Except for actions arising against unauthorized insurers or under surplus line contracts which are provided for in Chapter 5 of this title, whenever any person shall have a claim or demand on any insurer, such person may bring an action in any of the following places:
(Ga. L. 1861, p. 58, § 1; Code 1868, § 3331; Code 1873, § 3408; Ga. L. 1878-79, p. 54, § 1; Code 1882, § 3408; Civil Code 1895, § 2145; Ga. L. 1902, p. 53, § 1; Civil Code 1910, § 2563; Code 1933, § 56-601; Code 1933, § 56-1201, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1969, p. 740, § 1.)
Cross references.- Venue generally, Ga. Const. 1983, Art. VI, Sec. II and § 9-10-30 et seq.
Law reviews.- For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981). For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For survey article on real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- The constitutional power of the General Assembly to enact the provision authorizing action to be brought in any county where company has an agent or place of doing business at the time the cause of action accrued or contract out of which the cause of action arose was made has been recognized and settled by the Supreme Court. Davis v. Central R.R. & Banking Co., 17 Ga. 323 (1855); Merritt v. Cotton States Life Ins. Co., 55 Ga. 103 (1875), later appeal. 59 Ga. 664 (1877).
The provision authorizing action to be brought in any county where company has an agent or place of doing business at the time the cause of action accrued or contract out of which the cause of action arose was made is not in conflict with the Constitution of this state or with the federal Constitution. Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 637, 79 S.E. 467 (1913), later appeal, 147 Ga. 47, 92 S.E. 930 (1917).
The provision authorizing action to be brought in any county where the insured property is located or where the person entitled to the insurance proceeds maintains a legal residence is not unconstitutional as violative of Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see Ga. Const. 1983, Art. VI, Sec. II, Para. VI). Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962).
The provision authorizing action to be brought in any county where the insured property is located or where the person entitled to the insurance proceeds maintains a legal residence does not deny due process of law. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962).
A classification of insurance companies, which excepts insurance companies which are bound and obligated as sureties upon the bonds of law enforcement officers is not unreasonable and does not violate Ga. Const. 1976, Art. I, Sec. II, Para. III (see Ga. Const. 1983, Art. I, Sec. I, Para. II). Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962).
The primary purpose of the proviso to the provision authorizing action to be brought in any county where the insured property is located or where the person entitled to the insurance proceeds maintains a legal residence is to protect sheriffs and law enforcement officers, whose duties are primarily performed in the county of their residence. The peculiar nature of their duties, requiring the arrest and imprisonment of those charged with violations of the laws, dealing with dangerous criminals, or with drunk or disorderly persons, lunatics and others of warped mind, subjecting them to unusual danger and requiring extraordinary action on their part, thereby increasing the risk of liability to unfounded actions against them, justifies the classification and renders it reasonable. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978), rev'd on other grounds, 243 Ga. 371, 254 S.E.2d 324 (1979).
Venue of action against a sheriff and his bondsman based on the provision authorizing action to be brought in any county where the insured property is located or where the person entitled to the insurance proceeds maintains a legal residence does not violate Ga. Const. 1976, Art. VI, Sec. XIV, Para. IV (see Ga. Const. 1983, Art. VI, Sec. II, Para. IV) since the General Assembly has declared the residence of the surety for the performance of the obligation to be the county in which the obligation is to be performed. White v. Fireman's Fund Ins. Co., 233 Ga. 919, 213 S.E.2d 879 (1975).
Construction of paragraph (2).
- Nothing in the language of paragraph (2) of O.C.G.A. § 33-4-1 indicates that it is intended to apply only to claims under insurance contracts. Patterman v. Travelers, Inc., 235 Ga. App. 784, 510 S.E.2d 307 (1998), aff'd, 272 Ga. 251, 527 S.E.2d 187 (2000).
To the extent that there is any limitation to the application of the statute, such limitation is not based on the words "claim or demand," but on the word "insurer." Patterman v. Travelers, Inc., 235 Ga. App. 784, 510 S.E.2d 307 (1998), aff'd, 272 Ga. 251, 527 S.E.2d 187 (2000).
Venue is proper under this Code section if a claim arises out of the defendant's "role as an insurer" or "business as an insurer." Patterman v. Travelers, Inc., 235 Ga. App. 784, 510 S.E.2d 307 (1998), aff'd, 272 Ga. 251, 527 S.E.2d 187 (2000).
Paragraph (2) of O.C.G.A. § 33-4-1 can be used to fix venue for a tort action in any county where a defendant insurance company has an agent, as long as the action involves the defendant's insurance business. Travelers, Inc. v. Patterman, 272 Ga. 251, 527 S.E.2d 187 (2000).
Due process does not require that an action against a defendant be brought in the county of residence. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962).
Contractual limitation of venue held unenforceable as against public policy.
- The provisions of a labor and materials payment bond, limiting venue solely to forums of the county or other political subdivision where the project is situated, are unenforceable as contrary to public policy. Fidelity & Deposit Co. v. Gainesville Iron Works, Inc., 125 Ga. App. 829, 189 S.E.2d 130 (1972).
Section does not conflict with former Civil Code 1895,
§ 2057. - Former Civil Code 1895, § 2057 (see O.C.G.A. § 33-4-3) merely requires insurance companies doing business here to file with the Insurance Commissioner a written power of attorney appointing some person who shall be authorized to acknowledge service for such company, or upon whom process may be served, and is entirely compatible with former Civil Code 1895, §§ 2145 and 2146 (see O.C.G.A. §§ 33-4-1 and33-4-5). Gaines v. Bankers' Alliance, 113 Ga. 1138, 39 S.E. 502 (1901).
All statutes as to venue must be strictly construed. Lumbermen's Underwriting Alliance v. First Nat'l Bank & Trust Co., 98 Ga. App. 289, 105 S.E.2d 585 (1958).
The terms "law enforcement officer" and "peace officer" are synonymous for the purpose of paragraph (4) of this section. Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978), rev'd on other grounds, 243 Ga. 371, 254 S.E.2d 324 (1979).
The state revenue commissioner is a "law enforcement officer" within the meaning of paragraph (4) of this section. Vandiver v. Williams, 106 Ga. App. 435, 127 S.E.2d 168, cert. dismissed, 218 Ga. 496, 128 S.E.2d 749 (1962).
Venue provisions do not limit general jurisdiction.
- Generally, constitutional and statutory provisions for venue confer a personal privilege upon defendants and do not limit the jurisdiction of courts having general jurisdiction. George Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 82 S.E.2d 875 (1954).
The General Assembly has the power to declare the residence of corporations. Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); White v. Fireman's Fund Ins. Co., 233 Ga. 919, 213 S.E.2d 879 (1975).
Cited in Vandiver v. Williams, 218 Ga. 60, 126 S.E.2d 210 (1962); Aetna Cas. & Sur. Co. v. Sampley, 108 Ga. App. 617, 134 S.E.2d 71 (1963); Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474, 268 S.E.2d 686 (1980); Cloud v. Brantley Constr. Co., 163 Ga. App. 235, 293 S.E.2d 510 (1982); Currahee Constr. Co. v. Rabun County Sch. Dist., 180 Ga. App. 471, 349 S.E.2d 487 (1986); Klein v. Allstate Ins. Co., 202 Ga. App. 188, 413 S.E.2d 777 (1991); Jackson v. Sluder, 256 Ga. App. 812, 569 S.E.2d 893 (2002).
Application
Section applies to action involving unknown uninsured motorist.
- As former Code 1933, § 56-407A (see O.C.G.A. § 33-7-11) did not contain any provisions in respect of venue of an action against an unknown uninsured motorist, this section relating to such actions against insurance companies, is applicable. Mercer v. Doe, 134 Ga. App. 818, 216 S.E.2d 339, cert. dismissed, 235 Ga. 207, 219 S.E.2d 144 (1975).
Insureds were authorized to bring their action against their insurer, seeking uninsured motorist coverage, in the county of their residence pursuant to O.C.G.A. § 33-4-1(4) and, accordingly, the trial court erred in transferring their case to another county pursuant to the insurer's motion alleging improper venue; the matter of whether venue was proper was reviewable by the appellate court pursuant to O.C.G.A. § 5-6-34(d) where the insureds' matter had been dismissed by the trial court and they sought review thereof. Morton v. Fuller, 264 Ga. App. 799, 592 S.E.2d 460 (2003).
Section does not apply to tort actions.
- The provisions of the introduction and paragraph (3) of this section, authorizing venue for actions on any "claim or demand" on insurance companies in any county where the company's "agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose," do not apply to tort actions. The object of the legislation is to fix the venue of actions against insurers on their contracts of insurance. Mavity v. First of Ga. Ins. Co., 115 Ga. App. 763, 156 S.E.2d 191 (1967).
Pleading seeking equitable relief.
- The provisions of this section do not authorize the filing of a pleading seeking purely equitable relief against an insurance company having its principal office in this state, as the sole defendant, in a county other than where such principal office is located. Porter v. State Mut. Life Ins. Co., 145 Ga. 543, 89 S.E. 609 (1916).
Columbia County Superior Court did not have personal jurisdiction over an insurance policy beneficiary who resided in another county sufficient to impose equitable relief against the beneficiary, pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. III. Joinder of the beneficiary was not proper even if jurisdiction was proper as to the insurer under O.C.G.A. § 33-4-1(4) because the complaint did not seek equitable relief common to both the non-resident beneficiary and the insurer. Skaliy v. Metts, 287 Ga. 777, 700 S.E.2d 357 (2010).
Claims arising out of business of insurance.
- When plaintiffs' allegations involved claims that the defendants or their agents committed fraud and unfair or deceptive acts by inducing policyholders to surrender their existing policies and purchase policies issued by defendants, the claims constituted claims arising out of the business of insurance, and the trial court erred in holding that O.C.G.A. § 33-4-1 was inapplicable. Patterman v. Travelers, Inc., 235 Ga. App. 784, 510 S.E.2d 307 (1998), aff'd, 272 Ga. 251, 527 S.E.2d 187 (2000).
Former O.C.G.A. § 46-7-17 (see O.C.G.A. § 40-1-117) did not have the effect of making a motor carrier and its insured joint tortfeasors or joint obligors for purposes of venue so that proper venue as to a suit against one is the proper venue in a suit against the other. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983).
Having agent or place of business in county determines venue.
- Since the passage of Ga. L. 1902, p. 53, the venue of an action against an insurance company has been determined by the fact of the company having an "agent" or place of doing business in the county. Great E. Cas. Co. v. Haynie, 16 Ga. App. 643, 85 S.E. 938 (1915).
Insurer may be sued where it had agent when contract was executed.
- Under this section the city court of La Grange had jurisdiction in an action against a nonresident insurance company of the subject-matter and of the defendant, inasmuch as the defendant had an agency (now agent) at that city at the time of the execution of the contract sued on. United States Cas. Co. v. Newman, 137 Ga. 447, 73 S.E. 667 (1912) (service not properly effected).
A petition (now complaint) against an insurance company, where it is alleged that at the time of the issuance of the policy sued on the defendant was represented by named agents in the county in which the suit was filed, alleges jurisdiction in that county, as provided in this section. Process issued thereon is valid. Hagler v. Pacific Fire Ins. Co., 36 Ga. App. 530, 137 S.E. 293, cert. denied, 36 Ga. App. 825, S.E. (1927).
When an action is brought against an insurance company and plaintiff's pleading shows that at the time of the issuance of the policy on which suit was brought, the defendant was represented by an agent in the county in which the suit was filed, jurisdiction lies in such county. Lumbermen's Underwriting Alliance v. First Nat'l Bank & Trust Co., 98 Ga. App. 289, 105 S.E.2d 585 (1958).
Even though it has no agent there at time of suit.
- Under paragraph (3) of this section a nonresident insurance company may be sued in the county where the company had an agent and place of doing business when the contract of insurance was made and the cause of action arose, although the company has abandoned its agency in that county and has no agent there at the time of the suit. Peters v. Queen Ins. Co., 137 Ga. 440, 73 S.E. 664, answer conformed to, 10 Ga. App. 479, 73 S.E. 856 (1912); Guarantee Trust Life Ins. Co. v. Ricker, 93 Ga. App. 554, 92 S.E.2d 323 (1956).
Paragraph (3), to the effect that an insurance company can be sued, inter alia, in the county where its agent or place of business was located at the time the cause of action arose or the contract was made, is applicable to a reciprocal exchange, and venue is properly laid in county in which defendant had an agent at the time of the loss, even though when suit is filed, this agent has left and service is had upon individual designated by defendant for acceptance of service. Lumbermen's Underwriting Alliance v. First Nat'l Bank & Trust Co., 98 Ga. App. 289, 105 S.E.2d 585 (1958); Lumbermen's Underwriting Alliance v. Jessup, 98 Ga. App. 305, 105 S.E.2d 596 (1958).
Section does not apply if there is no agent or place of business in state.
- When there was no agency and no place of doing business in this state or any principal office located in this state, former Civil Code 1910, § 2563 (see O.C.G.A. § 33-4-1) did not apply to an action against an insurer doing business under former Civil Code 1910, § 2446 (see O.C.G.A. § 33-4-3). Export Ins. Co. v. Womack, 165 Ga. 815, 142 S.E. 851, answer conformed to, 38 Ga. App. 75, 143 S.E. 151 (1928).
Federal preemption of state law claims.
- Because policies purchased by a clinic association for the benefit of doctors constituted a plan governed by the Employee Retirement Income Security Act, and the plaintiff's state law claims "related to" the plan, the state law claims (e.g., to recover benefits, bad-faith refusal to pay, and attorney fees under O.C.G.A. § 33-4-1) were preempted by 29 U.S.C. § 1144(a). Stefansson v. Equitable Life Assur. Soc'y, F. Supp. 2d (M.D. Ga. Sept. 19, 2005).
Licensed agent with headquarters in county suffices.
- An authorized agent of an insurance company who at the time the suit against the company was instituted, and at the time the cause of action accrued, and at the time of the making of the contract out of which the cause of action arose, was acting, under a state agent for the company and had his headquarters and place of business as such agent of the insurance company in that county within the meaning of paragraph (3) of this section. Great E. Cas. Co. v. Haynie, 16 Ga. App. 643, 85 S.E. 938 (1915).
Legal residence of agent is immaterial.
- It is immaterial that the agent had in another county his legal residence for voting, etc., as indicated by the domicile of his family. Great E. Cas. Co. v. Haynie, 16 Ga. App. 643, 85 S.E. 938 (1915).
Subordinate lodge may be agent of fraternal benefit society.
- Under this section a subordinate lodge was the agent of a fraternal benefit society in the county in which the suit was pending, and the court had jurisdiction. Hurley v. District Grand Lodge No. 1, 24 Ga. App. 197, 100 S.E. 233 (1919).
Depending on constitution and bylaws of superior lodge.
- Whether a subordinate lodge is an agent depends on the constitution and bylaws of the superior lodge. Jones v. District Grand Lodge No. 18, 12 Ga. App. 273, 76 S.E. 279 (1913).
If venue against surety is proper, principals may be joined.
- The principals in an administrator's bond on which a nonresident fidelity insurance company is surety may be joined with the surety in a suit brought in any county wherein jurisdiction over the surety may be obtained. Morris v. George, 3 Ga. App. 413, 59 S.E. 1116 (1908).
Surety living in another county.
- A foreign fidelity insurance company may be sued in any county in this state in which it has an agent or place of doing business; and the principal in a guardian's bond for which the company is surety, although living in another county, may be sued jointly with the surety in any county in which jurisdiction over the surety may be obtained. Gross v. Butler, 48 Ga. App. 750, 173 S.E. 866 (1934).
Insurer cannot claim improper venue merely because insured cannot be sued in venue selected.
- Just as a motor carrier cannot be required to defend a tort suit in a county solely because venue in that county would otherwise be proper as to its insurer, the insurer cannot avoid defending an ex contractu action otherwise properly brought in that county under this section solely because its insured cannot be sued there on the underlying tort. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983).
Waiver of objection to venue.
- Appearance and pleading to the merits without objecting to the venue of the suit or reserving the right to do so as is a waiver of the right to be sued in the place provided by law. George Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 82 S.E.2d 875 (1954).
If a defendant waives his right to be sued in the venue provided by law, he cannot afterwards attack the judgment rendered. George Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 82 S.E.2d 875 (1954).
A defendant cannot later withdraw his responsive pleading and move to dismiss the petition on the ground that it does not show the proper venue. George Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 82 S.E.2d 875 (1954). See § 9-11-12(h).
Paragraph (2) makes foreign insurer's liability asset of deceased insured's estate in county of place of business.
- Since under paragraph (2) of this section a foreign insurance company doing business within the state may be sued in any county of the state where it maintains an agent or place of business, the potential liability of an insurance company to the decedent's estate was an asset of that estate located in Bartow County, in which the company had an agent and place of business, for the purpose of founding an administration on that estate in that county under the provision of former Code 1933, § 113-1211. Tweed v. Houghton, 103 Ga. App. 57, 118 S.E.2d 496 (1961) (decided under former Code 1933, § 56-1201).
Where an owner's suit did not arise out of a title insurance company's business as an insurer, pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. III, the trial court erred in finding venue under O.C.G.A. § 33-4-1(2); in addition, the grant of an interlocutory injunction was error because there was no showing that the title company had any opportunity to challenge the applicability of an amendment to add a quiet title action under O.C.G.A. § 23-3-62 to the complaint. First Am. Title Ins. Co. v. Broadstreet, 260 Ga. App. 705, 580 S.E.2d 676 (2003).