 S.E.2d 61 (2019). Due diligence is a question of fact which addresses itself in the first instance to the discretion of the trial court. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978); Bailey v. Lawrence, 235 Ga. App. 73, 508 S.E.2d 450 (1998), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012). Evidence sufficient to show plaintiff used due diligence in perfecting service of process on unknown hit and run driver. Giffen v. Burrell, 176 Ga. App. 278, 335 S.E.2d 616 (1985). Evidence supported a finding that plaintiff failed to exercise due diligence in attempting to perfect service, where approximately eight months passed between the expiration of the statute of limitation and the date that defendants were properly served with a copy of the complaint. Capra v. Rogers, 200 Ga. App. 131, 407 S.E.2d 101 (1991). Passenger’s personal injury action against a driver renewed pursuant to O.C.G.A. § 9-2-61 was dismissed for failure to perfect service of process against the driver due to lack of diligence. Although the passenger attempted to serve the driver for several months, the passenger then allowed 72 days to elapse before making another attempt. The court rejected the passenger’s contention that O.C.G.A. § 33-7-11, providing for personal service after service of publication while allowing litigation against an uninsured motorist carrier to proceed, allowed for an additional 12 months after service by publication. Williams v. Patterson, 306 Ga. App. 624, 703 S.E.2d 74 (2010). Trial court did not abuse the court’s discretion in vacating the court’s order for service by publication because the order granting service by publication did not expressly find that motorcycle riders had exerted due diligence in the rider’s attempts to serve the motorist; the record was not clear that the riders acted with the greatest possible diligence in attempting to serve the motorist after the grant of the motion for service by publication. Milani v. Pablo, 316 Ga. App. 287, 728 S.E.2d 883 (2012). Procedure (Cont’d) Proof that the uninsured motorist had not deposited sufficient security was not required where the insured presented facts showing that a claim existed and the judge issued an order for service of process by publication; the issuance of such order was, in effect, a finding of due diligence. General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 472 S.E.2d 312 (1996). Burden on plaintiff to prove tortfeasor was uninsured. — The courts cannot presume that the tortfeasor was an uninsured motorist. The burden of that proof is on the plaintiffs. Hartford Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 228 S.E.2d 322 (1976). Interested party may corroborate occurrence. — Paragraph (b)(2) of O.C.G.A. § 33-7-11 requires only corroboration by an eyewitness, regardless whether the witness is an interested party, of the ‘‘description by the claimant of how the occurrence occurred.’’ Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 397 S.E.2d 466 (1990). Conflicting eyewitness testimony. — Even if the affidavit of an eyewitness contradicted the insured’s description of the incident, any inconsistency in the affidavit could not be construed against the insured as to whom no self-inconsistent testimony on the issue was shown. Painter v. Continental Ins. Co., 233 Ga. App. 436, 504 S.E.2d 285 (1998). Judgment denying an insurer’s summary judgment motion was improper, in an action for uninsured motorist benefits under O.C.G.A. § 33-7-11, due to the absence of eyewitness evidence corroborating an allegation by a decedent’s spouse that the driver of an unknown vehicle negligently caused the subject accident; although three of the four witnesses deposed established the presence of an unknown vehicle, each described the vehicle in a different location, and none corroborated the spouse’s description of how the occurrence occurred. Bituminous Ins. Co. v. Coker, 314 Ga. App. 30, 722 S.E.2d 879 (2012), cert. denied, No. S12C1012, 2012 Ga. LEXIS 527 (Ga. 2012). Eyewitness corroboration is required. — Only an eyewitness can corroborate the claimant’s description of the occurrence. An eyewitness, however, is required. Scott v. Allstate Ins. Co., 200 Ga. App. 296, 407 S.E.2d 492 (1991). Trial court properly granted summary judgment to an insurer in an action by an insured, seeking uninsured motorist coverage pursuant to O.C.G.A. § 33-7-11, as the vehicle in front of the insured had swerved to avoid a ladder in the highway, which set off the chain of reactions that resulted in the insured’s collision and injuries, but there was no witness testimony as to how the ladder ended up in the roadway; there was no testimony from the insured or from any other eyewitness that the ladder had been negligently secured to a vehicle and that it had fallen into the roadway from the unknown vehicle, such that coverage was properly denied in the circumstances. Hohman v. State Farm Fire & Cas. Auto. Ins. Co., 283 Ga. App. 430, 641 S.E.2d 650 (2007). Corroboration of each detail unnecessary. — It is not required that an eyewitness corroborate each and every detail of the insured’s description. All that is required is an eyewitness’ corroboration of the insured’s contention ‘‘that the accident was caused by an unknown vehicle.’’ Garrett v. Standard Guar. Ins. Co., 201 Ga. App. 251, 410 S.E.2d 806 (1991). Eyewitness corroboration may be provided by another occupant in the vehicle in which the claimant was injured under paragraph (b)(2) of O.C.G.A.