concurring specially.
I concur specially to express my concern over the inequities which arise under the present statutory scheme for allowing a direct action against the insurer under OCGA § 46-7-12. In the instant case, there was evidence that Canal Insurance Company knew, or should have known, that Garnett was a non-exempt motor contract carrier under state law, and yet deliberately refrained from filing a *541Form E certificate of insurance with the Public Service Commission. Given this situation, the law should be that the motion for summary judgment was properly denied. Nevertheless, as the statute presently exists, the majority’s conclusion — that summary judgment should have been granted — is correct.
Decided August 19, 1996 Gray & Gilliland, T. Cullen Gilliland, McÑatt, Greene & Thompson, Hugh B. McNatt, for appellant.Canal certainly should have known that Garnett was subject to motor contract carrier registration. OCGA § 46-7-12 (e) provides: “It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” Although subsection (e) does not specify who is to file the proof of insurance certificate, subsection (c) provides: “[t]he commission may, in its discretion, allow the holder of such certificate ... to file, in lieu of such bond, a policy of indemnity insurance. . . .” (Emphasis supplied.) See also OCGA §§ 46-7-53 (a); 46-7-58 (c). Accordingly, “[o]nly when such a bond or policy of indemnity insurance has been given by the motor carrier may a direct action be brought against the motor carrier’s insurer. . . .” (Emphasis supplied.) Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, 614 (472 SE2d 325) (1996). An essential element of the plaintiff’s claim under OCGA § 46-7-12 is to show that the carrier fulfilled this obligation. See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987).
That there is no statutory obligation imposed upon the insurer to file proof of the policy subverts the statute’s purpose. “The purpose of permitting joinder of the Insurance Company in a claim against 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). Allowing Canal to escape liability works a disservice on the public.
Moreover, to impose the filing obligation on Garnett ignores the reality of the insurer and carrier relationship: the insurer maintains the copy of the policy, and the insurers are more aware of the filing requirements than many of the carriers. Canal’s evasion here was not intended by the statute. This loophole should be remedied by the legislature.
*542Terry Leiden, for appellees.