dissenting.
I respectfully dissent from the decision of the majority, which relied upon Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613 (472 SE2d 325) (1996), which was wrongly decided. Southern Gen. involved the same issues as the present case. Each of the cases arose out of a collision between a log truck and trailer insured by Southern General and a vehicle driven by another. In each case, the plaintiff joined Southern General in its action against the tortfeasor under the authority of OCGA § 46-7-12 (e). Summary judgment was improper in this case and in Southern Gen. because an insurance company cannot create a defense to being named a party in a direct action pursuant to OCGA § 46-7-12 (e) by the simple expedient of failing to satisfy its duty to file an appropriate certificate with the PSC regarding a non-exempt motor contract carrier to which the insurance company has extended coverage.
The majority in each case holds that a plaintiff, in order to bring a direct action, must prove a bond or an insurance policy was filed with the PSC and approved by it. The majorities further hold that this rule applies even where the insurance company knows or should know that the motor carrier is subject to PSC regulation, as it is the motor carrier and not the insurance company, who has the responsibility of filing a bond or insurance policy with the PSC.
Indeed, as a result of this holding, the majorities did not even address the issue in either case of whether the defendant trucker was exempt from PSC regulation as a hauler of agricultural products under OCGA § 46-1-1 (9) (C) (x) (amended OCGA § 46-1-1 (7) (Q). Recognizing the inequity of its holding, however, the majority in the present case contends that it is up to the legislature to close this loophole, which allows an insurance company to defeat a plaintiff’s statutory right to add them as a party in a direct action, by failing to perform their legally imposed duty to file a Form E, Certificate of Insurance. I believe, however, that the loophole which causes the majority’s concern does not exist.
*315At its core, the majority’s opinion relies upon the view expressed in Southern Gen., that an insurance company has no duty to make filings with the PSC, focusing specifically on the filing of bonds or insurance policies. This focus is too narrow. Lucia Ramey, Director of Compliance & Safety of the Transportation Division of the Georgia Public Service Commission, testified that, since 1979, the PSC has neither approved nor accepted for filing policies of insurance. Instead, prior to issuing a certificate to a motor common carrier or motor contract carrier, the PSC requires the insurance company to file a Certificate of Insurance, designated “Form E.” PSC Rules 1-8-1-.01 and 1-8-1-.07. Form E, which must be signed by an authorized representative of the insurance company, includes a certification by the insurance company that a policy has been issued, an agreement by the insurance company to file duplicates of the insurance policy if requested, and an agreement by the insurance company to give the PSC notice if the policy is cancelled. Clearly, then, Form E places the onus for filing on the insurance company, not the motor carrier. The majority in this case, however, contends that the logistical requirements imposed by the PSC with regard to Form E do not resolve the question of the insurer’s obligation to file such form. However, , the demands for present and future information and compliance by the insurance company, which the majority discounts as merely logistical, are nonetheless requirements of the insurance company, not requests. As such, there should be no question that the insurance company would be obligated to file its Form E answer which is required by the PSC.
Thus, it cannot accurately be said that an insurance company has no duty to make filings with the PSC. In fact, just the opposite is true. Therefore, if an insurance carrier knows or should know that a motor contract carrier to which it has issued a policy should be registered with the PSC and is not exempt therefrom, it does have a duty to file an appropriately completed Form E. Furthermore, Ross v. Stephens, 269 Ga. 266 (496 SE2d 705) (1998), which is cited by the majority, does not negate any duty of an insurer to file with the PSC. In addition, it must be noted that in Ross, the insurance company, not the motor common carrier, filed the certificate of insurance and Form F with the PSC.
Accordingly, it becomes not only necessary, but pivotal, in Southern Gen., in this case, and in others like it, to determine whether the motor carrier was exempt from the registration requirements of the PSC, thereby relieving the insurance company of its duty to file Form E.
OCGA § 46-1-1 (9) (A) defines a motor contract carrier as “every person, except common carriers, owning, controlling, operating, or managing any motor propelled vehicle . . . used in the business of *316transporting persons or property for hire over any public highway in this state and not operated exclusively within the corporate limits of any city.” In turn, OCGA § 46-1-1 (6) defines “for hire” as “an activity wherein for compensation a motor vehicle and driver are furnished to a person by another person, acting directly or knowingly and willfully acting with another to provide the combined service of the vehicle and driver, and includes every person acting in concert with, under the control of, or under common control with a motor carrier who shall offer to furnish transportation for compensation.”
The Georgia Code exempts certain carriers from the categories of motor contract carrier and motor common carrier. OCGA § 46-1-1 (9) (C) (x) exempts “[m]otor vehicles engaged exclusively in the transportation of agricultural or dairy products, or both, between farm, market, gin, warehouse, or mill, whether such motor vehicle is owned by the owner or producer of such agricultural or dairy products or not, so long as the title remains in the producer. . . . [T]he term 'agricultural products’ includes . . . lumber . . . and timber or logs being hauled by the owner thereof or [the owner’s] agents or employees between forest and mill or primary place of manufacture.” The burden of proof as to whether this exemption is applicable in a given case lies with the party claiming it. Ga. Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 874 (1) (305 SE2d 611) (1983).
Summary judgment in this case was clearly improper because Southern General failed to meet its burden of establishing its insured’s entitlement to this exemption, thereby alleviating itself from a duty to file Form E. Southern General failed to prove that Murray was engaged exclusively in the transportation of timber, that title to such timber remained in its producer, and that Murray was acting as an agent or employee of the owner of the timber, each of which was necessary in order to establish an entitlement to an exemption.
Southern General contends, however, that the exemption from classification as a motor common or motor contract carrier set out in OCGA § 46-1-1 (9) (C) (xi) for “unmanufactured agricultural products” should be applicable to Murray. Southern General argues that the term “unmanufactured agricultural products” used in division (xi) should include logs and timber, notwithstanding the fact that logs and timber are not specified therein.
This issue has been decided adversely to Southern General by this Court. Southern General’s “contentions are fatally flawed. . . . [H]ad the legislature intended [logs and timber] to be included, they would have specifically listed [them] within the terms of the exemption as they did in division (x). Furthermore, a statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts. Division (x) contains specific *317restrictions which must be met by carriers of [timber and logs] in order to qualify for the exemption. These restrictions are not contained in the exemption provided in division (xi). If [logs and timber were] included within the term ‘unmanufactured agricultural products’ under division (xi), the restrictions of division (x) would be rendered meaningless, which is contrary to the rules of statutory construction.” (Citations and punctuation omitted.) Stewart v. Liberty Mut. Ins. Co., 221 Ga. App. 813, 814 (472 SE2d 704) (1996). Accordingly, this exemption does not apply to Murray, and Southern General is not relieved of its duty to file a Form E with the PSC.
Decided March 18, 1998It should be remembered that “[t]he purpose of permitting joinder of the [insurance [c]ompany 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.” Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992). We should not allow this intended protection to be diminished by allowing an insurance company to avoid direct actions by failing to satisfy its duty to file an appropriate certificate with the PSC regarding a non-exempt motor contract carrier to which the insurance company has extended coverage.
In Southern Gen., this Court ignored the filing by insurance carriers of Form E pursuant to the requirements of PSC regulations which imposed such a duty and the fact that bonds and policies have not been filed with the PSC since 1979. It is inappropriate for this Court to defeat the statutory right given by the legislature to the public to join insurance carriers under the facts of this case, by a narrow reading of OCGA § 46-7-58 (e) and the ignoring of applicable PSC regulations and of the practice of the PSC in such matters since 1979. All applicable statutes and rules must be read together to determine the intention of the regulations.
It is little wonder that no amendment to the statute has ever been sought, as plaintiffs rarely have but a single case, and it works totally to the advantage of insurance carriers in its present state under the erroneous holding of this Court.
To the extent that it purports that an insurer who knows or should know that its insured is a motor contract carrier, I would overrule Southern Gen. and reverse the trial court’s holding and the majority’s affirmance thereof in the present case, each of which was controlled by said case.
I am authorized to state that Presiding Judge McMurray joins in this dissent.
Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Preyesh K. Maniklal, Terrance, Patrick, Leiden & Associates, Terry Leiden, Zane P. Leiden, for appellants. Glover & Blount, Percy J. Blount, Michael J. Moses, for appellee.