(Code 1981, §40-1-112, enacted by Ga. L. 2012, p. 580, § 1/HB 865.)
Law reviews.- For annual survey on commercial transportation, see 69 Mercer L. Rev. 41 (2017). For annual survey on insurance law, see 69 Mercer L. Rev. 117 (2017).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1929, p. 293, former Code 1933, § 68-612, and former O.C.G.A. §§ 46-7-12 and46-7-58 are included in the annotations for this Code section.
Purpose of Code section.
- Former Code 1933, § 68-612 did not have as the statute's purpose protecting the insured from loss, but in the protection of the public against carrier-inflicted injuries. Farley v. Continental Ins. Co., 150 Ga. App. 389, 258 S.E.2d 8 (1979) (decided under former Code 1933, § 68-612).
Constitutionality.
- Last sentence in subsection (e) (now subsection (c)) of former Code 1933, § 68-612 considered with the statute's context, was not a special law, but a general law applicable alike to all motor carriers and indemnity- insurance companies filing bonds and insurance policies under provisions of the act in all parts of the state, and being of such character was not violative of Ga. Const. 1976, Art. I, Sec. II, Para. VII, (Ga. Const. 1983, Art. I, Sec. II, Para. X) inhibiting passage of special laws for which provision has been made by an existing general law. Lloyds Am. v. Brown, 187 Ga. 240, 200 S.E. 292 (1938) (decided under former Code 1933, § 68-612).
Former Code 1933, § 68-612 was not void as violative of Ga. Const. 1976, Art. I, Sec. II, Para. III (Ga. Const. 1983, Art. I, Sec. II, Para. IV) or U.S. Const., art. XIV, sec. 1. Lloyds Am. v. Brown, 187 Ga. 240, 200 S.E. 292 (1938) (decided under former Code 1933, § 68-612).
Joinder of the motor carrier and the carrier's insurer or surety in the same action does not violate the equal protection or due process clauses of the Georgia Constitution. Grissom v. Gleason, 262 Ga. 374, 418 S.E.2d 27 (1992) (decided under former O.C.G.A. § 46-7-12).
Joinder provision did not violate the equal protection clause of the Constitution of the State of Georgia of 1983. Edwards v. Kessler, 262 Ga. 346, 419 S.E.2d 21 (1992) (decided under former O.C.G.A. § 46-7-58).
Any issue as to the constitutionality of former O.C.G.A. § 46-7-12 was in the exclusive jurisdiction of the Supreme Court on appeal and, in any case, could not be properly raised on appeal when the trial court did not expressly consider and rule upon the issue. Wright v. Transus, Inc., 209 Ga. App. 771, 434 S.E.2d 786 (1993) (decided under former O.C.G.A. § 46-7-12).
Section must be strictly construed.
- Former O.C.G.A. § 46-7-12 was in derogation of the common law and must be strictly construed. National Indem. Co. v. Tatum, 193 Ga. App. 698, 388 S.E.2d 896 (1989) (decided under former O.C.G.A. § 46-7-12).
Duty to indemnify motoring public for carrier's negligence.
- When an insurer purports to issue coverage to an insured which the insurer knows is a motor carrier, the insurer assumes responsibility to indemnify the motoring public for injuries sustained by virtue of the carrier's negligence in at least the minimum amount statutorily required under the former Georgia Motor Carrier Act, former O.C.G.A. § 46-7-1 et seq., and up to the policy limits, notwithstanding any provisions in the insurance policy to the contrary; any negative consequences arising from noncompliance with the Act by the insured motor carrier or the insurer should be suffered by one or both of the noncompliant parties rather than by the innocent motoring public. Sapp v. Canal Ins. Co., 288 Ga. 681, 706 S.E.2d 644 (2011) (decided under former O.C.G.A. § 46-7-12).
Insurer's liability for unsatisfied judgment against insured.
- An insurer is absolutely liable for any unsatisfied judgment which may be obtained against its insured whether or not its insured breached the conditions of the policy. Seawheels, Inc. v. Bankers & Shippers Ins. Co., 175 Ga. App. 528, 333 S.E.2d 650 (1985) (decided under former O.C.G.A. § 46-7-12).
Carrier's liability for operation by lessee of truck with trailer removed.
- Public policy independently intended motor carrier to bear full responsibility to public for the operation by its lessee of a "bobtailed" truck (tractor with trailer removed) which the lessee was driving on the lessee's way home. Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 371 S.E.2d 252 (1988) (decided under former O.C.G.A. § 46-7-12).
Trial court properly denied the insurer's summary judgment motions claiming that the direct actions against the insurer were not authorized because, although it was apparent that the plain language of O.C.G.A. § 40-1-126 evinced the legislative intent that the direct action provision of O.C.G.A. § 40-1-112(c) did not apply to purely interstate commerce or to a carrier engaged exclusively in interstate commerce, and the tractor-trailer driver and the trucking company were engaged in an interstate trip at the time of the accident, the joinder of the insurer as a defendant was authorized by the direct action provision of O.C.G.A. § 40-2-140(d)(4) as that statute indicated that injured parties were able to join the insurers of interstate motor carriers. Daily Underwriters of America v. Williams, 354 Ga. App. 551, 841 S.E.2d 135 (2020).
Preemption by federal law.
- Former O.C.G.A. § 46-7-12 was not preempted by 49 U.S.C. § 10927 which provided for payment of a claim by an insurer after a final judgment had been recovered against the motor carrier the insurer insures. Watkins v. H.O. Croley Granary, 555 F. Supp. 458 (N.D. Ga. 1982) (decided under former O.C.G.A. § 46-7-12).
Liability Risk Retention Act, 15 U.S.C. § 3901 et seq., preempted Georgia's motor carrier and insurance carrier direct action statutes, O.C.G.A. §§ 40-1-112(c) and40-2-140(d)(4), in regard to a risk retention group that was not chartered in Georgia, thus precluding injured passengers from bringing a direct action against the risk retention group. The court rejected the passengers' contention that the statutes were financial responsibility laws and not preempted under 15 U.S.C. § 3905. Reis v. OOIDA Risk Retention Group, Inc., 303 Ga. 659, 814 S.E.2d 338 (2018).
No direct action against insurer of exempt vehicle.
- When an insured commercial motor vehicle was acting as a timber hauler at the time of an accident, it was not within the definition of a common carrier or contract carrier, and no direct action could be maintained against an insurer because the insurer was outside the ambit of former O.C.G.A. § 46-7-12. Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 474 S.E.2d 745 (1996) (decided under former O.C.G.A. § 46-7-12).
Since former O.C.G.A. § 46-1-1 (9)(C)(xiv), as it existed prior to the 2002 amendment, exempted dump trucks from the definition of motor contract or common carrier, the insurer for a dump truck that was involved in a motor vehicle collision could not be subjected to a direct action. The insurer was properly dismissed from a counterclaim against the driver in the driver's personal injury action against the other driver. Morgan Driveaway, Inc. v. Canal Ins. Co., 266 Ga. App. 765, 598 S.E.2d 38 (2004) (decided under former O.C.G.A. § 46-7-12).
Medical van exempt.
- Survivors of a deceased patient could not bring a direct action against a transporting van's insurer under O.C.G.A. § 40-1-112(c) of the Georgia Motor Carriers Act because the van was exempt from the motor carrier definition under O.C.G.A. § 40-1- 100(12)(B)(vii): the van was used exclusively to transport individuals to receive medical care and was not capable of transporting more than 10 people, although the van had originally been designed to carry 12 people. Mornay v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 331 Ga. App. 112, 769 S.E.2d 807 (2015).
"Actionable injury" defined.
- "Actionable injury" means an injury to a person who could sue the carrier and obtain a judgment for the injuries sustained. Such definition by its nature broadly includes all third-parties injured by the negligence of the motor carrier, or by the negligence of its servants, and necessarily excludes employees of the carrier who could not sue the employer. Likewise, if the motor carrier could not be liable for a failure of agency of a particular employee in the accident in question, the insurance company may be protected thereby. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Under the laws of this state, a master is not liable for damages for the negligence of a fellow servant generally, and if a case is such that a master is so liable at common law generally, the master would not be subject to action and judgment if the carrier and employee came under the provisions of the workers' compensation law (see O.C.G.A. Ch. 9, T. 34). Combs v. Carolina Cas. Ins. Co., 90 Ga. App. 90, 82 S.E.2d 32 (1954) (decided under former Code 1933, § 68-612).
No "actionable injury" against motor carrier for which insurer could be held liable.
- See Mathews v. Rail Express, Inc., 836 F. Supp. 873 (N.D. Ga. 1993) (decided under former O.C.G.A. § 46-7-12).
Injury refers to person and loss refers to baggage or property.
- In former Code 1933, § 68-612, the word "injury" seems to refer to the person, and the word "loss" to baggage or property. Laster v. Maryland Cas. Co., 46 Ga. App. 620, 168 S.E. 128 (1933) (decided under former Code 1933, § 68-612); LaHatte v. Walton, 53 Ga. App. 6, 184 S.E. 742 (1936);(decided under former Code 1933, § 68-612).
Accident on highways not prerequisite to cause of action.
- Mere reference to use of Georgia highways in some sections of the Code does not mean that a person has a cause of action under former O.C.G.A. § 46-7-12 only if an injury occurs on Georgia highways. Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (1993) (decided under former O.C.G.A. § 46-7-12).
Until proper notice given to commission, insurance policy effective only for benefit of public.
- Commission rules can only provide that until proper notice is given to the commission, an insurance policy is effective for the benefit of the public, not the insured in cases when the policy between the insured and the insurer has lapsed. Smith v. National Union Fire Ins. Co., 127 Ga. App. 752, 195 S.E.2d 205 (1972) (decided under former Code 1933, § 68-612).
Legislature's purpose in giving commission right to fix bond amount.
- Legislature's purpose to obviate necessity for double litigation by giving commission right to fix the amount of the bond and to prescribe provision thereof. Laster v. Maryland Cas. Co., 46 Ga. App. 620, 168 S.E. 128 (1933) (decided under former Code 1933, § 68-612).
Extent of coverage under policy issued pursuant to former provisions.
- Provision in a policy issued pursuant to the provisions of former Code 1933, § 68-612, that the policy covered the operation of automobiles and motor vehicles which were used only for the transportation of passengers for compensation purposes and operated on schedule over routes authorized by the commission covered motor vehicles not only when actually engaged in the transportation of passengers over scheduled routes, but covered such motor vehicles when used for any purpose or engaged in any act essential to the operation of the motor vehicle as a motor common carrier in the transportation of passengers for compensation over scheduled routes. American Fid. & Cas. Co. v. McWilliams, 55 Ga. App. 658, 191 S.E. 191 (1937) (decided under former Code 1933, § 68-612).
Evidence of policy limit.
- Trial court did not abuse the court's discretion in denying appellees' motion for mistrial when counsel incorrectly asked witness about policy limit but before witness could answer opposing counsel objected; no evidence of the insurance policy limit was introduced by the unanswered question, and the trial court gave prompt curative instructions. Ashley v. Goss Bros. Trucking, 269 Ga. 449, 499 S.E.2d 638 (1998) (decided under former O.C.G.A. § 46-7-12).
Failure to list vehicle limited liability.
- When the truck involved in a collision was not listed as a covered auto under an insurance policy issued by the insurer that filed a certificate of insurance for a carrier, the insurer's liability was limited to the minimum compulsory liability limits as established pursuant to former O.C.G.A. § 46-7-12, not the maximum limits of the policy. Kinard v. National Indem. Co., 225 Ga. App. 176, 483 S.E.2d 664 (1997), aff'd sub nom., Ross v. Stephens, 269 Ga. 266, 496 S.E.2d 705 (1998) (decided under former O.C.G.A. § 46-7-12).
Former Code 1933, § 68-612 was designed to protect strangers to motor carriers, not those who, although receiving paychecks from a lessor are involved in the operations of the carrier as if they were employees. White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir.), cert. denied, 444 U.S. 965, 100 S. Ct. 452, 62 L. Ed. 2d 377 (1979) (decided under former Code 1933, § 68-612).
Personnel deemed statutory employees to ensure carrier's responsibility for public safety.
- Because the carrier now has both a legal right and duty to control vehicles operated for the carrier's benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier's responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles. White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir.), cert. denied, 444 U.S. 965, 100 S. Ct. 452, 62 L. Ed. 2d 377 (1979) (decided under former Code 1933, § 68-612).
Contractual release and indemnity provision.
- Application of the release and indemnity provision in an independent contractor agreement between a first driver and a common carrier did not violate the public policy of Georgia as it was not the purpose of former O.C.G.A. § 46-7-12, which was similar to 49 C.F.R. § 387.15, to make an insurer for a common carrier liable when a judgment could not be recovered against the carrier itself; based on the first driver's contractual relationship with the common carrier, the first driver was not a member of the general public meant to be protected by former § 46-7-12. Coleman v. B-H Transfer Co., 284 Ga. 624, 669 S.E.2d 141 (2008) (decided under former O.C.G.A. § 46-7-12).
Insurer subject to direct action by third parties injured by virtue of motor carrier's negligence.
- Court of appeals erred in affirming an order granting an insurer's motion for summary judgment in the insurer's action seeking a declaration that a car accident involving a driver and a dump truck driver was not covered under the insurance policy the insurer issued to a motor carrier, which was the driver's employer, because the insurer was subject to a direct action under the former Georgia Motor Carrier Act, former O.C.G.A. § 46-7-12.1(c), by third parties injured by virtue of the motor carrier's negligence since the motor carrier sought insurance coverage from the insurer, the insurer was on notice of the insurer's status as a motor carrier and of the insurer's need to obtain motor carrier coverage, and the motor carrier was not informed of nor otherwise had reason to believe that the policy fell short of the coverage the insurer was required by law to maintain; because any provisions in the insurance policy issued to the motor carrier that would serve to reduce or negate the insurer's obligations to the motoring public under the Act were void and of no effect, the radius-of-use limitation, which purported to exclude from coverage any incident occurring more than 50 miles from a city, was invalid, and the insurer was subject to liability up to the policy limit. Sapp v. Canal Ins. Co., 288 Ga. 681, 706 S.E.2d 644 (2011) (decided under former Code 1933, § 68-612).
Nature of liability of carrier and insurer.
- Liability against the insurance carrier is ex contractu and the liability against (the insured) is ex delicto. The insurer and the carrier are neither joint tort-feasors nor joint contractors. Farley v. Continental Ins. Co., 150 Ga. App. 389, 258 S.E.2d 8 (1979) (decided under former Code 1933, § 68-612).
Permissibility of joinder of tort and contract actions.
- Former Code 1933, § 68-612 allowed the joinder of a tort action against a carrier with a contract action against the carrier's insurer-in-lieu-of-bond. The only condition precedent to the joinder of the latter was that there be a viable action against the former. Farley v. Continental Ins. Co., 150 Ga. App. 389, 258 S.E.2d 8 (1979) (decided under former Code 1933, § 68-612).
Independent action on policy itself.
- An action on the policy itself against the insurer of a motor carrier was cognizable as an independent suit without joinder of the motor carrier. Such a suit was an independent ex contractu action on the policy itself and was nonancillary to the ex delicto action against the motor carrier. Employers Ins. v. Dawson, 194 Ga. App. 247, 390 S.E.2d 261, cert. denied, 194 Ga. App. 911, 390 S.E.2d 261 (1990) (decided under former O.C.G.A. § 46-7-12).
Direct action not authorized when accident occurred outside state.
- Former O.C.G.A. § 46-7-12 did not authorize direct causes of action when the accident giving rise to the suit occurs outside the state of Georgia. National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642, 399 S.E.2d 260 (1990) (decided under former O.C.G.A. § 46-7-12).
Even if underlying acts of negligence occur in Georgia, the purposes of former O.C.G.A. § 46-7-12 and the state's interest in ensuring and expediting compensation of injured parties were not implicated when the accident does not occur in the state. Liberty Mut. Ins. Co. v. Dehart, 206 Ga. App. 858, 426 S.E.2d 592 (1992) (decided under former O.C.G.A. § 46-7-12).
Permissibility of direct action against insurer of interstate carrier.
- When a motor common carrier held certificates of public convenience and necessity from both the Interstate Commerce Commission for operation as an interstate carrier and the Georgia Public Service Commission as an intrastate carrier, an action for damages arising from an accident occurring in the carrier's intrastate operation and proceeding upon the insurance policy filed with the Georgia Public Service Commission could be brought against the motor carrier's insurer in the first instance under former Code 1933, § 68-612. The requirement of 49 U.S.C. § 315 that final judgment first be obtained against the carrier was not applicable. Tucker v. Casualty Reciprocal Exch., 40 F. Supp. 383 (N.D. Ga. 1941) (decided under former O.C.G.A. § 46-7-12).
Amendment of complaint permissible to add liability insurer as defendant.- With leave of the court, a complaint can be amended to bring in an additional defendant, a liability insurer for a defendant motor carrier when counsel did not learn that the defendant was a common carrier and required to furnish adequate security until after the discovery was commenced. Crews v. Blake, 52 F.R.D. 106 (S.D. Ga. 1971) (decided under former Code 1933, § 68-612).
Effect on insurer of improper service on carrier.
- Because the action against the insurance carrier was based on a contract with the public as the third party beneficiary of the contract and because subsection (e) of former O.C.G.A. § 46-7-12 authorized the joinder of the motor carrier and the insurer in the same action, it was error to dismiss the action against the insurer on the basis that the motor carrier was not properly served. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987) (decided under former O.C.G.A. § 46-7-12).
Burden of proving vehicle exempt from definition of "motor contract carrier."
- On the question of whether a carrier was a "motor contract carrier" under former O.C.G.A. § 46-1-1(8) such that the carrier's insurer was subject to the joinder provisions of subsection (e) of former O.C.G.A. § 46-7-12, the burden of proof was on the truck owner to show that the owner's truck came within the exemption from the definition of "motor contract carrier" in former § 46-1-1(8)(c) and there was no burden on plaintiffs to prove that the truck was not within the exemption. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983) (decided under former O.C.G.A. § 46-7-12).
Exemption from motor contract carrier status must be established prior to liability.
- If at any time up to and including the time of the collision with plaintiff, any of the requirements for the exemption from motor contract carrier status under former § 46-1-1(8)(c) had not been met, that motor vehicle would not have been engaged "exclusively" in the transportation of exempted products and would not qualify the owner for exemption from application of former O.C.G.A. § 46-7-12. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983) (decided under former O.C.G.A. § 46-7-12).
Essential elements for allowing direct action against insurer.
- Proof of filing of the insurance policy and approval by the public service commission was essential to allowing a direct action against the insurer of a motor contract carrier. Progressive Cas. Ins. Co. v. Scott, 188 Ga. App. 75, 371 S.E.2d 881 (1988) (decided under former O.C.G.A. § 46-7-12); Kennedy v. Georgia-Carolina Refuse & Waste Co., 739 F. Supp. 604 (S.D. Ga. 1990);(decided under former O.C.G.A. § 46-7-12).
Step van used exclusively by the van's owner to transport its own products, and which was never held out for hire to the public and was not used or hired by the public for the transportation of either goods or people was neither a common nor contract carrier as those terms were defined in O.C.G.A. Title 46 and used in the direct action provisions contained in former O.C.G.A. § 46-7-12. National Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 414 S.E.2d 731 (1992) (decided under former O.C.G.A. § 46-7-12).
Cited in A.G. Boone Co. v. Owens, 54 Ga. App. 379, 187 S.E. 899 (1936); Hodges v. Ocean Accident & Guar. Corp., 66 Ga. App. 431, 18 S.E.2d 28 (1941); Gallahar v. George A. Rheman Co., 50 F. Supp. 655 (S.D. Ga. 1943); American Fid. & Cas. Co. v. Farmer, 77 Ga. App. 166, 48 S.E.2d 122 (1948); Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949); Garden City Cab Co. v. Ransom, 86 Ga. App. 247, 71 S.E.2d 443 (1952); Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 113 S.E.2d 774 (1960); Reeves v. South Am. Managers, Inc., 110 Ga. App. 49, 137 S.E.2d 700 (1964); Wolverine Ins. Co. v. Strickland, 116 Ga. App. 62, 156 S.E.2d 497 (1967); Barber v. Canal Ins. Co., 119 Ga. App. 738, 168 S.E.2d 868 (1969); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); St. Paul Fire & Marine Ins. Co. v. Mose Gordon Constr. Co., 121 Ga. App. 33, 172 S.E.2d 459 (1970); Isom v. Schettino, 129 Ga. App. 73, 199 S.E.2d 89 (1973); Seaboard Coast Line R.R. v. Freight Delivery Serv., Inc., 133 Ga. App. 92, 210 S.E.2d 42 (1974); Dove v. National Freight, Inc., 138 Ga. App. 144, 225 S.E.2d 477 (1976); Mercer v. Braswell, 140 Ga. App. 624, 231 S.E.2d 431 (1976); Homick v. American Cas. Co., 209 Ga. App. 156, 433 S.E.2d 318 (1993); McAdams v. United States Fire Ins. Co., 234 Ga. App. 324, 506 S.E.2d 679 (1998); Raintree Trucking Co. v. First Am. Ins. Co., 245 Ga. App. 305, 534 S.E.2d 459 (2000); Jackson v. Sluder, 256 Ga. App. 812, 569 S.E.2d 893 (2002); Cowart v. Widener, 296 Ga. App. 712, 675 S.E.2d 591 (2009).
Pleadings and Practice
1. In General
Section established independent cause of action against insurer.
- In addition to a suit in tort against a negligent motor carrier, former O.C.G.A. § 46-7-12 established an independent cause of action against the carrier's insurer on behalf of a member of the public injured by the carrier's negligence. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983) (decided under former O.C.G.A. § 46-7-12).
Cause of action against insurer is in contract not tort. Gates v. L.G. DeWitt, Inc., 528 F.2d 405 (5th Cir.), modified, 532 F.2d 1052 (5th Cir. 1976) (decided under former Code 1933, § 68-612).
Distinction between liability of common carrier and obligation of insurer to injured.
- Common carrier that negligently injures a person, and the insurance company that issues the carrier an indemnity policy under the provisions of former Code 1933, § 68-612, were neither joint tortfeasors nor joint contractors, so as to bring them within the provisions of Ga. Const. 1976, Art. VI, Sec. XIV, Para. IV (see now Ga. Const. 1983, Art. VI, Sec. II, Para. IV) permitting suit to be instituted against joint obligors or joint tortfeasors in the county of either, since the liability of the carrier to the injured person arose from a tort in the commission of which the insurance company was not concerned, while the insurance company's obligation to pay the damages caused by the carrier's negligence was a contractual duty not assumed by the carrier. Bolin v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 92 Ga. App. 726, 89 S.E.2d 831 (1955) (decided under former Code 1933, § 68-612).
Venue in action when party is natural person engaged in business of common carrier.
- While joinder of the carrier and insurance company in the same action was permitted by former Code 1933, § 68-612, a natural person engaged in the business of a common carrier cannot be joined with the insurance company in an action instituted elsewhere than in the county where the carrier resides. Bolin v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 92 Ga. App. 726, 89 S.E.2d 831 (1955) (decided under former Code 1933, § 68-612).
Statute of limitations commenced to run at time of commission of alleged tort.
- In an action based upon the insurance contract, the statute of limitation commenced running at the time of the commission of the alleged tort, which was the basis of the insurer's contractual liability. Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968) (decided under former Code 1933, § 68-612).
Not a special statutory proceeding.
- Former Code 1933, § 68-612 was not a special statutory proceeding excluded from the purview of O.C.G.A. T. 9, C. 11. Continental Ins. Co. v. Mercer, 130 Ga. App. 339, 203 S.E.2d 297 (1973) (decided under former Code 1933, § 68-612).
Effect on insurer of improper service on carrier.
- Fact that an interstate motor carrier had not been properly served did not mandate that the carrier's insurer also be dismissed. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987) (decided under former O.C.G.A. § 46-7-12).
2. Proof Requirements
Coverage must be proved in actions when insurer is joined; if not, no verdict and judgment can be sustained against the insurer. St. Paul Fire & Marine Ins. Co. v. Fleet Transp. Co., 116 Ga. App. 606, 158 S.E.2d 476 (1967) (decided under former Code 1933, § 68-612).
Sustaining of actionable injury is condition precedent to action on policy.
- Sustaining of actionable injury was, under former O.C.G.A. § 46-7-12, the only condition precedent to an action on the policy. When actionable injury was alleged in an action on the policy, the terms of the statute were complied with, and the petitioner upon proper proof of the injury is entitled to recover on the policy. The cause of action was not on the tort, but on the contract by alleging the occurrence of the condition precedent required by the statute, which statute was an integral part of the contract of insurance. Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24 (1936) (decided under former Code 1933, § 68-612); Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968);(decided under former Code 1933, § 68-612).
Proof required for direct action against insurer.
- Proof that a policy was filed and approved by the Public Service Commission was required in order to maintain a direct action against the insurer of a contract motor carrier. Canal Ins. Co. v. Farmer, 222 Ga. App. 539, 474 S.E.2d 732 (1996) (decided under former O.C.G.A. § 46-7-12).
In a case arising from an automobile crash, while former O.C.G.A. § 46-7-12 provided a direct action against an insurer of a common carrier, and served as a sort of surety bond to protect the public, a plaintiff's claim against the insurer of the other driver's employer failed because the plaintiff did not plead that the employer was a common carrier or that the insurer's policy had been filed with, much less approved by, the Public Service Commission. Lee v. Huttig Bldg. Prods., F. Supp. 2d (M.D. Ga. Sept. 16, 2005) (decided under former O.C.G.A. § 46-7-12).
Applicability and interstate commerce.
- In an action against the driver of a tractor-trailer and the driver's insurer, when neither a bond nor an insurance policy had been filed with the commission and the driver was not registered with the commission as a motor carrier, no direct action against the insurer was allowable. Lockhart v. Southern Gen. Ins. Co., 231 Ga. App. 311, 498 S.E.2d 161 (1998) (decided under former O.C.G.A. § 46-7-12).
Direct action statute did not apply to plaintiff's cause of action because the action arose out of interstate commerce, and even if the statute had applied, the plaintiff would not have been able to prove that the Public Service Commission had approved the insurance policy, a prerequisite to a direct action under former O.C.G.A. § 46-7-12. Dundee Mills, Inc. v. John Deere Ins. Co., 248 Ga. App. 39, 545 S.E.2d 604 (2001) (decided under former O.C.G.A. § 46-7-12).
For recovery, necessary to show injury was caused by negligence of principal or agents.
- In order to authorize a recovery in an action brought on a bond or insurance policy it would be necessary to show that the injury complained of was caused by the negligence of the principal in the bond, the principal's agents, or representatives, in the operation of the described automobile. Zachry v. City Council, 78 Ga. App. 746, 52 S.E.2d 339 (1949) (decided under former Code 1933, § 68-612).
Mere proof of liability coverage insufficient.
- Since former O.C.G.A. § 46-7-12 created a direct pre-judgment cause of action in contract against an insurer and did not merely provide a statutory exception to the procedural prohibition against joinder of a liability insurer as a party defendant in a tort action against its insured, it follows that mere proof that the allegedly negligent tortfeasor had liability coverage was not necessarily sufficient proof of the direct cause of action against the insurer itself. Such proof would fail to show that the injured party was a third-party beneficiary who had a direct pre-judgment cause of action in contract against the insurer itself. Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 359 S.E.2d 351 (1987), cert. denied, 183 Ga. App. 906, 359 S.E.2d 351 (1988) (decided under former O.C.G.A. § 46-7-12).
Submission of policy limits to the jury.
- Since the plaintiff in a motor collision suit against a common carrier and the carrier's insurer can prove the limits of coverage so as to sustain a judgment against the insurer without submitting the policy limits to the jury and since submission of the policy limits to the jury tended to prejudice the defendants, the Supreme Court of Georgia concluded that the objection of a defendant common carrier and the carrier's insurer to the submission of policy limits to the jury should have been sustained. Unless it was necessary, the amount of insurance coverage should not be placed before the jury. Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746, 272 S.E.2d 702 (1980) (decided under former Code 1933, § 68-612).
Status as "carrier."
- Step van used exclusively by the van's owner to transport the owner's own products, and which was never held out for hire to the public and was not used or hired by the public for the transportation of either goods or people, was neither a common nor contract carrier as those terms were defined in O.C.G.A. Title 46 and used in the direct action provisions contained in former O.C.G.A. §§ 46-7-12 and46-7-58. National Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 414 S.E.2d 731 (1992) (decided under former O.C.G.A. § 46-7-12).
Prescribed forms.
- Summary judgment for the insurer was reversed, and the amended version of former O.C.G.A. § 46-7-12(c), requiring a common carrier to file prescribed forms evidencing insurance, was applied retroactively, permitting a direct action against the insurer by an injured party for injuries suffered in a motor vehicle accident, despite the failure to file the prescribed form evidencing the insurance policy. Devore v. Liberty Mut. Ins. Co., 257 Ga. App. 7, 570 S.E.2d 87 (2002) (decided under former O.C.G.A. § 46-7-12).
3. Joinder Issues
Joint action against carrier and insurer permissible.
- Person who had been injured by the alleged negligence of the driver of a motor common carrier truck can maintain a joint action at law against the motor common carrier and the indemnity company from which such motor common carrier had procured a policy of indemnity insurance, and such action was not controlled by the general rule that an action ex delicto cannot be joined with an action ex contractu. LaHatte v. Walton, 53 Ga. App. 6, 184 S.E. 742 (1936) (decided under Ga. L. 1929, pp. 293, 297, § 5).
Former Code 1933, § 68-612 permitted a motor carrier and the carrier's insurance company to be joined in the same action as defendants. Har-Pen Truck Lines v. Mills, 378 F.2d 705 (5th Cir. 1967) (decided under former Code 1933, § 68-612).
Responsibility of insurance carrier.
- Insurer was neither a joint tortfeasor nor responsible for the carrier's negligent conduct under a theory of vicarious liability; consequently, plaintiff's attempts to impute the carrier's negligence to the insurer were improper and prejudicial, as was the argument that the jury should base the jury's award on the insurer's treatment of plaintiff independent of the collision. Myrick v. Stephanos, 220 Ga. App. 520, 472 S.E.2d 431 (1996) (decided under former O.C.G.A. § 46-7-12).
Joinder not required.
- While former O.C.G.A. § 46-7-12 permited joinder of the carrier and the insurer in a suit by a member of the public who was injured by the negligence of a carrier, it did not require it. Griffin v. Johnson, 157 Ga. App. 657, 278 S.E.2d 422 (1981) (decided under former O.C.G.A. § 46-7-12).
Purpose of joinder.
- Erroneous dismissal of motor carrier's liability insurer did not entitle accident victim to a new trial on liability and damages; provision allowing joinder of insurer was not intended to enhance the value of a third party's claim for damages; plaintiff had no separate claim against a motor carrier's insurer; the purpose of permitting joinder of the insurer in a claim against the carrier was to further the policy of the former Motor Carrier Act to protect the public against injuries caused by the carrier's negligence. Andrews v. Yellow Freight Sys., 262 Ga. 476, 421 S.E.2d 712 (1992) (decided under former O.C.G.A. § 46-7-12).
Relationship to other statutes.
- Insurer failed to meet the insurer's burden of showing that a company the insurer insured was not a "motor common carrier" or a "motor contract carrier" under former O.C.G.A. § 46-1-1(9)(C) when a tractor-trailer the company owned was involved in an accident because, although the insurer showed that the tractor-trailer was being used to haul timber products when the accident occurred, the insurer did not show that the tractor-trailer was used exclusively for that purpose, and the trial court erred when the court granted the insurer's motion for summary judgment on plaintiff's personal injury claims. Jarrard v. Clarendon Nat'l Ins. Co., 267 Ga. App. 594, 600 S.E.2d 689 (2004) (decided under former O.C.G.A. § 46-7-12).
Joinder of insurer permitted but no limitation on amount of damages pled.
- Former Code 1933, § 68-612 allowed the commission to fix the amount of bond or insurance coverage required of a carrier and the statute allowed a plaintiff to join as a party the insurance carrier who had issued a policy to meet the coverage requirement. However, when an insurer was joined as a party in an action against a carrier, the section did not limit the amount of damages which can be pled against the insurer to the minimum coverage required of carriers by the commission. Herring v. Rabun Trucking Co., 147 Ga. App. 713, 250 S.E.2d 167 (1978) (decided under former Code 1933, § 68-612).
Existence of approved policy necessary for joinder.
- Unless the applicability of former O.C.G.A. § 46-7-12 was shown by evidence of the existence of a policy issued with the approval of the Public Service Commission, the general rule, that an insurer may not be joined as a party defendant with the insurer's insured when there had been no judgment previously obtained against the insured, was applicable. Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 359 S.E.2d 351 (1987), cert. denied, 183 Ga. App. 906, 359 S.E.2d 351 (1988) (decided under former O.C.G.A. § 46-7-12).
Joinder for out-of-state collision.
- Joinder was not prohibited merely because a collision occurred on a highway in another state. Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (1993) (decided under former O.C.G.A. § 46-7-12).
Joinder of interstate carrier.
- Insurer of motor carrier was joined in an action against a carrier operating under a certificate of convenience issued by the state and who was required to be, or could have been sued in Georgia. Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (1993) (decided under former O.C.G.A. § 46-7-12).
When joinder of motor carrier's insurer was authorized.
- In actions against a motor carrier, required by former Code 1933, § 68-612 to file such bond or insurance with the commission, joinder of the motor carrier's insurer was authorized, regardless of whether the carrier was operating in interstate or intrastate commerce at the time of the injury. Harper Motor Lines v. Roling, 218 Ga. 812, 130 S.E.2d 817 (1963) (decided under former Code 1933, § 68-612).
Effect of concession to liability.- In a suit arising from a motor vehicle accident, when an insurance company provided liability insurance coverage for a tractor-trailer unit, the insurance company was not entitled to summary judgment on the grounds that the company's admission of liability under the company's insurance contract removed the company from the purview of the direct action statutes because, once the insurance company was joined under the direct action statutes, the insurance company had to remain in the case until final judgment or until the judgment was later dismissed by the plaintiff or the court. McGill v. Am. Trucking & Transp., Ins. Co., 77 F. Supp. 3d 1261 (N.D. Ga. 2015).
Motor carrier not exempt.
- Insurer was properly joined in action against transportation company when the truck involved in the accident was registered as a motor carrier and at times hauled loads which were not exempt despite the truck's exempt cargo of produce at the time of the accident. Smith v. Commercial Transp., Inc., 220 Ga. App. 866, 470 S.E.2d 446 (1996) (decided under former O.C.G.A. § 46-7-12).
In a wrongful death case, a motor carrier's insurer was subject to direct suit under the direct action statute, former O.C.G.A. § 46-7-12(c). The exemption for motor vehicles used exclusively to carry dairy or agricultural products, former O.C.G.A. § 46-1-1(9)(C)(x), did not apply because the insured used a tractor to haul other products besides logs, although the insured hauled logs exclusively in the weeks prior to the accident. Occidental Fire & Cas. Co. of N.C. v. Johnson, 302 Ga. App. 677, 691 S.E.2d 589 (2010) (decided under former O.C.G.A. § 46-7-12).
Joinder not authorized.
- Truck which was engaged exclusively in the transportation of potting soil was not a "motor common carrier" and former O.C.G.A. § 46-7-12(e) did not, therefore, authorize joinder of the truck's insurer as a defendant in a suit against the insured. National Indem. Co. v. Tatum, 193 Ga. App. 698, 388 S.E.2d 896 (1989) (decided under former O.C.G.A. § 46-7-12).
Truck which was engaged exclusively in the transportation of gravel, crushed stone, plant mix road material or road base materials was not a "motor common carrier" and former O.C.G.A. § 46-7-12(e) did not, therefore, afford plaintiff the right to join the truck's insurer as a defendant in a suit against the insured. Bailey v. Occidental Fire & Cas. Co., 193 Ga. App. 710, 388 S.E.2d 899 (1989) (decided under former O.C.G.A. § 46-7-12).
Although former O.C.G.A. § 46-7-12 provided for joinder of an insurer when that insurer had potential liability under an insurance policy, the statute did not create a cause of action against an insurer which, under the terms of the insurer's policy, cannot be liable with respect to the accident in question. McMillon v. Empire Fire & Marine Ins. Co., 209 Ga. App. 378, 433 S.E.2d 429 (1993) (decided under former O.C.G.A. § 46-7-12).
Injured person could not join a motor carrier's insurer in an action against the carrier since the carrier was not registered in Georgia and had not filed an insurance policy with the commission. Caudill v. Strickland, 230 Ga. App. 644, 498 S.E.2d 81 (1998) (decided under former O.C.G.A. § 46-7-12).
When joinder of parties not permissible.
- In the absence of statutory provisions to the contrary, an insurance company, issuing an ordinary indemnity policy, cannot be joined as a party defendant with a tortfeasor in order to "fix the liability" of the insurance company. Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949) (decided under former Code 1933, § 68-612).
No joinder of defendant not in privity with insurance company when carrier and company joined.- When a motor carrier and the carrier's insurance company were joined as defendants, no other defendant may be joined who was not in privity with the insurance company. Har-Pen Truck Lines v. Mills, 378 F.2d 705 (5th Cir. 1967) (decided under former Code 1933, § 68-612).
No joinder of insurer in action against carrier for injuries caused in another state.- Insurance carrier may not be joined under former Code 1933, § 68-612 as a defendant with a motor common carrier licensed to do intrastate and interstate business in an action brought in this state by a passenger on an interstate journey for personal injuries caused by the carrier's negligence in another state. Rogers v. Atlantic Greyhound Corp., 50 F. Supp. 662 (S.D. Ga. 1943).
Petition not subject to dismissal on misjoinder grounds.
- Petition for damages joining as defendants a common carrier for hire by motor truck, the truck's driver, and the truck's insurer, under former Code 1933, § 68-612, was not subject to demurrer (now motion to dismiss) on the ground that there was a misjoinder of parties and causes of action. Pilot Freight Carriers, Inc. v. Parks, 80 Ga. App. 137, 55 S.E.2d 746 (1949) (decided under former Code 1933, § 68-612).
No misjoinder when action against proper parties.
- It being alleged that the driver of the motor vehicle was engaged in carrying out the duties of the driver's employment as a driver for common carrier at the time of the accident, and it appearing that the casualty company was the insurance carrier of the motor carrier, the action was properly brought against the three named defendants, and there was no misjoinder. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948) (decided under former Code 1933, § 68-612).
Construction of joinder provisions.
- The 1937 amendment (Ga. L. 1937, p. 730) to the original statute must also be strictly construed, and it does not expressly or otherwise provide for the joining in one action of an action ex contractu against an insurance company and an action in tort against a third person in no way connected with the insurance company. Reeves v. McHan, 78 Ga. App. 305, 50 S.E.2d 787 (1948) (decided under former Code 1933, § 68-612).
4. Other Procedural Issues
Suing insurance carrier first despite policy provisions to contrary.
- Insurance carrier could be sued without first obtaining judgment against common carrier notwithstanding provisions in the policy to the contrary. Maryland Cas. Co. v. Dobson, 57 Ga. App. 594, 196 S.E. 300 (1938) (decided under former Code 1933, § 68-612).
Bringing suit against carrier's insurer.
- Member of public who was injured by negligence of motor common carrier need not obtain judgment against the carrier as condition precedent to bringing suit against carrier's insurer, any contractual agreement between the insurer and the carrier to the contrary notwithstanding. Griffin v. Johnson, 157 Ga. App. 657, 278 S.E.2d 422 (1981) (decided under former O.C.G.A. § 46-7-12).
Suit against insurer did not require joinder of motor carrier.
- An action on the policy itself against the insurer of a motor carrier was cognizable as an independent suit without joinder of the motor carrier. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983) (decided under former O.C.G.A. § 46-7-12).
Insurer subject to action on policy by injured member of public directly.
- Since bond or policy under former Code 1933, § 68-612 was given for the protection of the public, and the policy was one against liability, and since the intent and meaning of the statute permitted an action thereon jointly against the motor carrier and the surety on the bond or the insurer in the policy, the provisions of the section were read into the policy and supersede any provision therein to the contrary. Accordingly, the insurer was subject to action by an injured member of the public directly on the policy, without the necessity of first suing and obtaining judgment against the carrier. Great Am. Indem. Co. v. Durham, 54 Ga. App. 353, 187 S.E. 891 (1936) (decided under former Code 1933, § 68-612).
Joint or separate actions against parties.
- All three parties - the driver, the carrier, and the insurance company - may be joined and any one of such parties may be sued alone and thereby bind the company for payment of eventual judgment. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Breach of policy conditions may not defeat claims when actual notice to company of actions.
- Under former Code 1933, § 68-612 a breach of the policy conditions between the insured and the company, may not defeat the public third-parties claims, when there was actual notice to the company of the actions. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Insurer was absolutely liable for any unsatisfied judgment which may be obtained against the insurer's insured whether or not the insurer's insured breached the conditions of the policy. Seawheels, Inc. v. Bankers & Shippers Ins. Co., 175 Ga. App. 528, 333 S.E.2d 650 (1985) (decided under former O.C.G.A. § 46-7-12).
Bond or Indemnity Insurance
Filing of bond or indemnity insurance with commissioner required.
- Former Code 1933, § 68-612 required a motor common carrier to file a bond or policy of indemnity insurance with commission to protect the public against injury caused by its negligence, and permits suit against the motor carrier and the insurer in the same action. Gates v. L.G. DeWitt, Inc., 528 F.2d 405 (5th Cir.), modified, 532 F.2d 1052 (5th Cir. 1976) (decided under former Code 1933, § 68-612).
Named insured.
- Trial court properly found that a corporation was the named insured, notwithstanding the policy's identification of the named insured as an individual, doing business as a trade name, as the insurer filed a certificate of insurance with the Georgia Public Service Commission pursuant to former O.C.G.A. § 46-7-12(a) stating that the insurer had insured the corporation, doing business as the trade name. Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224, 603 S.E.2d 298 (2004) (decided under former O.C.G.A. § 46-7-12).
Approved policy is in nature of substitute surety bond.
- If the carrier's insurance policy was approved by the commission in accordance with former O.C.G.A. § 46-7-12, the policy was in the nature of a substitute surety bond, and the insurer was absolutely liable for any loss occasioned by the insurer's insured, any provisions in the policy, or in any rider attached thereto, to the contrary notwithstanding. American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847, 406 S.E.2d 273 (1991) (decided under former O.C.G.A. § 46-7-12).
Independent cause of action against insurer.
- In addition to a suit in tort against a negligent motor carrier, former O.C.G.A. § 46-7-12 established an independent cause of action against the carrier's insurer on behalf of a member of the public injured by the carrier's negligence. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983) (decided under former O.C.G.A. § 46-7-12).
Purpose of Code section.
- Purposes of former Code 1933, § 68-612 were to protect the members of the public who were injured by the operation of the common carrier's vehicles and the insurance contract may not defeat this public policy by conditions to which the state and public were not a party. This was a prerequisite to doing business in this state and on the state's highways either directly or by agent employees. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Indemnity insurance policy was not for the benefit of the insured but for the sole benefit of those who may have a cause of action for damages for the negligence of the motor common carrier. Such a policy was in the nature of a substitute surety bond and created liability in the insurer regardless of the insured's breach of the conditions of the policy. Progressive Cas. Ins. Co. v. Bryant, 205 Ga. App. 164, 421 S.E.2d 329 (1992) (decided under former O.C.G.A. § 46-7-12).
Three classes of protection.
- Former Code 1933, § 68-612 was designed to protect three classes against financial liability of motor common carriers to respond in damages for the negligent conduct of the business of motor common carriers. First, motor common carriers of passengers; second, motor common carriers of freight; and third, the public (when neither the relationship of carrier and passenger or carrier and shipper exists). American Cas. Co. v. Southern Stages, 70 Ga. App. 22, 27 S.E.2d 227 (1943) (decided under former Code 1933, § 68-612).
Protection of public is primary purpose of requiring bond or security.
- Primary purpose of requiring a bond, policy of insurance, or other security as a condition to the operation of public service motor vehicles for hire was for the protection of the public, by assuring those who were injured, in person or property, through the negligent operation of such vehicles, compensation for the injuries or damages sustained. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Bonds provided for are for benefit of public.
- Bond or indemnity insurance was required for benefit of passengers and public; the passengers and the public being beneficiaries which the statute sought to protect and insure, the indemnity insurance policy required by former Code 1933, § 68-612 was one of insurance against liability, and not insurance against loss by common carrier. Laster v. Maryland Cas. Co., 46 Ga. App. 620, 168 S.E. 128 (1933); LaHatte v. Walton, 53 Ga. App. 6, 184 S.E. 742 (1936) (decided under former Code 1933, § 68-612).
According to the language and patent intendment of former Code 1933, § 68-612, the bonds provided for herein are solely for the benefit of those persons who by reason of the negligence of the carrier, the carrier's servants or agents, may have a cause of action for damages, such bonds being "for the benefit of and subject to action thereon by any person who shall sustain actionable injury or loss protected thereby." Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24 (1936) (decided under former Code 1933, § 68-612).
Definition of indemnity insurance policy.
- Policy of insurance under former Code 1933, § 68-612 was not one of indemnity against loss as that term was generally understood; but was a direct and primary obligation to any person who shall sustain actionable injury or loss by reason of the negligence of the insured in the operation of the insured's motor vehicles insured under the policy. The sustaining of actionable injury was, under the statute, the only condition precedent to an action on the policy. Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24 (1936); Shapiro v. Aetna Cas. & Sur. Co., 234 F. Supp. 41 (N.D. Ga. 1963), aff'd, 337 F.2d 237 (5th Cir. 1964); Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Indemnity and not liability insurance required.
- If the insurer issued a single policy for more than the statutory minimum, the plaintiff suing under former Code 1933, § 68-612 was not limited to a judgment against that insurer for the minimum. The insurance required by that section was indemnity insurance, not liability insurance. It would create multiple litigation to require the plaintiffs to recover from the indemnitor the statutory minimum in the initial action and file later actions for excess amounts. Herring v. Rabun Trucking Co., 147 Ga. App. 713, 250 S.E.2d 167 (1978) (decided under former Code 1933, § 68-612).
Former statute referred to direct liability policy.
- In spite of the use of the phrase "indemnity insurance," former Code 1933, § 68-612 referred to a direct liability policy rather than indemnity in the true sense. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969) (decided under former Code 1933, § 68-612).
Policy issued is policy of insurance against liability.
- Insurance policy issued to a motor common carrier, with the approval of the commission, under the provisions of former Code 1933, § 68-612, which provided that the policy was one "for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants or agents," was a policy of insurance against liability, any provisions in the policy, or in any rider attached thereto, to the contrary notwithstanding, and an action may be brought upon the policy directly against the insurer by any member of the public, for the recovery of damages proximately caused by the negligence of the motor common carrier in the operation of one of the carrier's motor trucks along a public highway of this state, without first having obtained a judgment establishing liability for such negligence against the motor carrier, and without making the motor carrier a party to the action. Great Am. Indem. Co. v. Vickers, 53 Ga. App. 101, 185 S.E. 150, aff'd, 183 Ga. 233, 188 S.E. 24 (1936) (decided under former Code 1933, § 68-612).
Extent of coverage of security bond or policy.
- Security bond or policy ordinarily covers only injuries or damages which result from the careless, negligent, or improper operation of the motor carrier's vehicles. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Obligations of former Code 1933, § 68-612 clearly superseded any policy provision. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
No impairment of public's statutory rights by stipulations between parties to security contract.
- Under the bond or policy, the public has statutory rights which cannot be impaired by stipulations between the immediate parties to the security contract. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Incorporation of provisions into insurance policy.
- Policy with a rider upon the policy placed there by the commission pursuant to the provisions of former Code 1933, § 68-612 becomes a statutory policy, and the provisions of that section respecting the character of the policy and the liability of the parties, were read into the policy and supersede any provisions, if any, to the contrary, either in the policy or in the rider attached thereto. Great Am. Indem. Co. v. Vickers, 53 Ga. App. 101, 185 S.E. 150, aff'd, 183 Ga. 233, 188 S.E. 24 (1936) (decided under former Code 1933, § 68-612).
Incorporation of provisions into bond filed.
- Provision that the bond given by the carrier must be for the protection of the public against injuries proximately caused by the carriers' negligence, must, when the bond was approved by the commission as required by former Code 1933, § 68-612 as a condition precedent to the issuance of the certificate to the carrier, be read into the bond and become one of the provisions thereof, anything in the bond or riders attached thereto to the contrary notwithstanding. Great Am. Indem. Co. v. Vickers, 53 Ga. App. 101, 185 S.E. 150, aff'd, 183 Ga. 233, 188 S.E. 24 (1936) (decided under former Code 1933, § 68-612).
Bond or insurance provisions contrary to former statute without force or effect.
- Bond or policy of indemnity insurance given under former Code 1933, § 68-612 must conform to its requirements, and a provision contained therein contrary to such requirements was without force and effect. Maryland Cas. Co. v. Dobson, 57 Ga. App. 594, 196 S.E. 300 (1938) (decided under former Code 1933, § 68-612).
Substitution of indemnity policy by carrier.
- When a carrier is allowed to substitute a policy of indemnity insurance, such policy must substantially conform to all of the provisions of the statute relating to bonds. Seawheels, Inc. v. Bankers & Shippers Ins. Co., 175 Ga. App. 528, 333 S.E.2d 650 (1985) (decided under former O.C.G.A. § 46-7-12).
Excess insurer should have been dismissed from driver's action against insured.
- Because the excess insurer's insurance policy establishes that it provided only excess insurance to the insured, and because excess insurers were not proper parties to a plaintiff's action against an insured, the trial court erred when the court denied the insurer's motion to dismiss the excess insurer from the driver's suit against the insured. RLI Insurance Co. v. Duncan, 345 Ga. App. 876, 815 S.E.2d 558 (2018).
Legislative intent that insurer stand in shoes of motor common carrier.
- It was the legislative intent in passing former Code 1933, § 68-612 that the insurer carrier was to stand in the shoes of the motor common carrier and be liable in any instance of negligence when the motor common carrier was liable. St. Paul Fire & Marine Ins. Co. v. Fleet Transp. Co., 116 Ga. App. 606, 158 S.E.2d 476 (1967) (decided under former Code 1933, § 68-612).
When judgment creditor may recover.
- One who obtains a judgment against the insured and then seeks to enforce the judgment against the insurer occupies a like status to the insured; one derives one's rights under the policy through the insured, and one is entitled to recover under the policy only if it appears that all conditions precedent have been complied with. Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 367 S.E.2d 820 (1988) (decided under former O.C.G.A. § 46-7-12).
Liability of surety or insurer was joint and several with the liability of the owner or operator of the motor vehicle. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969), commented on in 6 Ga. St. B.J. 225 (1969);(decided under former Code 1933, § 68-612).
Liability of insurance carrier extends to existence of relation of common carrier and passenger.
- When an indemnity insurance policy was executed under the provisions of former Code 1933, § 68-612, containing the words, "resulting from the negligent operation, maintenance or use of motor vehicles," such words would not be construed to limit liability for negligence of the driver of a passenger vehicle while such vehicle was in motion only. This being a statutory provision, the provisions of the policy were superseded by the terms of the statute. The endorsement of the commission of such words in a rider attached to the policy was construed to mean that the liability of the insurance carrier extended to and included injuries received by a passenger, caused by the negligence of such motor carrier, the carrier's servants or agents, during the existence of the relation of common carrier and passenger, and until such relation was terminated in some manner provided by law. American Cas. Co. v. Southern Stages, 70 Ga. App. 22, 27 S.E.2d 227 (1943) (decided under former Code 1933, § 68-612).
Liability of insurance carrier not limited to negligence of carrier only when vehicle in motion.
- Former Code 1933, § 68-612 nowhere provided that the liability of the insurance carrier be limited to the negligence of the motor common carrier, the carrier's servants or agents, only when the vehicle was in motion. American Cas. Co. v. Southern Stages, 70 Ga. App. 22, 27 S.E.2d 227 (1943) (decided under former Code 1933, § 68-612).
No insurance required for carrier's vehicles while being used outside employment.
- Plain reading of the statute will not support a holding that a carrier must provide individual liability coverage for the carrier's servants or agents while those agents are operating the carrier's vehicles outside the scope of their employment. Great W. Cas. Co. v. Norris, 734 F.2d 697 (11th Cir. 1984) (decided under former O.C.G.A. § 46-7-12).
Liability of insurance carrier on policy is ancillary to that of common carrier.
- While the "cause of action" (or statement of a claim) was not on the tort, nevertheless, the tort constituted the real cause of action, and the liability of the insurance carrier on the carrier's policy, issued as required by law, was merely ancillary to that of the common carrier. Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968) (decided under former Code 1933, § 68-612).
Insurance carrier may not contract for less liability than imposed by statute.
- Under former Code 1933, § 68-612, it was the legislative intent that the insurance carrier was to stand in the shoes of the motor common carrier of passengers and be liable to the passenger in any instance of negligence when the motor common carrier was liable. The statute nowhere remotely expressed or implied that when an insurance carrier undertook for hire to stand sponsor for the negligent acts of a motor common carrier of passengers under the general law governing this relationship such insurance carrier may contract for a less liability than that which the statute imposed upon the motor common carrier itself. To give the statute such a construction would be to render the statute subservient to the conditions of the insurance policy and not the insurance policy subservient to the provisions of the statute. American Cas. Co. v. Southern Stages, 70 Ga. App. 22, 27 S.E.2d 227 (1943) (decided under former Code 1933, § 68-612).
Nothing in former Code 1933, § 68-612 limited direct liability of insurer of carrier, when joined as a defendant in an action against a carrier to the minimum bond or insurance coverage required of carriers by the commission. Herring v. Rabun Trucking Co., 147 Ga. App. 713, 250 S.E.2d 167 (1978) (decided under former Code 1933, § 68-612).
No liability of insurer when insured carrier not liable.
- It was not the purpose of former Code 1933, § 68-612 to make an insurance company, which had issued the carrier a policy of indemnity insurance in lieu of a bond, liable when the insured carrier itself was not liable. Robbins v. Liberty Mut. Ins. Co., 113 Ga. App. 393, 148 S.E.2d 172 (1966) (decided under former Code 1933, § 68-612).
No actionable injury established as a result of insured's indemnification.
- In a negligence suit arising from a tractor trailer collision, a trial court erred by failing to grant summary judgment to a transfer company's insurer because an indemnity agreement between the suing driver and the transfer company made it impossible for the suing driver to obtain a judgment against the transfer company; therefore, there was no actionable injury, pursuant to former O.C.G.A. § 46-7-12, for which the transfer company's insurer could be held liable. Coleman v. B-H Transfer Co., 290 Ga. App. 503, 659 S.E.2d 880 (2008), aff'd, 284 Ga. 624, 669 S.E.2d 141 (2008) (decided under former O.C.G.A. § 46-7-12).
Liability probably does not extend to punitive damages.
- Liability under former Code 1933, § 68-612 would probably not extend to punitive damages. As a factual probability, attorneys fees would logically fall into the same classification as being uncollectible from the company. Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969) (decided under former Code 1933, § 68-612).
Duty of issuer of liability surety bond.
- Liability surety bond, when not supplanted by an insurance policy, was similar to a motor vehicle liability insurance policy in that the bond also provides protection to the general public for damage to person or property arising from negligent acts or omissions of the motor carrier for whom it was issued. The issuer of the bond was obligated to provide the minimum no-fault coverage afforded under former O.C.G.A. § 33-34-4, notwithstanding any provisions of the contract or bond. Homick v. American Cas. Co., 202 Ga. App. 831, 415 S.E.2d 669, cert. denied, 202 Ga. App. 906, 415 S.E.2d 669 (1992) (decided under former O.C.G.A. § 46-7-12).
Liability of insurance carrier limited.
- Liability of an insurer of a motor common carrier for an actionable loss caused by a vehicle not specifically described in the insurance policy was limited to the minimum limits established by rule of the commission. Ross v. Stephens, 269 Ga. 266, 496 S.E.2d 705 (1998) (decided under former O.C.G.A. § 46-7-12).
Bond or indemnity insurance.
- Minimum compulsory liability limits established by a rule of the Public Service Commission were applicable to personal injury claims asserted by passengers in a tractor-trailer, when the passengers sought recovery up to minimum limits of $100,000/$300,000 as established by the rule; the claims were not subject to the lower limits established by former O.C.G.A. § 40-9-2(5)(A) (see now O.C.G.A. § 33-7-11(a)(1)(A)), even though the tractor-trailer was a freight carrier and not a passenger carrier. Guinn Transp., Inc. v. Canal Ins. Co., 234 Ga. App. 235, 507 S.E.2d 144 (1998) (decided under former O.C.G.A. § 46-7-12).
Notice of cancellation.
- When a Form E endorsement filed with the Georgia Public Service Commission provided that an insurance company had issued the insurer's insured an insurance policy and the policy lapsed before an incident giving rise to liability on the part of the insured and before proper notice of cancellation was given to the Commission, the insurer's liability to a third party injured by the insured was based on the policy itself as opposed to liability based on the minimum coverage imposed by law. Progressive Preferred Ins. Co. v. Ramirez, 277 Ga. 392, 588 S.E.2d 751 (2003) (decided under former O.C.G.A. § 46-7-12).
Failure to file notice of cancellation.
- Insurer's failure to file a notice of cancellation with the Georgia Department of Motor Vehicle Safety (DMVS) did not render the insurer liable under the direct action statute, former O.C.G.A. § 46-7-12, because the former insurer had never obtained a permit of authority under former O.C.G.A. § 46-7-3 to operate as a carrier in Georgia, the insurer could not have filed either a certificate of insurance or a notice of cancellation with the DMVS. Kolencik v. Stratford Ins. Co., F. Supp. 2d (N.D. Ga. Nov. 28, 2005) (decided under former O.C.G.A. § 46-7-12).
If state court lacked jurisdiction over declaratory issues, it should transfer to superior court.
- In an injured driver's action against a motor carrier and its insurer in a county's state court, in which the insurer filed a counterclaim and cross-claim for a declaratory judgment as to its duties and obligations under the insurance policy, if the state court determined that it lacked jurisdiction over questions raised in the insurer's motion for summary judgment, it was error to deny summary judgment, and the state court should instead have transferred the action to the superior court pursuant to Ga. Unif. Transfer R. T-4. Nat'l Indem. Co. v. Lariscy, 352 Ga. App. 446, 835 S.E.2d 307 (2019).
Interstate Carriers
Section applicable to interstate carriers.
- Subsection (e) of former O.C.G.A. § 46-7-12 applied to interstate as well as intrastate carriers; thus, a motorist injured in an accident with a tractor trailer owned by a motor carrier engaged solely in interstate commerce could maintain a direct action against the insurer of the motor carrier. Williams v. Southern Drayage, Inc., 213 Ga. App. 895, 446 S.E.2d 758 (1994) (decided under former Code 1933, § 68-612).
Carrier registered with the Public Service Commission was not exempt from subsection (e) of former O.C.G.A. § 46-7-12 simply because it engaged only in interstate commerce. Additionally, the federal law did not preempt the Georgia definition of motor carrier for purposes of a personal injury action against the carrier. Xpress Cargo Sys. v. McMath, 225 Ga. App. 32, 481 S.E.2d 885 (1997) (decided under former O.C.G.A. § 46-7-12).
Section inapplicable to causes arising out of interstate commerce.
- Although former O.C.G.A. § 46-7-12 authorized a shipper to bring a direct action against the insurer who provided liability coverage to a motor common carrier, the section did not apply to a cause of action which arose out of interstate commerce. Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 367 S.E.2d 820 (1988) (decided under former O.C.G.A. § 46-7-12).
No conflict with congressional regulation of motor carriers.- Former Code 1933, § 68-612 did not conflict with congressional regulation of motor carriers engaged in interstate commerce, but was a reasonable and valid requirement imposed upon those who seek to do an intrastate motor carrier business in Georgia. Acme Freight Lines v. Blackmon, 131 F.2d 62 (5th Cir. 1942) (decided under former Code 1933, § 68-612).
Federal Aviation Administration Authorization Act did not preempt statute.
- Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c), prohibited a state from enacting or enforcing a law or regulation related to "a price, route, or service" of any motor carrier, but did not invalidate insurance requirements imposed by the statute and Public Service Commission Rule1-8-1-.01 as the act did not restrict a state's authority to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements. Driskell v. Empire Fire & Marine Ins. Co., 249 Ga. App. 56, 547 S.E.2d 360 (2001) (decided under former O.C.G.A. § 46-7-12).
Section designed to protect public.
- Former Code 1933, § 68-612 was designed to protect the "public" whose safety may be endangered by the carrier's operations as distinguished from those having an interstate relationship. It cannot be assumed that the state attempted to enact legislation having an extraterritorial effect by applying to interstate passengers and cargoes. Rogers v. Atlantic Greyhound Corp., 50 F. Supp. 662 (S.D. Ga. 1943) (decided under former O.C.G.A. § 46-7-12).
Provision allowing for direct actions against insurance carriers applied to interstate carriers.- Proper interpretation of the provision in former Code 1933, § 68-612, allowing for direct actions against insurance carriers, was that the statute applied to interstate carriers as well as intrastate carriers. Kimberly v. Bankers & Shippers Ins. Co., 490 F. Supp. 93 (N.D. Ga. 1980) (decided under former Code 1933, § 68-612).
Persons injured by negligence of carrier were entitled to rely upon required protection of Code section.- When people were injured upon the highways of this state by the negligence of a carrier, the individuals were properly entitled to rely upon the protection required by former Code 1933, § 68-612, and this was true whether the particular vehicle was at the time of the accident engaged in interstate or intrastate commerce. Acme Freight Lines v. Blackmon, 131 F.2d 62 (5th Cir. 1942) (decided under former Code 1933, § 68-612).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 68-612, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.
Purpose of Code section.- It was the purpose of former Code 1933, § 68-612 to protect the public against injury which may be caused by the negligence of the motor common carrier, the carrier's servants or agents. 1948-49 Op. Att'y Gen. p. 585 (decided under former Code 1933, § 68-612).
Commission had discretion concerning bond or indemnity insurance.- Former Code 1933, § 68-612 placed a discretion in the commission as to whether or not a bond or a policy of indemnity insurance shall be required of carriers coming under its jurisdiction. 1948-49 Op. Att'y Gen. p. 585 (decided under former Code 1933, § 68-612).
RESEARCH REFERENCES
C.J.S.
- 60 C.J.S., Motor Vehicles, §§ 223 et seq., 286.
ALR.
- Validity of municipal ordinance requiring indemnity insurance as condition of operating taxicab, 95 A.L.R. 1224.
Territorial coverage of motor carrier's public liability policy required by statute or ordinance as coextensive with area of authorized operation, 154 A.L.R. 520.
Liability of motor carrier for injuries to passengers from accident occasioned by blowout or other failure of tire, 44 A.L.R.2d 835.
Owning, leasing, or otherwise engaging in business of furnishing services for taxicabs as basis of tort liability for acts of taxi driver under respondeat superior doctrine, 8 A.L.R.3d 818.