O.C.G.A. § 46-7-12 (2019)

Annotations

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, ‘‘commissioner’’ was substituted for ‘‘commission’’ in the last sentence of subsection (c) (now (a)). Editor’s notes. - Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provides that the first 2000 Act which amended this Code section becomes fully effective July 1, 2001, but authorizes administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001.

Law reviews. - For article surveying recent legislative and judicial developments regarding Georgia’s insurance laws, see 31 Mercer L. Rev. 117 (1979). For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981). For annual survey of law of insurance, see 38 Mercer L. Rev. 247 (1986). For article, ‘‘Insurance,’’ see 53 Mercer L. Rev. 281 (2001). For comment on Tarrant v. Davis, 62 Ga. App. 880, 10 S.E.2d 636 (1940), see 3 Ga. B.J. 54 (1941). For comment on Spicer v. American Home Assurance Co., 292 F. Supp. 27 (N.D. Ga.), aff ’d per curiam, 402 F.2d 988 (5th Cir. 1968), see 6 Ga. St. B.J. 225 (1969).

JUDICIAL DECISIONS Analysis General Consideration Decisions under Former Code Section 46-7-58 Pleadings and Practice

1. In General 2. Proof Requirements 3. Joinder Issues 4. Other Procedural Issues Bond or Indemnity Insurance Interstate Carriers General Consideration Editor’s notes. - In light of the similarity of the provisions, decisions under former Ga. L. 1929, p. 293, and former Code Section 46-7-58, are included in the annotations under this Code section. Constitutionality. - The last sentence in subsection (e) (now subsection (c)) of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) considered with its 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). Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). The joinder provision does 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). The joinder of the motor carrier and its 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). Any issue as to the constitutionality of 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 where the trial court did not expressly consider and rule upon it. Wright v. Transus, Inc., 209 Ga. App. 771, 434 S.E.2d 786 (1993). Section must be strictly construed. - O.C.G.A. § 46-7-12 is 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). 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). 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). Preemption by federal law. - O.C.G.A. § 46-7-12 is not preempted by 49 U.S.C. § 10927 which provides for payment of a claim by an insurer after a final judgment has been recovered against the motor carrier it insures. Watkins v. H.O. Croley Granary, 555 F. Supp. 458 (N.D. Ga. 1982). No direct action against insurer of exempt vehicle. - Where 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 O.C.G.A. § 46-7-12. Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 474 S.E.2d 745 (1996). Direct action not authorized where accident occurred outside state. - O.C.G.A. § 46-7-12 does 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). ‘‘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). 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). 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). Injury refers to person and loss refers to baggage or property. - In former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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); LaHatte v. Walton, 53 Ga. App. 6, 184 S.E. 742 (1936). 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 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). 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 where 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). 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). Extent of coverage under policy issued pursuant to this section. - A provision in a policy issued pursuant to the provisions of former Code 1933, § 68-612 see O.C.G.A. § 46-7-12), that it 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). Evidence of policy limit. - Trial court did not abuse its discretion in denying appellees’ motion for mistrial where 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). Failure to list vehicle limited liability. - Where 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 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). Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) was designed to protect strangers to motor carrier, not those who,

General Consideration (Cont’d)

Decisions under Former Code Section

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). 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 its 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). 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).

Purpose of section. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) did not have as its 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). Constitutionality. - The joinder provision does 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). Nature of liability of carrier and insurer. - The 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). Permissibility of joinder of tort and contract actions. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) allowed the joinder of a tort action against a carrier with a contract action against its 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). Independent action on policy itself. - An action on the policy itself against the insurer of a motor carrier is cognizable as an independent suit without joinder of the motor carrier. Such a suit is an independent ex contractu action on the policy itself and is 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). Direct action not authorized where accident occurred outside state. - O.C.G.A. §n 46-7-12 does 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). Even if underlying acts of negligence occur in Georgia, the purposes of O.C.G.A. § 46-7-12 and the state’s interest in ensuring and expediting compensation of injured parties are not implicated where the accident does not occur in the state. Liberty

Mut. Ins. Co. v. Dehart, 206 Ga. App. 858, 426 S.E.2d 592 (1992). Permissibility of direct action against insurer of interstate carrier. - Where 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 (see O.C.G.A. § 46-7-12). 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). 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 where counsel did not learn that defendant was a common carrier and required to furnish adequate security until after discovery was commenced. Crews v. Blake, 52 F.R.D. 106 (S.D. Ga. 1971). Effect on insurer of improper service on carrier. - Because the action against the insurance carrier is based on contract with the public as the third party beneficiary of the contract and because subsection (e) of O.C.G.A. § 46-7-12 authorizes 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). Burden of proving vehicle exempt from definition of ‘‘motor contract carrier’’. - On the question of whether a carrier was a ‘‘motor contract carrier’’ under O.C.G.A. § 46-1-1(8) (now paragraph (7)) such that its insurer was subject to the joinder provisions of subsection (e) of O.C.G.A. § 46-7-12, the burden of proof was on the truck owner to show that its truck came within the exemption from the definition of ‘‘motor contract carrier’’ in § 46-1-1(8)(c)

(now subparagraph (7)(A)) 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). 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 O.C.G.A. § 46-7-12. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983). Essential elements for allowing direct action against insurer. - Proof of filing of the insurance policy and approval by the public service commission is 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); Kennedy v. Georgia-Carolina Refuse & Waste Co., 739 F. Supp. 604 (S.D. Ga. 1990). A step van used exclusively by its 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 are defined in O.C.G.A. Title 46 and used in the direct action provisions contained in O.C.G.A. § 46-7-12. National Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 414 S.E.2d 731 (1992). Pleadings and Practice 1. In General Section establishes independent cause of action against insurer. - In addition to a suit in tort against a negligent motor carrier, O.C.G.A. U 46-7-12 establishes 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). Cause of action against insurer is in contract not tort. Gates v. L.G. DeWitt, Inc., 528

Pleadings and Practice (Cont’d) 1. In General (Cont’d) F.2d 405 (5th Cir.), modified, 532 F.2d 1052 (5th Cir. 1976). Distinction between liability of common carrier and obligation of insurer to injured. - A 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 (see O.C.G.A. § 46-7-12), were neither joint tort-feasors nor joint contractors, so as to bring them within the provisions of Ga. Const. 1976, Art. VI, Sec. XIV, Para. IV, (Ga. Const. 1983, Art. VI, Sec. II, Para. IV) permitting suit to be instituted against joint obligors or joint tort-feasors 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). Venue in action where 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 (see O.C.G.A. § 46-7-12, 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). Statute of limitations commences to run at time of commission of alleged tort. - In an action based upon the insurance contract, the statute of limitation commences running at the time of the commission of the alleged tort, which is the basis of the insurer’s contractual liability. Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968). Applicability of Ch. 11, T. 9. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) was not a special statutory proceeding excluded from purview of O.C.G.A. Ch. 11, T. 9. Continental Ins. Co. v. Mercer,

130 Ga. App. 339, 203 S.E.2d 297 (1973). Effect on insurer of improper service on carrier. - Fact that an interstate motor carrier has not been properly served does not mandate that its insurer also be dismissed. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987). 2. Proof Requirements Coverage must be proved in actions where 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). Sustaining of actionable injury is condition precedent to action on policy. - The sustaining of actionable injury is, under O.C.G.A. U 46-7-12, the only condition precedent to an action on the policy. When actionable injury is alleged in an action on the policy, the terms of the statute are complied with, and the petitioner upon proper proof of the injury is entitled to recover on the policy. The cause of action is not on the tort, but on the contract by alleging the occurrence of the condition precedent required by the statute, which statute is an integral part of the contract of insurance. Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24 (1936); Addington v. Ohio S. Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968). Proof required for direct action against insurer. - Proof that a policy was filed and approved by the Public Service Commission is 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). Applicability and interstate commerce. - The direct action statute did not apply to plaintiff ’s cause of action because it arose out of interstate commerce, and even if the statute had applied, 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 O.C.G.A. U 46-7-12. Dundee Mills, Inc. v. John Deere Ins. Co., 248 Ga. App. 39, 545 S.E.2d 604 (2001). In an action against the driver of a tractor-trailer and the driver’s insurer, where 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). 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). Mere proof of liability coverage insufficient. - Since O.C.G.A. § 46-7-12 creates a direct pre-judgment cause of action in contract against an insurer and does 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 is 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). Submission of policy limits to the jury. - Since the plaintiff in a motor collision suit against a common carrier and its 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 tends to prejudice the defendants, the Supreme Court of Georgia concluded that the objection of a defendant common carrier and its insurer to the submission of policy limits to the jury should have been sustained. Unless it is 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). Status as ‘‘carrier.’’ - A step van used exclusively by its 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 are defined in O.C.G.A. Title 46 and used in the direct action provisions contained in O.C.G.A. § 46-7-12 and § 46-7-58 (now repealed). National Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 414 S.E.2d 731 (1992). Prescribed forms. - Summary judgment for the insurer was reversed, and the amended version of 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). 3. Joinder Issues Joint action against carrier and insurer permissible. - A person who has 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 has procured a policy of indemnity insurance, and such action is 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 former Ga. L. 1929, pp. 293, 297, § 5). Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) permitted motor carrier and its insurance company to be joined in same action as defendants. Har-Pen Truck Lines v. Mills, 378 F.2d 705 (5th Cir. 1967). Responsibility of insurance carrier. - An insurer is 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 its 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). Joinder not required. - While O.C.G.A. § 46-7-12 permits joinder of the carrier and

Pleadings and Practice (Cont’d) 3. Joinder Issues (Cont’d) the insurer in a suit by a member of the public who is injured by the negligence of a carrier, it does not require it. Griffin v. Johnson, 157 Ga. App. 657, 278 S.E.2d 422 (1981). Purpose of joinder. - Erroneous dismissal of motor carrier’s liability insurer did not entitle accident victim to new trial on liability and damages; provision allowing joinder of insurer is not intended to enhance value of third party’s claim for damages; plaintiff has no separate claim against motor carrier’s insurer; the purpose of permitting joinder of the insurer in a claim against the carrier is to further the policy of the 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). Joinder of insurer permitted but no limitation on amount of damages pleaded. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) allowed the commission to fix the amount of bond or insurance coverage required of a carrier and it allows a plaintiff to join as a party the insurance carrier who has issued a policy to meet the coverage requirement. However, where an insurer is joined as a party in an action against a carrier, the section does not limit the amount of damages which can be pleaded 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). Existence of approved policy necessary for joinder. - Unless the applicability of O.C.G.A. § 46-7-12 is 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 its insured where there has been no judgment previously obtained against the insured, is 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). Joinder for out-of-state collision. - Joinder is 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).

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). When joinder of motor carrier’s insurer is authorized. - In actions against a motor carrier, required by former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Motor carrier not exempt. - Insurer was properly joined in action against transportation company where 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). Joinder not authorized. - Truck which was engaged exclusively in the transportation of potting soil was not a ‘‘motor common carrier’’ and 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). 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 [].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). Although O.C.G.A. § 46-7-12 provides for joinder of an insurer where that insurer has potential liability under an insurance policy, it does not create a cause of action against an insurer which, under the terms of its 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). An injured person could not join a motor

carrier’s insurer in an action against the carrier where 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). When joinder of parties not permissible. - In the absence of statutory provision to the contrary, an insurance company, issuing an ordinary indemnity policy, cannot be joined as a party defendant with a tort-feasor in order to ‘‘fix the liability’’ of the insurance company. Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949). No joinder of defendant not in privity with insurance company where carrier and company joined. - Where a motor carrier and its insurance company are joined as defendants, no other defendant may be joined who is not in privity with the insurance company. Har-Pen Truck Lines v. Mills, 378 F.2d 705 (5th Cir. 1967). No joinder of insurer in action against carrier for injuries caused in another state. - An insurance carrier may not be joined under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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. - The petition for damages joining as defendants a common carrier for hire by motor truck, its driver, and its insurer, under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), 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). No misjoinder where 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). Construction of joinder provisions of this section. - 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). 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). Bringing suit against carrier’s insurer. - Member of public who is 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). Suit against insurer does not require joinder of motor carrier. - An action on the policy itself against the insurer of a motor carrier is 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). Insurer subject to action on policy by injured member of public directly. - Since bond or policy under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) was given for the protection of the public, and the policy was one against liability, and since the intent and meaning of the statute permited 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.

Pleadings and Practice (Cont’d) 4. Other Procedural Issues (Cont’d) Durham, 54 Ga. App. 353, 187 S.E. 891 (1936). 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). Breach of policy conditions may not defeat claims where actual notice to company of actions. - Under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). 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). Bond or Indemnity Insurance Filing of bond or indemnity insurance with commissioner required. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) required motor common carrier to file 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). Approved policy is in nature of substitute surety bond. - If the carrier’s insurance policy is approved by the commission in accordance with O.C.G.A. § 46-7-12, the policy is in the nature of a substitute surety bond, and the insurer is absolutely liable for

any loss occasioned by its 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). Independent cause of action against insurer. - In addition to a suit in tort against a negligent motor carrier, O.C.G.A. § 46-7-12 establishes 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). Purpose of section. - Purposes of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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 are not a party. This is a prerequisite to doing business in this state and on its 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). The indemnity insurance policy is 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 is in the nature of a substitute surety bond and creates 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). Three classes of protection. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Protection of public is primary purpose of requiring bond or security. - The 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). Bonds provided for in this section for benefit of public. - Bond or indemnity insurance is required for benefit of passengers and public; the passengers and the public being beneficiaries which the statute seeks to protect and insure, the indemnity insurance policy required by former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). According to the language and patent intendment of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), the bonds provided for herein are solely for the benefit of those persons who by reason of the negligence of the carrier, its 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). Definition of indemnity insurance policy under this section. - The policy of insurance under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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 is, 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). Indemnity and not liability insurance required by this section. - If the insurer issues a single policy for more than the statutory minimum, the plaintiff suing under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). This section refers to direct liability policy. - In spite of the use of the phrase ‘‘indemnity insurance,’’ former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Policy issued under this section is policy of insurance against liability. - An insurance policy issued to a motor common carrier, with the approval of the commission, under the provisions of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), 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 its 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.

Bond or Indemnity Insurance (Cont’d) Indem. Co. v. Vickers, 53 Ga. App. 101, 185 S.E. 150, aff ’d, 183 Ga. 233, 188 S.E. 24 (1936). Extent of coverage of security bond or policy. - The 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). Obligations of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). 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). Incorporation of provisions of this section into insurance policy. - A policy with a rider upon it placed there by the commission pursuant to the provisions of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), 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). Incorporation of provisions into bond filed under this section. - The 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, where the bond was ap-

proved by the commission as required by former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Bond or insurance provisions contrary to this section without force or effect. - Bond or policy of indemnity insurance given under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Substitution of indemnity policy by carrier. - Where 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). Legislative intent that insurer stand in shoes of motor common carrier. - It was the legislative intent in passing former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) that the insurer carrier is to stand in the shoes of the motor common carrier and be liable in any instance of negligence where the motor common carrier is liable. St. Paul Fire & Marine Ins. Co. v. Fleet Transp. Co., 116 Ga. App. 606, 158 S.E.2d 476 (1967). When judgment creditor may recover. - One who obtains a judgment against the insured and then seeks to enforce it 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). Liability of surety or insurer is 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). Liability of insurance carrier extends to existence of relation of common carrier and passenger. - Where an indemnity insurance policy was executed under the provisions of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), containing the words, ‘‘resulting from the negligent operation, maintenance or use of motor vehicles,’’ such words will 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 are superseded by the terms of the statute. The endorsement of the commission of such words in a rider attached to the policy is construed to mean that the liability of the insurance carrier extends to and includes injuries received by a passenger, caused by the negligence of such motor carrier, its 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). Liability of insurance carrier not limited to negligence of carrier only when vehicle in motion. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) nowhere provided that the liability of the insurance carrier be limited to the negligence of the motor common carrier, its 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). No insurance required for carrier’s vehicles while being used outside employment. - A plain reading of the statute will not support a holding that a carrier must provide individual liability coverage for its 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). Liability of insurance carrier on policy is ancillary to that of common carrier. - While the ‘‘cause of action’’ (or statement of a claim, as it is now called) is not on the tort, nevertheless, the tort constitutes the real cause of action, and the liability of the insurance carrier on its policy, issued as required by law, is merely ancillary to that of the common carrier. Addington v. Ohio S.

Express, Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968). Insurance carrier may not contract for less liability than imposed by this section. - Under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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 where the motor common carrier was liable. The statute nowhere remotely expresses or implies that where an insurance carrier undertakes 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 imposes 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). Nothing in former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). No liability of insurer where insured carrier not liable. - It was not the purpose of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) to make an insurance company, which had issued the carrier a policy of indemnity insurance in lieu of a bond, liable where the insured carrier itself was not liable. Robbins v. Liberty Mut. Ins. Co., 113 Ga. App. 393, 148 S.E.2d 172 (1966). Liability probably does not extend to punitive damages. - Liability under former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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).

Bond or Indemnity Insurance (Cont’d)

Interstate Carriers

Duty of issuer of liability surety bond. - The liability surety bond, when not supplanted by an insurance policy, is similar to a motor vehicle liability insurance policy in that it 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 is issued. The issuer of the bond is obligated to provide the minimum no-fault coverage afforded under 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). Liability of insurance carrier limited. - The 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). Bond or indemnity insurance. - The 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, where 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 O.C.G.A. § 40-9-2(5)(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). Notice of cancellation. - When a Form E endorsement filed with the Georgia Public Service Commission provides that an insurance company has issued its insured an insurance policy and the policy lapses before an incident giving rise to liability on the part of the insured and before proper notice of cancellation is given to the Commission, the insurer’s liability to a third party injured by the insured is 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).

Section applicable to interstate carriers. - Subsection (e) of O.C.G.A. § 46-7-12 applies 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). A carrier registered with the Public Service Commission was not exempt from subsection (e) of 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). Section inapplicable to causes arising out of interstate commerce. - Although O.C.G.A. § 46-7-12 authorizes a shipper to bring a direct action against the insurer who provides liability coverage to a motor common carrier, the section does not apply to a cause of action which arises out of interstate commerce. Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 367 S.E.2d 820 (1988). No conflict with congressional regulation of motor carriers. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Federal Aviation Administration Authorization Act does not preempt statute. - The Federal Aviation Administration Authorization Act prohibits a state from enacting or enforcing a law or regulation related to ‘‘a price, route, or service’’ of any motor carrier, but does not invalidate insurance requirements imposed by the statute and Public Service Commission Rule 1-8-1-.01 as the act does not restrict a state’s authority to regulate motor carriers with regard to minimum amounts of financial responsibility re-

lating to insurance requirements. Driskell v. Empire Fire & Marine Ins. Co., 249 Ga. App. 56, 547 S.E.2d 360 (2001). Section designed to protect public. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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). Provision allowing for direct actions against insurance carriers applies to interstate carriers. - A proper interpretation of the provision in former Code 1933, § 68-612

(see O.C.G.A. § 46-7-12) allowing for direct actions against insurance carriers, in conjunction with former Code 1933, § 68-633 (see O.C.G.A. § 46-7-16), was that it applied to interstate carriers as well as intrastate carriers. Kimberly v. Bankers & Shippers Ins. Co., 490 F. Supp. 93 (N.D. Ga. 1980). Persons injured by negligence of carrier are entitled to rely upon required protection of section. - Where persons are injured upon the highways of this state by the negligence of a carrier, they are properly entitled to rely upon the protection required by former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12), 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).

OPINIONS OF THE ATTORNEY GENERAL Purpose of section. - It was the purpose of former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) to protect the public against injury which may be caused by the negligence of the motor common carrier, its servants or agents. 1948-49 Op. Att’y Gen. p. 585. Commission has discretion concerning

bond or indemnity insurance. - Former Code 1933, § 68-612 (see O.C.G.A. § 46-7-12) 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.

RESEARCH REFERENCES C.J.S. - 60 C.J.S., Motor Vehicles, §§ 192 et seq., 226. ALR. - Validity of municipal ordinance requiring indemnity insurance as condition of operating taxicab, 95 ALR 1224. Territorial coverage of motor carrier’s public liability policy required by statute or ordinance as coextensive with area of authorized operation, 154 ALR 520.

Liability of motor carrier for injuries to passengers from accident occasioned by blowout or other failure of tire, 44 ALR2d 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 ALR3d 818.