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 Ga. App. LEXIS 164 (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 Ga. App. LEXIS 971 (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 Ga. App. LEXIS 2037 (1987), cert. denied, 183 Ga. App. 905 (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 86 40-1-112 IDENTIFICATION & REGULATION 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 Ga. LEXIS 1254 (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 and 46-7-58. National Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 414 S.E.2d 731, 1992 Ga. App. LEXIS 56 (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 Ga. App. LEXIS 1438 (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 Ga. App. LEXIS 2 (1936) (decided under Ga. L. 1929, pp. 293, 297, § 5). 40-1-112 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, 1967 U.S. App. LEXIS 6172 (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 Ga. App. LEXIS 263 (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 Ga. App. LEXIS 1955 (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 Ga. LEXIS 898 (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 87 40-1-112 MOTOR VEHICLES & TRAFFIC Pleadings and Practice (Cont’d) 3. Joinder Issues (Cont’d) 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 Ga. App. LEXIS 723 (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 Ga. App. LEXIS 2917 (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 Ga. App. LEXIS 2037 (1987), cert. denied, 183 Ga. App. 905 (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 40-1-112 in another state. Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701, 1993 Ga. App. LEXIS 426 (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 Ga. App. LEXIS 426 (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 Ga. LEXIS 337 (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, 2015 U.S. Dist. LEXIS 3742 (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., 220 Ga. App. 866, 470 S.E.2d 446, 1996 Ga. App. LEXIS 236 (1996), cert. denied, 88 40-1-112 IDENTIFICATION & REGULATION No. S96C1241, 1996 Ga. LEXIS 805 (Ga. May 31, 1996), cert. denied, No. S96C1208, 1996 Ga. LEXIS 807 (Ga. May 31, 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 Ga. App. LEXIS 206 (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 Ga. App. LEXIS 1650 (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 Ga. App. LEXIS 1628 (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 Ga. App. LEXIS 894 (1993) (decided under former O.C.G.A. § 46-7-12). When joinder of parties not permissible. — In the absence of 40-1-112 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 Ga. LEXIS 555 (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, 1967 U.S. App. LEXIS 6172 (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, 1943 U.S. Dist. LEXIS 2461 (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 Ga. App. LEXIS 792 (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 89 40-1-112 MOTOR VEHICLES & TRAFFIC Pleadings and Practice (Cont’d) 3. Joinder Issues (Cont’d) 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 Ga. App. LEXIS 725, 1948 Ga. App. LEXIS 726 (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 Ga. App. LEXIS 733 (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 Ga. App. LEXIS 345 (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 Ga. App. LEXIS 1955 (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 Ga. App. LEXIS 40-1-112 1996 (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 Ga. App. LEXIS 577 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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, 90 40-1-112 IDENTIFICATION & REGULATION 1985 Ga. App. LEXIS 2153 (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, 1976 U.S. App. LEXIS 12400 (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 Ga. App. LEXIS 803 (2004), cert. denied, No. S04C1893, 2004 Ga. LEXIS 862 (Ga. Sept. 27, 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 Ga. App. LEXIS 718 (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 40-1-112 the public injured by the carrier’s negligence. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585, 1983 Ga. App. LEXIS 1996 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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 Ga. App. LEXIS 1079 (1992), cert. denied, No. S92C1416, 1992 Ga. LEXIS 869 (Ga. Oct. 8, 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 Ga. App. LEXIS 225 (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 91 40-1-112 MOTOR VEHICLES & TRAFFIC Bond or Indemnity Insurance (Cont’d) 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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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 Ga. App. LEXIS 150 (1933); LaHatte v. Walton, 53 Ga. App. 6, 184 S.E. 742, 1936 Ga. App. LEXIS 2 (1936) (decided under former Code 1933, § 68-612). According to the language and patent intendment of former Code 1933, § 68612, 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 American Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24, 1936 Ga. LEXIS 208 (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 40-1-112 sustaining of actionable injury was, under the statute, the only condition precedent to an action on the policy. Great American Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24, 1936 Ga. LEXIS 208 (1936); Shapiro v. Aetna Cas. & Sur. Co., 234 F. Supp. 41, 1963 U.S. Dist. LEXIS 6749 (N.D. Ga. 1963), aff’d, 337 F.2d 237, 1964 U.S. App. LEXIS 4236 (5th Cir. 1964); Spicer v. American Home Assurance Co., 292 F. Supp. 27, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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 Ga. App. LEXIS 2917 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968) (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 92 40-1-112 IDENTIFICATION & REGULATION 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, 1936 Ga. App. LEXIS 16, aff’d, 183 Ga. 233, 188 S.E. 24, 1936 Ga. LEXIS 208 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). Obligations of former Code 1933, § 68-612 clearly superseded any policy provision. Spicer v. American Home Assurance Co., 292 F. Supp. 27, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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 40-1-112 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, 1936 Ga. App. LEXIS 16, aff’d, 183 Ga. 233, 188 S.E. 24, 1936 Ga. LEXIS 208 (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, 1936 Ga. App. LEXIS 16, aff’d, 183 Ga. 233, 188 S.E. 24, 1936 Ga. LEXIS 208 (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 Ga. App. LEXIS 345 (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 Ga. App. LEXIS 2153 (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 93 40-1-112 MOTOR VEHICLES & TRAFFIC Bond or Indemnity Insurance (Cont’d) 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 Ga. App. LEXIS 294 (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 Ga. App. LEXIS 905 (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 Ga. App. LEXIS 422 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968). 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 40-1-112 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 Ga. App. LEXIS 225 (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 Ga. App. LEXIS 225 (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, 1984 U.S. App. LEXIS 21431 (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 Ga. 94 40-1-112 IDENTIFICATION & REGULATION App. LEXIS 1521 (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 Ga. App. LEXIS 225 (1943) (decided under former Code 1933, § 68-612). Nothing in former Code 1933, § 68612 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 Ga. App. LEXIS 2917 (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 Ga. App. LEXIS 1077 (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 40-1-112 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 Ga. App. LEXIS 359, aff’d, 284 Ga. 624, 669 S.E.2d 141, 2008 Ga. LEXIS 857 (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, 1967 U.S. Dist. LEXIS 9243 (N.D. Ga. 1967), aff’d, 402 F.2d 988, 1968 U.S. App. LEXIS 4908 (5th Cir. 1968) (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, 1992 Ga. App. LEXIS 192 (1992), cert. denied, No. S92C0669, 1992 Ga. LEXIS 309 (Ga. Apr. 6, 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, 95 40-1-112 MOTOR VEHICLES & TRAFFIC Bond or Indemnity Insurance (Cont’d) 1998 Ga. LEXIS 284 (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. v. Canal Ins. Co., 234 Ga. App. 235, 507 S.E.2d 144, 1998 Ga. App. LEXIS 1125 (1998), cert. denied, No. S99C0026, 1999 Ga. LEXIS 85 (Ga. Jan. 15, 1999), cert. denied, No. S99C0030, 1999 Ga. LEXIS 84 (Ga. Jan. 15, 1999) (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 Ga. LEXIS 1004 (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 40-1-112 certiﬁcate of insurance or a notice of cancellation with the DMVS. Kolencik v. Stratford Ins. Co., No. 1:05-cv-0007-GET, 2005 U.S. Dist. LEXIS 34956 (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 Ga. App. LEXIS 586 (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 Ga. App. LEXIS 802 (1994), cert. denied, No. S94C1706, 1994 Ga. LEXIS 1135 (Ga. Oct. 28, 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. § 467-12 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 Ga. App. LEXIS 227 (1997), cert. denied, No. 96 40-1-112 IDENTIFICATION & REGULATION S97C0954, 1997 Ga. LEXIS 567 (Ga. May 30, 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 Ga. App. LEXIS 422 (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, 1942 U.S. App. LEXIS 4863 (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 Rule 1-8-1-.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 Ga. App. 40-1-112 LEXIS 393 (2001), cert. denied, No. S01C1101, 2001 Ga. LEXIS 712 (Ga. Sept. 7, 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, 1943 U.S. Dist. LEXIS 2461 (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, 1980 U.S. Dist. LEXIS 13109 (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, 1942 U.S. App. LEXIS 4863 (5th Cir. 1942) (decided under former Code 1933, § 68-612).