Lockhart v. Southern General Insurance , 231 Ga. App. 311 ( 1998 )

Pope, Presiding Judge.

The sole issue before us is whether the superior court properly granted summary judgment to Southern General Insurance Company in this direct action pursuant to OCGA § 46-7-58 (e).¹ Because we are constrained both by prior cases and the statutory scheme to so rule, we conclude that the superior court’s decision was proper.

This lawsuit arose from a December 22, 1994 accident in which Glenn Lockhart’s automobile struck a tractor-trailer driven by Richard Murray. On April 4, 1995, Lockhart and his wife Myra sued Murray and Southern General Insurance Company. The Lockharts alleged that Murray was a motor common carrier and that, because Southern General had issued liability insurance to Murray, the insurer was liable pursuant to OCGA § 46-7-58 (e). In their answers to the complaint and to discovery, both Murray and Southern General admitted that Murray had filed neither a bond nor an insurance policy in lieu of bond with the Public Service Commission (PSC). Both Murray and Southern General asserted that Murray was exempt from registration with the PSC because he hauled unmanufactured forest products.

Southern General filed a motion for summary judgment, arguing that it was not liable because the Lockharts failed to prove the essential elements of their right to proceed directly. Specifically, Southern General contended that the vehicle which Murray was driving had not been registered with the PSC, nor had a bond or a liability insurance policy in lieu of bond been filed with the PSC at the time of the accident. With its motion Southern General filed the affidavit of Lucia Ramey, the Director of Compliance & Safety of the Transportation Division of the PSC, in which she confirmed that her records indicated that Murray was not registered with the PSC as a motor common or motor contract carrier, and that no certificate of insurance had been filed indicating that Southern General Insurance Company was the insurance carrier for Murray.

In response to the motion, the Lockharts asserted that Murray was not exempt from registering with the PSC and that Southern General had subjected itself to OCGA § 46-7-58 (e) by issuing an insurance policy to Murray, who it was aware was a non-exempt motor contract carrier. The Lockharts filed a second affidavit of PSC official Ramey, stating that to satisfy the requirements of OCGA §§ 46-7-12 (c) and 46-7-58 (c), the PSC required the insurer of the motor carrier to file a certain “Form E” or certificate of insurance.

This case was stayed pending the resolution of Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613 (472 SE2d 325) (1996), in which Murray Trucking, Southern General, and a virtually identical legal question were involved. After this Court issued its decision in Waymond, Southern General was granted summary judgment in this case.

Because the facts before the court in Waymond were virtually identical to those here, the resolution of this case is — as the superior court correctly determined — controlled by that case. In Waymond, this Court concluded that in order to maintain a direct action against the insurer under OCGA § 46-7-12 (e) or § 46-7-58 (e), a plaintiff must prove that — in lieu of bond — an insurance policy was filed with and approved by the PSC. The court further determined that the motor carrier, not the insurer, had the obligation of filing the insurance policy with the PSC. This Court reached the same conclusion in Canal Ins. Co. v. Farmer, 222 Ga. App. 539 (474 SE2d 732) (1996).

Here, as in Waymond and Farmer the PSC records reflected that neither a bond nor an insurance policy was filed with, nor approved by, the PSC. Furthermore, it was undisputed that Murray was not registered with the PSC as a motor common or motor contract carrier. In the absence of this evidence, this Court has concluded previously that no direct action against Southern General is allowable. See also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987).

The Lockharts’ argument that Southern General is liable because it was aware that Murray Trucking was subject to PSC regulation is without merit.² This Court addressed this argument in Waymond and concluded that whether Southern General was aware of Murray Trucking being subject to PSC regulation had no bearing on the insurer’s liability, stating: “[assuming arguendo, however, that Murray Trucking was subject to PSC regulation and that Southern General had knowledge of this fact, neither the direct action statute nor Glenn McClendon provides an exception when the insurer had or should have had such knowledge. We find nothing in this Court’s holding in Glenn McClendon that authorizes an exception to the rule that an essential element of proof is evidence of filing with and approval of a policy by the PSC. Waymond is attempting to impose a responsibility on Southern General not provided for by the statute, a statute that must be strictly construed. This responsibility of filing a bond or insurance policy in lieu of bond is with the motor carrier, not the insurer. OCGA §§ 46-7-53 (a); 46-7-58 (a).” Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. at 615-616. The Lockharts’ argument that the evidence regarding the PSC rules alters this conclusion is without merit. Contrary to the position taken by the dissent, the logistical requirements the PSC has regarding the Form E do not resolve the question of whether the insurer’s obligation to file the form ever arises in the first place.

Although the fact that there is no statutory obligation for the insurer to file proof of the policy may partially subvert the statute’s purpose, see Canal Ins. Co. v. Farmer, 222 Ga. App. at 541 (Pope, P. J., concurring specially), it is the role of the legislature — not of this Court — to remedy any such loophole. The present statutory scheme simply does not require an insurer to file a policy for a motor carrier which is not registered with the PSC.

Our Supreme Court illuminated this policy in the recently decided Ross v. Stephens, 269 Ga. 266 (496 SE2d 705) (1998). In Ross, the court resolved that when a motor common carrier’s vehicle was not specifically described in the insurance policy, the PSC Form F regarding the statutory minimum coverage controlled the amount of coverage, regardless of the amount of coverage provided for in the individual policy. In so deciding, the court stated: “A motor [contract] carrier may not operate in Georgia without obtaining from the PSC a certificate of public convenience and necessity [(OCGA § 46-7-53)], and a certificate is not issued unless the applicant gives and maintains bond, with adequate security ‘for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents.’ [OCGA § 46-7-58 (a).] In lieu of bond, the certificate holder may file a policy of indemnity insurance which is approved by the commission and substantially conforms to all the statutory provisions relating to bonds [(§ 46-7-58 (c))], or the commission may permit a motor [contract] carrier to self-insure. [OCGA § 46-7-58 (d).] Whatever means the [contract] carrier chooses to evidence its potential financial responsibility to the motoring public, the bond, insurance or self-insured plan ‘is a direct and primary obligation’ to any person who sustains actionable injury or loss as a result of the negligence of the [contract] carrier or its agents. [Cit.]” Ross v. Stephens, 269 Ga. 266-267. Under the present statutory scheme, it is not the role of the insurer to register the contract carrier with the PSC, nor is it the insurer’s responsibility to file the insurance policy. That obligation is the carrier’s.

Moreover, in order to take the position of the dissent, it would be necessary to overrule not only Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, but also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508; Canal Ins. Co. v. Farmer, 222 Ga. App. 539; and the recently decided Caudill v. Strickland, 230 Ga. App. 644 (498 SE2d 81) (1998).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson, Smith, Ruffin and Eldridge, JJ, concur. McMurray, P. J., and Blackburn, J., dissent.

1 OCGA § 46-7-12 (e) provides for direct actions against motor common carriers; § 46-7-58 (e) provides equivalently for direct actions against motor contract carriers. Although in the court below the parties interchanged the statutes, we will refer consistently to the provisions regarding motor contract carriers (OCGA § 46-7-50 et seq.).

2 And, contrary to the Lockharts’ contentions, the Court made no determination in Southern Gen. Ins. Co. v. Waymond regarding whether Murray was exempt from regulation under OCGA § 46-1-1 (7) (C) (x) or (xi) (now designated as OCGA § 46-1-1 (9) (Q). In this regard, see Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582 (474 SE2d 745) (1996), in which this Court concluded that because there was no dispute that the insured was acting as a timber hauler, no direct action could be maintained against it. Because it is not necessary to our holding here, we do not address the Lockharts’ argument that Smith did not properly consider all of the requirements of OCGA § 46-1-1 (7) (C) (x).