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2018 Georgia Code 46-2-90 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 46-2-90 Case Law from Google Scholar Amendments to OCGA 46-2-90

TITLE 46 PUBLIC UTILITIES AND PUBLIC TRANSPORTATION

Section 2. Public Service Commission, 46-2-1 through 46-2-95.

ARTICLE 5 MISCELLANEOUS OFFENSES AND PENALTIES

46-2-90. Liability of companies subject to jurisdiction of commission generally; venue for actions generally; award of attorney's fee.

If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney's fee, which shall be taxed and collected as part of the costs of the case.

(Ga. L. 1907, p. 72, § 9; Civil Code 1910, § 2666; Code 1933, § 93-415.)

Law reviews.

- For article advocating that payment of attorneys fees be assigned to the losing party, see 18 Ga. B.J. 439 (1956). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

JUDICIAL DECISIONS

Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not repeal former Civil Code 1910, § 2640 (see O.C.G.A § 46-1-2), providing for actions against railroad companies. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

The combined intent of O.C.G.A. §§ 46-2-90 and 46-1-2 is to provide for the recovery of compensatory and exemplary damages as well as attorney fees for the tortious infliction of property damages upon the owner or possessor of property where the damage is inflicted as the result of a wilful act. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405, 330 S.E.2d 371 (1985).

No need to exhaust administrative remedy under O.C.G.A. § 46-2-90. - Trial court erred in concluding that the petitioners failed to exhaust their administrative remedies and by dismissing the petition challenging the calculation of municipal franchise fees because the petitioners were not required to exhaust any administrative remedy before proceeding under O.C.G.A. § 46-2-90 as that statute does not contemplate any administrative proceedings before the Georgia Public Service Commission. Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016).

In a putative class action against the power company regarding the collection of municipal franchise fees, the plaintiffs were not required to exhaust administrative remedies before bringing the plaintiffs' putative class action because the plaintiffs did not seek judicial relief from the Public Service Commission's orders; the plaintiffs did not dispute that the Commission could authorize the collection of those fees; the merits of the case were not committed by law to the exclusive jurisdiction of the Commission; and the putative class action would not infringe upon the Commission's exclusive jurisdiction to make just and reasonable rates for electrical service. Ga. Power Co. v. Cazier, 303 Ga. 820, 815 S.E.2d 922 (2018).

Violations of O.C.G.A. § 46-2-25.1 or O.C.G.A. § 46-2-25.2 did not impose any duties or obligations upon telecommunication providers, a violation of which would give rise to a cause of action under O.C.G.A. § 46-2-90. Lange v. Standard Tel. Co., 243 Ga. App. 301, 533 S.E.2d 162 (2000).

"Law of the state" is to be construed as referring to statute law. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

"Order of the commission" construed.

- Expression "order of the commission," refers to special orders of the commission, and not to its general rules. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

No right of action for difference in rates.

- Former Code 1933, § 93-415 (see O.C.G.A § 46-2-90) only gave a right of action for loss, damage or injury; there was no statute giving a right of action for difference in rates. Columbia Baking Co. v. Atlanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948).

Liability relating to "order of the commission."

- Only liability relating to "order of the commission" is for omission to perform such order or mere nonfeasance and does not include liability for the positive acts of charging and collecting freight in excess of the rates and tariffs fixed by the commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

No liability for rate difference where provided for in approved contract.

- A gas company under the jurisdiction of the Public Service Commission is not liable to an industrial consumer for the difference between the rates charged to it and those charged to other industrial users of gas when the latter rates are provided for in contracts filed with the commission which it permits to go into effect. Columbia Baking Co. v. Atlanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948).

Action by shipper against railroad for overcharges held not authorized.

- Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not confer right on shipper to bring action against railroad company for recovery of freight overcharges paid on intrastate shipments in excess of the rates and tariff fixed by the Public Service Commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

Liability for failure to restore electric power.

- City was liable for the actual damages caused by its violations of federal law in refusing immediately to restore electric power upon receiving notice of debtor's bankruptcy petition. Tarrant v. City of Douglas, 190 Bankr. 704 (Bankr. S.D. Ga. 1995).

When attorneys' fees may not be awarded.

- Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not authorize the recovery of attorneys' fees (in cases where they were not otherwise recoverable under the general law) where the thing done or omitted had not been forbidden by some statutory enactment in this state or by some order of the commission. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

Cited in Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, §§ 1205, 1206, 1207, 1210. 65 Am. Jur. 2d, Railroads, § 281.

ALR.

- Injury to one other than passenger or employee from fall of trolley pole or other part of streetcar, 5 A.L.R. 1336.

Liability of street railway company to passenger struck by vehicle not subject to its control, 31 A.L.R. 572; 44 A.L.R. 162.

Liability of street railway company or municipality for injury due to condition of part of street occupied by street railway, 54 A.L.R. 1291.

Liability of motorbus carrier to passenger injured through fall while alighting at place other than regular bus stop, 7 A.L.R.4th 1031.

Cases Citing O.C.G.A. § 46-2-90

Total Results: 2  |  Sort by: Relevance  |  Newest First

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Georgia Power Co. v. Cazier, 303 Ga. 820 (Ga. 2018).

Cited 7 times | Published | Supreme Court of Georgia | Jun 18, 2018

...For themselves and the putative class of Georgia Power customers, the plaintiffs assert claims for conversion, money had and received, unjust enrichment, and damages under OCGA § 46-2- 90.1 Georgia Power denies that it has calculated municipal franchise fees other 1 Section 46-2-90 provides: If any company under the jurisdiction of the [C]ommission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act wh...
...[T]here is no challenge to the validity or reasonableness of any utility rate set by the [C]ommission, and instead there is simply a challenge to the method of calculating and collecting the said fee. Id. (citations and punctuation omitted). The Court of Appeals also looked to OCGA § 46-2-90, the basis for the statutory cause of action asserted by the plaintiffs against Georgia Power, and noted that this statute “does not contemplate any administrative proceedings before the [Commission] . . . but rather authorizes an action to recover damages ‘in any court of competent jurisdiction’ . . . .” Id. at 509 (1). From its examination of the APA and OCGA § 46-2-90, the Court of Appeals determined that the plaintiffs were not required to exhaust administrative remedies....
...J., Benham, Hunstein, Nahmias, Peterson, JJ., and Judge Trenton Brown III concur. Melton, P. J., and Grant, J., concur in judgment only as to Division 3. Boggs, J., disqualified. 8 When we issued the writ of certiorari, we also invited the parties to brief whether OCGA § 46-2-90 affords a remedy to the plaintiffs for charges that are allegedly in excess of those authorized by the Commission....
...arges by an electrical service provider, considering changes in the background regulatory law since Atlantic Log. We extended an invitation to brief these questions in this case in light of the significance that the Court of Appeals attached to OCGA § 46-2-90 in its consideration of the exhaustion question. Our holding that exhaustion is not required in this case, however, is not driven by OCGA § 46-2- 90, and neither the trial court nor the Court of Appeals has made any ruling about whether the plaintiffs properly have stated a claim under OCGA § 46-2-90....
...Moreover, even if the plaintiffs failed to state a claim under the statute, they have asserted other claims against Georgia Power — for conversion, money had and received, and unjust enrichment — that would remain unaffected by a determination that OCGA § 46-2-90 affords no remedy in a case like this one. Accordingly, the resolution of the case now before us does not require the resolution of any questions about the meaning of OCGA § 46-2-90....
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Ga. Power Co. v. Cazier, 815 S.E.2d 922 (Ga. 2018).

Cited 7 times | Published | Supreme Court of Georgia | Jun 18, 2018

...al franchise fees in excess of the amounts authorized by the Commission. For themselves and the putative class of Georgia Power customers, the plaintiffs assert claims for conversion, money had and received, unjust enrichment, and damages under OCGA § 46-2-90.1 Georgia Power denies that it has calculated municipal franchise fees other than as required by the Commission, and Georgia Power asserts that the plaintiffs seek in this lawsuit to rewrite the applicable orders of the Commission. Follo...
...[T]here is no challenge to the validity or reasonableness of any utility rate set by the [C]ommission, and instead there is simply a challenge to the method of calculating and collecting the said fee. Id. (citations and punctuation omitted). The Court of Appeals also looked to OCGA § 46-2-90, the basis for the statutory cause of action asserted by the plaintiffs against Georgia Power, and noted that this statute "does not contemplate any administrative proceedings before the [Commission] ... but rather authorizes an action to recover damages 'in any court of competent jurisdiction' ...." Id. at 509 (1), 793 S.E.2d 668. From its examination of the APA and OCGA § 46-2-90, the Court of Appeals determined that the plaintiffs were not required to exhaust administrative remedies....
...The judgment of the Court of Appeals is affirmed.8 Judgment affirmed. *929Hines, C. J., Benham, Hunstein, Nahmias, Peterson, JJ., and Judge Trenton Brown III, concur; Melton , P. J., and Grant, J., concur in judgment only as to Division 3. Boggs, J., disqualified. Section 46-2-90 provides: If any company under the jurisdiction of the [C]ommission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by...
...515-2-1-.12. We express no opinion about the extent to which, when an issue is referred to an agency under the doctrine of primary jurisdiction, the agency's resolution of the issue is binding on the trial court. When we issued the writ of certiorari, we also invited the parties to brief whether OCGA § 46-2-90 affords a remedy to the plaintiffs for charges that are allegedly in excess of those authorized by the Commission....
...arges by an electrical service provider, considering changes in the background regulatory law since Atlantic Log. We extended an invitation to brief these questions in this case in light of the significance that the Court of Appeals attached to OCGA § 46-2-90 in its consideration of the exhaustion question. Our holding that exhaustion is not required in this case, however, is not driven by OCGA § 46-2-90, and neither the trial court nor the Court of Appeals has made any ruling about whether the plaintiffs properly have stated a claim under OCGA § 46-2-90....
...Moreover, even if the plaintiffs failed to state a claim under the statute, they have asserted other claims against Georgia Power-for conversion, money had and received, and unjust enrichment-that would remain unaffected by a determination that OCGA § 46-2-90 affords no remedy in a case like this one. Accordingly, the resolution of the case now before us does not require the resolution of any questions about the meaning of OCGA § 46-2-90....