FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 19, 2020
In the Court of Appeals of Georgia
A20A1377. STUBBS OIL COMPANY, INC. v. PRICE et al.
A20A1396. FEDERATED SERVICE INSURANCE COMPANY v.
PRICE et al.
DILLARD, Presiding Judge.
The underlying facts of this case are tragic. On a dry, warm morning in June
2015, Christopher Mark Hinson—driving a tanker truck for Southern Oil Refinery,
LLC—collided into a compact vehicle traveling at a speed of 79 miles per hour,
killing three people—Beverly McLain Baird, Nicholas Price, and Ricardo Dewberry.
Hinson—an employee of Southern Oil—was on his way to a terminal in Macon to
obtain fuel for a delivery to a retail sales customer at the time of the accident. The
decisions and practices of Hinson and Southern Oil that allegedly lead to this
devastating loss of life are, if true, deeply troubling.1 But this appeal is not about the
actions or inactions of Southern Oil or Hinson. Instead, this Court is asked to consider
whether Stubbs Oil—who hired Southern Oil to deliver fuel products to its retail sales
customers—and its insurer, Federated Service Insurance Company, can be held liable
under federal and state law for Southern Oil and Hinson’s action or inactions. We
answer this question in the negative.2
In bringing their claims, Gloria Jean and Randy Price and Benny and Robin
Baird alleged,3 inter alia, that (1) Hinson’s negligent operation of a fuel tanker truck
resulted in a collision with a compact vehicle driven by Beverly McLain Baird,
killing her and two passengers, Nicholas Price and Ricardo Dewberry; (2) Southern
1
For example, at the time of the accident, the plaintiffs allege that Hinson was
asleep at the wheel and under the influence of illegally prescribed drugs.
2
Oral argument was held in these consolidated cases on June 2, 2020, and is
currently archived on the Court’s website for public viewing. See Court of Appeals
of Georgia, Oral Argument, Case Nos. A20A1377, A20A1396 (June 2, 2020),
available at https://www.gaappeals.us/oav/A20A1377-1396.php.
3
The Prices brought claims individually against, among others, Hinson,
Southern Oil, Stubbs Oil, and Federated, and Gloria Jean also did so on behalf of the
Estate of Nicholas Price. The Bairds likewise filed cross-claims individually against,
among others, Hinson, Southern Oil, Stubbs Oil, and Federated, and Benny also did
so on behalf of the Estate of Beverly Mclain Baird. For ease of reference, we refer to
the Prices, Bairds, and the Estates collectively as “the plaintiffs” throughout this
opinion.
2
Oil and Stubbs Oil were vicariously liable; (3) Stubbs Oil owed a duty to ensure
Southern Oil’s carrier status; and (4) Federated was liable under a statute that allows
for direct actions against an insurer of a motor carrier for hire. Stubbs Oil and
Federated filed motions for summary judgment, arguing that the plaintiffs’ claims
sought to improperly expand liability against them under federal and state law. The
trial court denied these motions, and Stubbs Oil and Federated filed separate
applications for interlocutory appeal, which we granted.
In Case No. A20A1377, Stubbs Oil contends that it cannot be held vicariously
liable to the plaintiffs because (1) it is not Hinson or Southern Oil’s statutory
employer under the Federal Motor Carrier Safety Regulations (“FMCSRs”);4 (2)
Southern Oil was acting as an independent contractor; (3) and it owed no duty to
ensure Southern Oil’s carrier status at the time of the accident. In Case No.
A20A1396, Federated similarly contends that Stubbs Oil cannot be held vicariously
liable to the plaintiffs and, regardless, it is not subject to a direct action under the
statute allowing actions against insurers of a motor carrier for hire. For the reasons
set forth infra, we reverse the trial court’s denial of summary judgment in both cases.
4
See 49 USC § 31101 et seq.; 49 CFR § 391.1 et seq.
3
Viewed in the light most favorable to the plaintiffs (i.e., the nonmovants),5 the
record shows that Stubbs Oil purchases fuel products from large oil companies and
then resells the products to individual retail gas station franchises and agricultural and
governmental entities. In doing so, Stubbs Oil executed what is termed a “Branded
Jobber Contract” with British Petroleum North America (“BP”), which allowed it to
purchase fuel from BP terminals and then resell the fuel to retail BP-authorized gas
stations. Importantly, once fuel was drawn from a BP terminal, Stubbs Oil owned the
fuel. Indeed, the contract between the companies specifically provided that “title and
risk of loss to all Products sold to [Stubbs Oil] under the Contract will pass to [Stubbs
Oil] f.o.b. [Stubbs Oil] Designated Terminals at the time of loading into [Stubbs
Oil’s] transport equipment, including any contract carrier equipment engaged by
[Stubbs Oil].”
Although Stubbs Oil had a valid DOT number and several vehicles capable of
handling small-scale fuel deliveries, those vehicles could not be used to transport fuel
to its retail service station customers. Consequently, to deliver fuel to service stations,
5
See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164)
(2012) (“[A] de novo standard of review applies to an appeal from a grant or denial
of summary judgment, and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation
omitted)).
4
Stubbs Oil hired third-party motor carriers, who owned larger fuel tankers—such as
A&W Oil, Eagle Transport, and Southern Oil. But Stubbs Oil did not have written
contracts with any of those carriers. Rather, the typical procedure for scheduling
deliveries started with Stubbs Oil’s operations manager. This manager would contact
a third-party carrier, inquire if it could make a delivery, and, if so, email the carrier
a loading ticket designating the terminal, supplier, volume of fuel, window of time
for delivery, and destination. Thereafter, Stubbs Oil did not monitor the carrier or
oversee its actions at the fuel terminal beyond providing it with an account number,
which was used to draw fuel. Nor did Stubbs Oil dictate the carrier’s route or method
of delivery. This hands-off approach to fuel deliveries by Stubbs Oil is hardly
surprising, and is typical of any shipper engaging the services of an independent
delivery contractor. So, upon completion of any delivery, the third-party carrier
provided Stubbs Oil with a bill of lading and an invoice, and Stubbs Oil, in turn, paid
for the delivery.
As noted supra, Southern Oil was one of the third-party carriers Stubbs Oil
hired on occasion to transport its fuel to retail service stations . And while Southern
Oil owned a service station, a significant amount of its business entailed transporting
fuel. In doing so, Southern Oil operated under its own DOT number and owned a
5
large fuel tanker, which it used to transport fuel products for its own use and for
clients—including Stubbs Oil.
In January 2014, Hinson began working full-time as a truck driver for Southern
Oil. Typically, when Southern Oil was hired to transport fuel, its dispatcher contacted
Hinson and provided him with instructions for the delivery, including whether the
delivery was to one of Southern Oil’s customers or on behalf of a third-party shipper.
After a delivery was completed, Hinson turned in the bills of lading and fuel sheets
to Southern Oil’s dispatcher.
On June 18, 2015, the day before the accident, Stubbs Oil sent Southern Oil’s
dispatcher an email requesting delivery of fuel to one of its retail gas station
customers. Specifically, the email—entitled “Friday AM Load”—noted: “please
dispatch the attached load to run first out Friday out of Macon. Please confirm load.”
The dispatcher accepted the delivery request and left the necessary instructions for
Hinson. The next morning, June 19, 2015, Hinson retrieved the fuel tanker truck from
Southern Oil’s facility. And while en route to the BP terminal to pick up the fuel,
Hinson’s tanker truck rear-ended a vehicle driven by Beverly Baird, killing her and
two passengers, Nicholas Price and Ricardo Dewberry.
6
Thereafter, Gloria Jean and Randy Price, individually, and Gloria Jean, as
administrator of the Estate of Nicholas Price, filed suit against, among others, Baird’s
estate; Hinson; Southern Oil; Stubbs Oil; and Federated Service. Additionally, Benny
and Robin Baird, individually, and Benny as administrator of the Estate of Beverly
Mclain Baird, filed cross-claims against, among others, Hinson, Southern Oil, Stubbs
Oil, and Federated. Specifically, these plaintiffs alleged that Hinson’s negligent
operation of the fuel tanker truck resulted in a motor-vehicle collision that killed three
people and Southern Oil was vicariously liable as Hinson’s employer. In addition, the
plaintiffs argued that Stubbs Oil was vicariously liable because it acted as Hinson and
Southern Oil’s statutory employer under the FMCSRs and that Federated was liable
under a statute permitting direct actions against the insurer of a motor carrier for hire.
Subsequently, all of the defendants filed answers, and discovery ensued.
Following discovery, Stubbs Oil filed a motion for summary judgment, arguing
that (1) it could not be held vicariously liable to the plaintiffs for Hinson or Southern
Oil’s alleged negligence because it was a shipper, rather than a motor carrier for hire,
and was not a statutory employer under the FMCSRs; (2) Hinson and Southern Oil
were independent contractors under Georgia law; and (3) it owed no duty to ensure
Southern Oil’s carrier status. That same day, Federated also filed a motion for
7
summary judgment, similarly arguing that Stubbs Oil could not be held vicariously
liable and that, regardless, it was not subject to a direct action under the statute
permitting such actions against insurers of a motor carrier for hire. The plaintiffs filed
a response, and the trial court held a hearing on the matter, after which it took the
motions under advisement. And ultimately, the trial court issued a brief order denying
Stubbs Oil and Federated’s motions. In doing so, the trial court found that Southern
Oil could only operate as a private motor carrier, and therefore, Stubbs Oil
was—seemingly by implication—Hinson and Southern Oil’s statutory employer.
Stubbs Oil and Federated subsequently obtained certificates of immediate review and
filed applications for interlocutory appeal, which this Court granted. These
consolidated appeals follow.
It is well established that summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”6 If summary judgment
is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an
appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56
6
OCGA § 9-11-56 (c).
8
(c) have been met.”7 Moreover, a de novo standard of review applies to an appeal
from a grant or denial of summary judgment, and “we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.”8 With these guiding principles in mind, we will address the
enumeration of errors raised in each of the consolidated cases.
Case No. A20A1377
1. Stubbs Oil contends that the trial court erred in finding it could be held
vicariously liable to the plaintiffs as the statutory employer of Hinson and Southern
Oil under the FMCSRs. We agree.
Importantly, as a general rule, the FMCSRs apply to “motor carriers, not to
shippers who engage independent contractors to transport goods.”9 The FMCSRs
define a “for-hire motor carrier” as “a person engaged in the transportation of goods
7
Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).
8
Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164) (2012)
(punctuation omitted); accord Williams v. Johnson, 344 Ga. App. 311, 314 (809 SE2d
839) (2018).
9
Harris v. FedEx Nat’l LTL, Inc., 760 F3d 780, 785 (II) (8th Cir. 2014); see
Camp v. TNT Logistics Corp., 553 F3d 502, 507 (II) (A) (1) (7th Cir. 2009) (Manion,
J.) (holding that FMCSRs apply “[o]nly if [defendant] was functioning as a person
engaged in the transportation of goods or passengers for compensation . . .”
(punctuation omitted)).
9
or passengers for compensation.”10 In contrast, a “shipper” is defined as “a person
who tenders property to a motor carrier or driver of a commercial motor vehicle for
transportation in interstate commerce . . . .”11 So here, because Stubbs Oil had a DOT
number, the plaintiffs claim that it was a motor carrier under the FMCSRs. But the
relevant inquiry is whether Stubbs Oil “acted as a motor carrier in the specific
transaction at issue.”12 And in this case, it is undisputed that Stubbs Oil hired
Southern Oil to transport its fuel products, and that Southern Oil used its own vehicle
and driver in doing so. As a result, Stubbs Oil was acting as a shipper in this
transaction.13
10
49 CFR § 390.5.
11
Id.
12
Harris, 760 F3d at 785 (II) (punctuation omitted); accord Schramm v. Foster,
341 FSupp2d 536, 548 (D. Md. 2004); see Camp, 553 F3d at 507 (II) (A) (1)
(concluding that defendant’s possession of a motor carrier license is not determinative
of the applicability of FMCSRs).
13
See Harris, 760 F3d at 785 (II) (holding that defendant FedEx was acting as
a shipper rather than a motor carrier in the transaction at issue, and therefore,
FMCSRs did not apply); Lyons v. Lancer Ins. Co., 681 F3d 50, 59 (II) (B) (2d Cir.
2012) (“The shipper is the entity that purchases the transportation services of the
carrier.” (punctuation omitted)).
10
Nevertheless, the plaintiffs argue—and the trial court agreed—that Stubbs Oil
can be held liable as the statutory employer of Hinson and Southern Oil under the
FMCSRs. And to be sure, statutory employment is “a theory of vicarious liability
created by the FMCSRs.”14 In relevant part, the FMCSRs define an “employer” as
“any person engaged in a business affecting interstate commerce who owns or leases
a commercial vehicle in connection with that business, or assigns employees to
operate it. . . . .”15 Moreover, in defining “employee,” the FMCSRs specifically
provide that an
[e]mployee means any individual, other than an employer, who is
employed by an employer and who in the course of his or her
employment directly affects commercial motor vehicle safety. Such term
includes a driver of a commercial motor vehicle (including an
independent contractor while in the course of operating a commercial
motor vehicle) . . . .16
14
Clarendon Nat’l Ins. Co. v. Johnson, 293 Ga. App. 103, 108 (1) (a) (666
SE2d 567) (2008) (punctuation omitted); see also Omega Contracting, Inc. v. Torres,
191 SW3d 828, 848 (Tex. App. 2006) (same).
15
49 CFR § 390.5.
16
Id.
11
Suffice it to say, the ownership or leasing of a commercial vehicle is critical to our
analysis. And in construing the foregoing language, we have previously held that the
existence of a lease between the defendant and owner of the vehicle involved in an
accident is the defining element in creating a statutory employment relationship under
the FMCSRs.17 And so, absent evidence of either a written or oral lease between
Hinson or Southern Oil and Stubbs Oil, the latter simply cannot be characterized as
a statutory employer.18
Here, it is undisputed that Stubbs Oil did not own the tanker truck driven by
Hinson and involved in the accident, and thus it was not operating as a motor carrier
at that time. Additionally, there is no evidence of a written lease between Stubbs Oil
and Southern Oil or Hinson regarding that vehicle. Furthermore, despite the
plaintiffs’ arguments, there is similarly no evidence of an oral lease between Southern
17
See Clarendon Nat’l Ins. Co., 293 Ga. App. at 108 (1) (a) (holding that
whether defendant was a statutory employer under the FMCSRs centers around
whether the defendant leased the truck or the services of the driver involved in the
accident).
18
See Clarendon Nat’l Ins. Co., 293 Ga. App. at 108 (1) (a); see also Clark v.
Irvin, 2011 WL 13152866 at 10 (III) (a) (i) (2) (M.D. Ga. 2011) (citing Clarendon
Nat’l Ins. Co. in noting that existence of a lease is required for finding a statutory
employment relationship under the FMCSRs); Caballero v. Archer, 2007 WL 628755
at 5 (W.D. Tx. 2007) (same).
12
Oil and Stubbs Oil. Rather, the evidence shows that (1) Southern Oil and Stubbs Oil
denied the existence of an oral lease; (2) Hinson was directly employed by Southern
Oil; (3) only Southern Oil contacted Hinson and directed his actions regarding
deliveries; and (4) Stubbs Oil exercised no control over Hinson or Southern Oil
beyond prescribing the basic parameters for the delivery. Additionally, the tanker
truck involved in the accident bore the logo and DOT number of Southern Oil, not
Stubbs Oil.
Nevertheless, in its order denying summary judgment, the trial court
acknowledges being persuaded by a FMCSA document,19 obtained by the plaintiffs
from the FMCSA’s Safety and Fitness Electronic Records (“SAFER”) System.20 This
document indicates that, as of March 27, 2016, Southern Oil did not have authority
to operate as motor carrier for hire. And based on this document, the trial court
19
Stubbs Oil raises several admissibility issues with this document, but we
need not address them because, for the reasons noted infra, it has no evidentiary
value.
20
The SAFER System offers, inter alia, company safety data to industry and
the public over the internet. The specific document at issue is characterized as a
“Company Snapshot,” which is a concise electronic record of a company’s
identification, size, and safety rating. See U.S. Department of Transportation, Federal
Motor Carrier Safety Administration, Safety and Fitness Electronic Records (SAFER)
System, safer.fmcsa.dot.gov.
13
seemingly draws an inference that Southern Oil’s lack of authority is evidence of the
existence of a lease between Southern Oil and Stubbs Oil. This is a curious inference
to make because the FMCSA document was created more than nine months after the
accident. As a result, it is difficult to understand how this document provides any
insight into Southern Oil’s authority at the time of the accident. We are also puzzled
by this inference in light of the plaintiffs’ explicit characterization of Southern Oil as
a motor carrier for hire in their own pleadings. In any event, the trial court fails to cite
any statutory or case authority supporting its inference, which we flatly reject.
Moreover, contrary to the implication of the trial court’s order, “an oral lease cannot
be inferred from the fact that [Stubbs Oil] held DOT authority to act as a motor carrier
and could have entered into a lease.”21 Given these circumstances, the trial court erred
in concluding that Stubbs Oil was the statutory employer of Southern Oil and
Hinson.22 The FMCSRs apply to motor carriers, not to shippers engaging the services
21
Clarendon Nat’l Ins. Co. at 109 (1) (a).
22
See id. at 108-09 (1) (a) (holding that trucking company defendant was not
a statutory employer under the FMCSRs of a truck driver involved in accident and,
thus, was not vicariously liable, because there was no evidence that trucking company
entered into a written or oral lease of truck driver’s vehicle or his services); Clark,
2011 WL 13152866 at 11 (III) (a) (i) (2) (holding that defendant was not statutory
employer of driver involved in collision as there was no evidence that defendant
leased vehicle or driver’s services); see also Schramm v. Foster, 341 FSupp2d 536,
14
of independent contractors to deliver fuel products.23 Accordingly, we reverse the trial
court’s denial of Stubbs Oil’s motion for summary judgment as to the plaintiffs’ claim
that it could be held vicariously liable as a statutory employer under the FMCSRs.
2. Stubbs Oil also argues that it cannot be held vicariously liable to the
plaintiffs under a common law theory of respondeat superior because Southern Oil
was acting as its independent contractor. Again, we agree.
OCGA § 51-2-4 provides that “[a]n employer generally is not responsible for
torts committed by his employee when the employee exercises an independent
business and in it is not subject to the immediate direction and control of the
549 (D. Md. 2004) (holding that the “focus of the court’s inquiry [in a FMCSRs case]
must be on . . . the specific transaction . . . and the nature of the relationship between
[the relevant parties.]”); Cf. PN Express, Inc. v. Zegel, 304 Ga. App. 672, 673-74 (1)
(697 SE2d 226) (2010) (holding that defendant was a statutory employer of driver
involved in subject accident, under the FMCSRs, in light of driver’s admission that
the lease existed; the driver’s constant daily telephone contact with defendant’s
manager during the course of trip and after the collision; and the fact that the driver’s
truck, although owned by driver, carried the defendant’s and DOT number).
23
See Harris, 760 F3d 780, 785 (8th Cir. 2014) (holding that “the FMCSR
applies to motor carriers, not to shippers who engage independent contractors to
transport goods.”); Caballero, 2007 WL 628755 at 5 (same); see also Camp, 553 F3d
502, 507 (7th Cir. 2009) (holding that the FMCSRs only apply when an entity is
“functioning as ‘a person engaged in the transportation of goods or passengers for
compensation[.]’”).
15
employer.” Indeed, in order for a plaintiff to overcome this general rule and impose
liability, there needs to be a showing that
the employer must have retained at least some degree of control over the
manner in which the work was done. It is not enough that he has merely
a general right to order the work stopped or resumed, to inspect its
progress or to receive reports, or to prescribe alterations and deviations.
Such a general right is usually reserved to employers, but it does not
mean that the contractor is controlled as to his methods of work, as to
operative details. There must be such a retention of a right of
supervision that the contractor is not entirely free to do the work in his
own way.24
Put more succinctly, in the absence of evidence of actual control, the test
distinguishing an employee from an independent contractor is whether “the employer
assumed the right to control the time, manner and method of executing the work, as
distinguished from the right merely to require certain definite results in conformity
to the contract.”25
24
Clarendon Nat’l Ins. Co., 293 Ga. App. at 109-10 (1) (b) (punctuation
omitted).
25
Larmon v. CCR Enters., 285 Ga. App. 594, 596 (647 SE2d 306) (2007)
(punctuation omitted); accord Allrid v. Emory Univ., 249 Ga. 35, 40 (2) (285 SE2d
521) (1982); see Ward v. DirecTV LLC, 342 Ga. App. 69, 70 (801 SE2d 110) (2017)
(“The right to control the manner and method means the right to tell the employee
how he shall go about doing the job in every detail, including what tools he shall use
16
In this matter, it is undisputed that Stubbs Oil and Southern Oil are distinct and
separate companies, and there is no evidence Stubbs Oil exercised the level of control
over Southern Oil or Hinson necessary to saddle it with liability for their alleged
negligence. As discussed supra, Stubbs Oil merely hired Southern Oil to transport its
fuel products to a retail service station, but had no input as to the driver or the vehicle
Southern Oil would use to complete that task. And while Stubbs Oil requested that
the pick-up and delivery be completed during a particular window of time, as is the
case with most delivery requests, it did not monitor Southern Oil or Hinson or oversee
their actions, nor did it dictate Hinson’s route. Consequently, the evidence shows that
Stubbs Oil only retained the right to require results in conformity with the delivery
request, and Southern Oil and its driver Hinson retained the right to perform the work
and what procedures he shall follow.”).
17
by their own means, method, and manner.26 Needless to say, the trial court erred in
concluding otherwise.
3. Stubbs Oil further contends that the trial court erred in denying its motion
for summary judgment as to the plaintiffs’ claim that it owed a duty to ensure
Southern Oil’s carrier status. Once again, we agree.
Although not entirely clear from its order, the trial court seems to imply that
Southern Oil’s alleged lack of authority to operate as a motor carrier for hire creates
a genuine issue of material fact as to whether Stubbs Oil failed to fulfill a duty to
ensure Southern Oil’s carrier’s status. But again, we are unpersuaded by the question-
begging inherent in the trial court’s assumption that a document pertaining to
Southern Oil’s carrier status nine months after the accident offers any insight as to
26
See Clarendon Nat’l Ins. Co. at 109-10 (1) (b) (holding that defendant
trucking company could not be held vicariously liable for independent sales agent’s
hiring of truck driver who caused the subject accident as defendant exercised no
control over the day-to-day operations of agent); McLaine v. McLeod, 291 Ga. App.
335, 340-41 (1) (661 SE2d 695) (2008) (holding that freight broker not liable for
negligence of motor carrier and its employee driver because evidence showed broker
exercised no control over carrier and driver, and thus, they were independent
contractors); Larmon, 285 Ga. App. at 596 (concluding that even though defendant
required that bus be delivered at a certain time and that drivers must conform to any
applicable I.C.C. requirements, driver was nonetheless an independent contractor
given that the manner and method of performing the delivery were left to the driver’s
discretion).
18
Stubbs Oil’s duties. And to the extent the plaintiffs argue that Stubbs Oil should be
liable for negligently hiring Southern Oil “because the act of driving a tractor-trailer
is inherently dangerous, they have failed to cite to any Georgia authority to support
their proposition.”27 Accordingly, the trial court erred in denying summary judgment
as to this claim.
Case No. A20A1396
4. Federated similarly contends that Stubbs Oil cannot be held vicariously
liable to the plaintiffs and argues that, regardless, it is not subject to a direct action
under the statute allowing such actions against insurers of a motor carrier for hire. We
agree.
OCGA § 40-1-112 (a) in part provides:
27
McLaine, 291 Ga. App. at 342 (3); see De Bord v. Proctor & Gamble Distrib.
Co., 58 FSupp. 157, 160 (N.D. Ga. 1943) (noting that “[i]t has been held that a
shipper has no duty to ascertain whether a motor carrier has complied with the State
Motor Carrier Act, and consequently the fact that the carrier had failed to comply
with the provisions of the Motor Carrier Act before proceeding to haul as an
independent contractor would not render the shipper liable”); see also Clarendon
Nat’l Ins. Co. 293 Ga. App. at 109-10 (1) (b) (holding that defendant trucking
company could not be held vicariously liable for sales agent’s hiring of truck driver
who caused the subject accident given that sales agent and driver were independent
contractors).
19
No motor carrier of household goods or property or passengers
shall be issued a motor carrier certificate unless there is filed with the
department a certificate of insurance for such applicant or holder on
forms prescribed by the commissioner evidencing a policy of indemnity
insurance by an insurance company licensed to do business in this state,
which policy must provide for the protection, in case of passenger
vehicles, of passengers and the public against injury proximately caused
by the negligence of such motor carrier, its servants, or its agents; and,
in the case of vehicles transporting household goods, to secure the
owner or person entitled to recover against loss or damage to such
household goods for which the motor common carrier may be legally
liable.
And subsection (c) of this statute further provides: “It shall be permissible under this
part for any person having a cause of action arising under this part to join in the same
action the motor carrier and the insurance carrier, whether arising in tort or contract.”
As we have previously explained,
[t]he purpose of permitting joinder of the insurance company in a claim
against a common carrier is to further the policy of the Motor Carrier
Act, that is, to protect the public against injuries caused by the motor
carrier’s negligence. The [codified] intent of this [s]tate’s motor carrier
laws is that the insurer is to stand in the shoes of the motor carrier and
20
be liable in any instance of negligence where the motor carrier is
liable.28
Importantly, the direct-action statute is “in derogation of common law, and its terms
require strict compliance.”29
In this case, the plaintiffs sued Federated, claiming that it is a proper defendant
as the insurer of Stubbs Oil, which the plaintiffs assert is a motor carrier for hire. But
as we held in Division 1, supra, in the transaction at issue, Stubbs Oil was acting as
a shipper rather than a motor carrier for hire or a statutory employer.30 In light of this
holding, the plaintiffs have no cause of action under OCGA § 40-1-112 (c), and
28
Mornay v. Nat’l Union Fire Ins. Co. of Pittsburgh, 331 Ga. App. 112, 113
(769 SE2d 807) (2015) (punctuation omitted).
29
Id.
30
See supra notes 10 and 15.
21
Federated is not subject to a direct action under that statute.31 As a result, the trial
court also erred in denying Federated’s motion for summary judgment.
For all these reasons, we reverse the trial court’s order denying summary
judgment in both Case No. A20A1377 and Case No. A20A1396.
Judgment reversed in both cases. Rickman and Brown, JJ., concur.
31
See Nat’l Union Fire Ins. Co. v. Sorrow, 202 Ga. App. 517, 518 (414 SE2d
731) (1992) (holding that vehicle involved in accident was neither “motor common
carrier” nor “motor contract carrier” as those terms were used predecessor statute to
OCGA § 40-1-112 (The direct action statute in effect at the time of the accident was
codified at former OCGA § 46-7-12. See Ga. L. 2012, p. 580, § 16), providing for
direct prejudgment actions against liability insurers of same given that vehicle was
used exclusively by owner to transport its own products, was never held out for hire
to the public, and was not used or hired by the public for transportation of either
goods or people); Wolverine Ins. Co. v. Strickland, 116 Ga. App. 62, 62-63 (156
SE2d 497) (1967) (concluding that the insurer was not directly liable under direct
action statute because there was no evidence that the insured vehicle was being driven
as a motor carrier at the time of the injury).
22