O.C.G.A. § 9-3-94 provides that time during which a defendant is absent from Georgia is not counted against the limitations period. The rationale is that a plaintiff should not be penalized for an inability to serve a defendant who is outside the state. The tolling applies for the duration of the absence and stops running once the defendant returns and becomes subject to service of process. This provision has become less significant in practice as long-arm jurisdiction has expanded, allowing plaintiffs to serve out-of-state defendants without waiting for their return to Georgia.
18.1. How has expanded long-arm jurisdiction reduced the practical significance of the absence tolling provision in Georgia?
Georgia’s long-arm statute, O.C.G.A. § 9-10-91, allows service on defendants outside the state who committed tortious acts in Georgia or caused injury in Georgia. Because most personal injury defendants can be served through the long-arm statute regardless of their physical location, the need to toll limitations for absence has diminished significantly. The provision remains relevant primarily for defendants who cannot be reached through long-arm jurisdiction.
18.2. Does the absence tolling provision apply to a corporate defendant whose registered agent remains in Georgia?
Generally no. A corporation that maintains a registered agent in Georgia is subject to service through that agent regardless of where the corporation’s operations are located. The continued presence of a registered agent means the corporation is not truly absent from the state for service purposes. Absence tolling typically applies to individual defendants rather than corporations with ongoing registered presence.
18.3. How does Georgia determine whether a defendant was truly ‘absent’ versus simply residing in another state?
Georgia courts look at whether the defendant was physically present in the state and subject to personal service during the relevant period. A defendant who permanently resides in another state but can be served through the Georgia long-arm statute may not qualify for absence tolling because the plaintiff had an alternative means of service. The analysis focuses on whether the plaintiff was actually prevented from effecting service.
18.4. Can a plaintiff invoke absence tolling if the defendant was reachable through the Georgia long-arm statute during the period of absence?
Courts have questioned whether absence tolling applies when the defendant could have been served through the long-arm statute. The argument is that the rationale for absence tolling disappears when the plaintiff has an available means of service. The trend in Georgia is toward finding that long-arm availability eliminates the need for absence tolling.
18.5. How does absence tolling interact with service of process through the Secretary of State for non-resident motorists?
Georgia’s non-resident motorist statute allows service through the Secretary of State for out-of-state drivers involved in accidents on Georgia roads. When this service mechanism is available, the non-resident motorist is subject to suit in Georgia regardless of physical absence. This typically eliminates the basis for absence tolling in auto accident cases involving non-resident drivers.
18.6. What records or evidence does a plaintiff typically use to prove a defendant’s absence from Georgia?
Plaintiffs may use address records, utility accounts, tax filings, employment records, vehicle registrations, and other documentation showing the defendant’s residence or presence outside Georgia during the relevant period. Service attempts and returns showing the defendant could not be located in Georgia also support the absence claim.
18.7. How do Georgia courts handle partial absence where the defendant spent time both in and outside the state?
When a defendant was intermittently present in Georgia, only the periods of actual absence may be excluded from the limitations calculation. The plaintiff must establish the specific periods of absence and show that service could not have been effected during the defendant’s time in the state. Partial absence creates a more complex calculations requiring precise evidence of the defendant’s whereabouts.
18.8. Does the absence tolling provision apply to claims against foreign corporations with no registered agent in Georgia?
A foreign corporation with no registered agent in Georgia may be subject to absence tolling if it cannot be served through the long-arm statute. However, most foreign corporations that commit tortious acts in Georgia or cause injury in Georgia can be reached through long-arm jurisdiction. The absence provision is most relevant for corporations with truly no connection to Georgia beyond the incident giving rise to the claim.
Georgia’s absence tolling provision is a historical remedy whose practical importance has declined as long-arm jurisdiction has expanded. In modern practice, most defendants can be served outside Georgia through statutory mechanisms that eliminate the need for absence tolling. However, the provision remains in the code and can still apply in limited situations where no alternative service mechanism reaches the defendant.
Disclaimer: This content is provided for informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this material. Georgia law is subject to change through new legislation and court decisions. Always consult a qualified Georgia attorney for advice specific to your situation.