FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, 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
March 9, 2022
In the Court of Appeals of Georgia
A21A1752. STILLWELL v. TOPA INSURANCE COMPANY.
DILLARD, Presiding Judge.
Following injuries sustained in an automobile collision with a dump truck
driven by Curtis Jones and owned by Curtis Jones Trucking (“CJ Trucking”),
Keondrae Stillwell brought a direct action against Topa Insurance Co., the alleged
motor-carrier insurer of the truck at the time of the accident. In her complaint,
Stillwell argued that—under Georgia’s Motor Carrier Act (GMCA)1—Topa was
responsible for any judgment she obtained against Jones and CJ Trucking. Stillwell
now appeals the trial court’s dismissal of her action against Topa, arguing the court
erred in finding that it lacked subject-matter jurisdiction over the case and relying on
erroneous factual findings. For the reasons set forth infra, we reverse.
1
See OCGA § 40-1-50 et seq.
The record shows that on August 18, 2018, Jones—who was driving a dump
truck owned by CJ Trucking—collided head on with Stillwell’s car, inflicting on her
serious and permanent injuries. On February 9, 2018, Topa issued CJ Trucking a one-
year commercial insurance policy for the dump truck. Stillwell’s complaint alleged
that when Topa evaluated Jones’s application and issued the policy, it was aware CJ
Trucking was operating as a motor carrier (despite the application indicating
otherwise). She contended, inter alia, the policy or underwriting file contained a
photograph of the dump truck—which displayed a Department of Transportation
number—and that Topa knew CJ Trucking was registered as a motor carrier with the
Federal Motor Carrier Safety Administration. Even so, it is undisputed Topa never
made any of the required regulatory filings for insurance companies under the GMCA
because it accepted CJ Trucking’s representation that it was not a motor carrier.
On August 20, 2020, Stillwell filed a complaint, asserting, inter alia, a
negligence claim against Jones2 and, under Georgia’s direct-action statutes,3 seeking
damages directly from Topa. In doing so, Stillwell argued Topa is liable for any
2
Stillwell also sued several corporate entities and other individuals, but none
of them are involved in this appeal.
3
See OCGA §§ 40-1-112 and 40-2-140.
2
judgment she ultimately obtains against Jones or CJ Trucking under the GMCA.4
Topa answered the complaint, denying many of its allegations and asserting numerous
affirmative defenses. And on the same day, Topa filed an OCGA § 9-11-12 (b) (1)
motion to dismiss Stillwell’s complaint for lack of subject-matter jurisdiction.
Specifically, Topa claimed Stillwell did not have standing to file a direct action under
OCGA §§ 40-1-112 and 40-2-140 because (1) Jones’s policy was not a motor-carrier
policy—and thus, it was not subject to liability under the GMCA; and (2) the relevant
insurance policy was cancelled for non-payment on July 6, 2018 (approximately two
months before the accident). Discovery ensued, and following a hearing on the matter,
the trial court granted Topa’s motion to dismiss for lack of subject-matter jurisdiction.
This appeal by Stillwell follows.
A motion brought under OCGA § 9-11-12 (b) (1) “asserts the defense of lack
of jurisdiction over the subject matter.”5 When a defendant challenges a plaintiff’s
standing by bringing a 12 (b) (1) motion, the plaintiff bears the burden of establishing
4
See OCGA § 40-1-112 (c) (“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.”).
5
Douglas Cty. v. Hamilton State Bank, 340 Ga. App. 801, 801 (798 SE2d 509)
(2017) (punctuation omitted).
3
that jurisdiction exists.6 A motion to dismiss for lack of subject-matter jurisdiction can
“allege either a facial challenge, in which the court accepts as true the allegations on
the face of the complaint” or “a factual challenge, which requires consideration of
evidence beyond the face of the complaint.”7 And we review de novo a trial court’s
grant of a motion to dismiss due to lack of subject-matter jurisdiction.8 We also
construe the pleadings “in the light most favorable to the nonmoving party with any
doubts resolved in that party’s favor.”9 With this standard of review and these guiding
principles in mind, we turn to Stillwell’s specific claims of error.
1. Stillwell first contends the trial court erred in granting Topa’s motion for
dismissal due to lack of subject-matter jurisdiction because it raised the
nonjurisdictional question of whether she had a cause of action against Topa, not any
issue of subject-matter jurisdiction. We agree.
6
See id.
7
Id.; accord Bobick v. Community & Southern Bank, 321 Ga. App. 855, 860
n. 4 (3) (743 SE2d 518) (2013); Pinnacle Benning v. Clark Realty Capital, 314 Ga.
App. 609, 618 n. 37 (2)(a) (724 SE2d 894) (2012).
8
See Douglas Cty., 340 Ga. App. at 801-02; Bobick, 321 Ga. App. at 856.
9
Douglas Cty., 340 Ga. App. at 802.
4
Specifically, Stillwell maintains the proper inquiry is not whether the trial court
has authority to adjudicate direct actions against insurance carriers under the GMCA,
but rather whether Topa is a defendant within the category of persons or entities the
direct-actions statutes authorize plaintiffs to join as defendants. Georgia’s direct-
action statutes create standing for injured plaintiffs to sue insurers of motor carriers
directly.10 And the trial court’s analysis, according to Stillwell, was one of statutory
interpretation—i.e., whether Topa is a motor-carrier insurer, thus authorizing her (the
plaintiff) to sue the company under the GMCA. Topa, on the other hand, maintains
10
See OCGA §§ 40-1-112(c) and 40-2-140; Reis v. OOIDA Risk Retention
Grp., Inc., 303 Ga. 659, 664 (814 SE2d 338) (2018) (“[T]he direct[-]action statutes
provide a vehicle for directly naming a risk retention group as a party in a lawsuit.”);
Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 495 (371 SE2d 401) (1988)
(“We find . . . that because appellees’ complaint did adequately allege a direct action
against [the insurance company], the Court of Appeals correctly denied appellant’s
motion to dismiss.”); Nat’l Indem. Co. v. Lariscy, 352 Ga. App. 446, 449 (835 SE2d
307) (2019) (“The general rule in Georgia is that a party may not bring a direct action
against the liability insurer of the party who allegedly caused the damage unless there
is an unsatisfied judgment against the insured or it is specifically permitted either by
statute or a provision in the policy. However, Georgia has codified statutory
exceptions to this rule, the direct action statutes, which permit a direct action by an
injured party against an insurance carrier which insures a motor carrier.” (punctuation
and citation omitted)); Underwriters of Am. v. Williams, 354 Ga. App. 551, 53 (2)
(841 SE2d 135) (2020) (“OCGA § 40-1-112 (c), when read together with OCGA §
40-1-126, authorizes direct actions against insurers of motor carriers engaged in
intrastate commerce . . . .”).
5
that because the direct-action statutes create standing to sue, they are necessarily
jurisdictional. But this argument ignores decisions carefully distinguishing
constitutional standing—which is jurisdictional11—from questions about the scope
of a statutory cause of action—which are not jurisdictional.12
11
See Sons of Confederate Veterans v. Newton Cty. Bd. of Commissioners, 360
Ga. App. 798, 803-04 (2) (861 SE2d 653) (2021) (noting that constitutional standing
is “a jurisdictional issue that must be considered before reaching the merits of any
case and is a “doctrine rooted in the traditional understanding of a case or
controversy.”) (punctuation and citation omitted)); Spokeo, Inc. v. Robins, 578 U. S.
330, 338 (II) (A) (136 SCt 1540, 194 LEd2d 635) (2016) (same); Town of Chester,
N.Y. v. Laroe Estates, Inc., __ U. S. __, __ (II) (137 SCt 1645, 198 LEd2d 64) (2017)
(same); Black Voters Matter Fund, Inc., et al. v. Kemp et al.; & vice versa (four
cases), ___ Ga. ___, ___, Case Nos. S21A1261 and S21A1262, 2022 WL 677669, at
*4 (1) (2022) (noting that constitutional standing is a jurisdictional issue); Perdue v.
Lake, 282 Ga. 348, 348 (1) (647 SE2d 6) (2007) (“As a general rule, standing must
be determined at the time at which the plaintiff’s complaint is filed in order to place
an actual case or controversy within the purview of the court.” (punctuation
omitted)); Bowers v. Bd. of Regents of the Univ. Sys. of Ga., 259 Ga. 221, 221-22
(378 SE2d 460) (1989) (Per Curiam) (“The existence of an actual controversy is
fundamental to a decision on the merits by this court.”); U-Haul Co. of Ariz. v.
Rutland, 348 Ga. App. 738, 743 (1) (824 SE2d 644) (2019) (“As it relates to standing,
we view the requirement that there be an actual case or controversy at the time the
complaint is filed.”); In the Interest of I. B., 219 Ga. App. 268, 269 (464 SE2d 865)
(1995) (physical precedent only) (noting that “[t]hroughout Article VI of the Georgia
Constitution, jurisdictional authority is given over ‘cases’” and “‘[c]ases’ are live
disputes, actual controversies” (footnotes omitted)).
12
See Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732, 740-41 (783 SE2d
614) (2016) (holding—without addressing the issue of subject-matter
jurisdiction—that a plaintiff lacked the ability to bring a claim because he was unable
to comply with the statute providing for the right of action at issue); N. by Nw. Civic
6
In Georgia, constitutional standing—more precisely, “Article VI standing”—is
a threshold jurisdictional issue to enforce traditional limits placed on a court’s
“judicial power,”13 as well as a question of subject-matter jurisdiction.14 The
Ass’n, Inc. v. Cates, 241 Ga. 39, 43 (3) (243 SE2d 32) (1978) (holding—without any
reference to subject-matter jurisdiction—that taxpayer was not able to object to a
particular tax adjustment because any objection to such an adjustment, under the
relevant statute, must be made by the county tax officials and not by the individual
taxpayer). Cf. Foisie v. Worcester Polytechnic Inst., 967 F3d 27, 44 (II) (C) (1st Cir.
2020) (“Arguments concerning the absence of statutory standing, unlike arguments
concerning the absence of constitutional standing, do not address a court’s subject[-
]matter jurisdiction but, rather, address the merits of the plaintiff’s claims . . .
Consequently, such arguments are more appropriately evaluated under the umbrella
of Federal Rule of Civil Procedure 12(b)(6)”) (citation omitted)).
13
See GA. CONST. art. VI, sec. I, para. I (“The judicial power of the state shall
be vested exclusively in the following classes of courts . . . .”); Rampersad v.
Plantation at Bay Creek Homeowners Ass’n, Inc., __ Ga. App. __, __, A21A1490,
2022 WL 189414, at *2 (“Georgia’s Article VI courts are vested with the judicial
power of the state.” (punctuation omitted)); see also Blackmon v. Tenet Healthsystem
Spalding, Inc., 284 Ga. 369, 371 (667 SE2d 348) (2008) (holding that “the
constitutional and procedural concept of ‘standing’ falls under the broad rubric of
‘jurisdiction’ in the general sense, and in any event, a plaintiff with standing is a
prerequisite for the existence of subject[-]matter jurisdiction.”); Connell v. Hamon,
361 Ga. App. 830, 838 (863 SE2d 744) (2021) (same); Wallace v. Chandler, 360 Ga.
App. 541, 545 (859 SE2d 100) (2021) (same); In re Haney, 355 Ga. App. 658, 660
(845 SE2d 380) (2020) (same); id. (noting that constitutional standing is a threshold
jurisdictional issue); see also Parker v. Leeuwenburg, 300 Ga. 789, 793 (797 SE2d
908) (2017) (Peterson, J., dissenting) (noting that “[a] robust standing doctrine is
necessary to ensure that courts remain the least dangerous branch of government, and
that “[w]hen we decide only cases brought by parties seeking redress for actual harm,
we limit ourselves to exercising only that power granted us by the Georgia
Constitution”).
7
requirement that jurisdiction “be established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power’ . . . and is ‘inflexible and without
exception.’”15 As a result, we must consider whether a plaintiff has constitutional
standing nostra sponte.
Georgia’s constitutional-standing cases—which often rely upon the decisions
of the Supreme Court of the United States16—have established that the “irreducible
14
See supra note 13.
15
Steel Co. v. Citizens for a Better Env’t, 523 U. S. 83, 94-95 (III) (118 SCt
1003, 140 LEd2d 210) (1998) (Scalia, J.) (quoting Mansfield, C. & L.M. Ry. Co. v.
Swan, 111 U. S. 379, 382 (4 SCt 510, 28 LEd 462) (1884)).
16
See, e.g., Gaddy v. Ga. Dept. of Revenue, 301 Ga. 552, 555-56 (1) (a) (i) (802
SE2d 225) (2017); Parker, 300 Ga. at 792-93; Oasis Goodtime Emporium I, Inc. v.
City of Doraville, 297 Ga. 513, 518 (2) (773 SE2d 728) (2015); Sons of Confederate
Veterans, 360 Ga. App. at 803-04 (2). But see Black Voters Matter Fund, Inc., supra
at *12-13 (Peterson, J., concurring) (offering “observations on the lack of clarity in
our standing doctrine,” and noting that “[d]espite the textual differences between the
United States Constitution and the Georgia Constitutions, we have frequently cited
federal standing precedent in deciding Georgia cases without actually explaining why
federal case law interpreting Article III of the United States Constitution should be
considered persuasive authority for the different question of Georgia standing law.”);
Sons of Confederate Veterans v. Henry County Board of Commissioners, Supreme
Court of Georgia Case No. S22C0039 (March 8, 2022) (granting writ of certiorari and
noting that “[t]o the extent that OCGA § 50-3-1 (b) (5) creates a cause of action
allowing any person, group, or legal entity to seek damages without a showing of
individualized injury, does the Georgia Constitution nevertheless require such
plaintiffs to show individualized injury to have standing to sue?”) (emphasis
8
constitutional minimum” of standing consists of three elements.17 To ensure a case is
properly within the scope of a court’s judicial power, plaintiffs must allege facts
sufficient to show “(1) an injury in fact; (2) a causal connection between the injury
and the causal conduct; and (3) the likelihood that the injury will be redressed with
a favorable decision.”18 Here, Stillwell satisfies constitutional standing because (1)
supplied); Sons of Confederate Veterans v. Henry County Board of Commissioners,
Supreme Court of Georgia Case No. S22C0045 (March 8, 2022) (same).
17
Spokeo, Inc., 578 U. S. at 338 (II) (A), as revised (May 24, 2016) (Alito, J.);
accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (II) (112 SCt 2130, 119
LEd2d 351) (1992) (Scalia, J.).
18
Sons of Confederate Veterans, 360 Ga. App. at 804 (2) (quoting Granite
State Outdoor Advert., Inc. v. City of Roswell, 283 Ga. 417, 418 (1) (658 SE2d 587)
(2008)); accord Lujan, 504 U.S. at 560-61 (II); see also In re Haney, 355 Ga. App.
at 660 (“To have standing, a party seeking relief must show: (1) he has suffered “an
injury in fact that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) a causal connection between the injury and the
challenged wrong; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” (punctuation omitted)); Ga. Home
Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356, 362 (2) (825
SE2d 833) (2019) (same).
9
her complaint alleges facts that, if true, show an actual injury due to defendant’s
negligence; and (2) the trial court can redress that injury by awarding her damages.19
Nevertheless, the trial court concluded it lacked subject-matter jurisdiction over
the case because there was no underlying motor-carrier insurance policy—i.e., Topa
was not in the category of persons or entities the direct-action statutes authorized a
cause of action against.20 But the question of whether a plaintiff has a cause of action
under a particular statute is an ordinary issue of statutory interpretation, not a
jurisdictional question. Notably, the Supreme Court of the United States has
explained that it is misguided to characterize that kind of question as concerning a
19
Nat’l Collegiate Student Loan Tr. 2007-3 v. Clayborn, 357 Ga. App. 353, 354
(850 SE2d 787) (2020) (“A motion to dismiss may be granted only where a complaint
shows with certainty that the plaintiff would not be entitled to relief under any set of
facts that could be proven in support of his or her claim.”); Ass’n of Guineans in
Atlanta, Inc. v. DeKalb Cty., 292 Ga. 362, 364 (2) (738 SE2d 40) (2013) (same).
OCGA § 40-1-112 (c), when read together with OCGA § 40-1-126, “authorizes direct
actions against insurers of motor carriers engaged in intrastate commerce . . . .”
Williams, 354 Ga. App. at 553 (2).
20
The trial court found, and Topa argues, that it did not have subject-matter
jurisdiction over Stillwell’s action “because the insurance policy at issue was not a
commercial[-]carrier policy.” The court maintained that because there was no
underlying motor-carrier insurance plan, the plaintiff had no standing to sue, and as
a result, it lacked subject-matter jurisdiction over the case.
10
lack of subject-matter jurisdiction.21 The scope of a statutory cause of action, then, is
not an appropriate inquiry to consider on a OCGA § 9-11-12 (b) (1) motion to
dismiss.22 And given the trial court’s clear subject-matter jurisdiction to hear the tort
and contract issues alleged in the complaint,23 the trial court erred in holding that it
lacked subject-matter jurisdiction over Stillwell’s direct action against Topa under the
GMCA.24
21
See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. 118,
128 n.4, 129 (II-III) (134 SCt 1377, 188 LE2d 392) (2014) (Scalia, J.) (finding the
question of whether a plaintiff “has a cause of action under the statute” is “a
straightforward question of statutory interpretation,” one that “does not implicate
subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to
adjudicate the case” (punctuation omitted)).
22
See supra notes 11-12 & accompanying text.
23
See OCGA § 15-7-4; Thor Gallery at S. DeKalb, LLC v. Monger, 338 Ga.
App. 235, 236 (1) (789 SE2d 806) (2016) (“Georgia’s state courts, created pursuant
to OCGA § 15-7-2, exercise comprehensive jurisdiction over a wide range of claims,
including, inter alia, . . . contract and tort cases, . . . but excluding only felony
criminal cases, certain domestic cases, equity matters, and land title cases.”
(punctuation omitted)).
24
The decisions relied upon by Topa in its appellate brief either address the
issue of constitutional standing or do not substantively address the issue of subject-
matter jurisdiction at all. See, e.g., Warth v. Seldin, 422 U. S. 490, 498 (95 SCt 2197,
45 LEd2d 343) (1975); Atlantic Specialty Ins. Co. v. Lewis, 341 Ga. App. 838, 845
(802 SE2d 844) (2017); Sherman v. Dev. Auth. of Fulton Cty., 324 Ga. App. 23, 23
(749 SE2d 29) (2013).
11
2. Given our holding in Division 1 supra, we need not address Stillwell’s
argument that the trial court’s grant of Topa’s motion to dismiss her complaint was
based on erroneous factual findings.
For all these reasons, we reverse the trial court’s grant of Topa’s motion for
dismissal under OCGA § 9-11-12 (b) (1).
Judgment reversed. Mercier and Pinson, JJ., concur.
12