concurring in part and dissenting in part.
I concur in Divisions 1 and 2 of the majority opinion but respectfully dissent with respect to Division 3.
Ordinarily, joinder of parties is governed under the Civil Practice Act, sections 19 and 20 (OCGA §§ 9-11-19; 9-11-20). Plaintiff does not invoke these provisions for joining Integral. He seeks instead to compel the insurer to be joined on the authority of OCGA § 46-7-12 (e), which provides: “It shall be permissible under this article [the article of the chapter on public utilities and transportation which governs motor common carriers] 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.”
Whether joinder is allowed is a matter of procedure, with which plaintiff agrees. This was recognized in Watkins v. H. O. Croley Granary, 555 FSupp. 458, 461 (2) (N.D. Ga. 1982): “[OCGA § 46-7-12 (e)] does not enlarge or limit the financial liability of insurers of motor carriers, but only procedurally affects the remedy for enforcing that liability. [Cits.]” Thus, the law of Georgia applies, as the forum chosen by plaintiff is in Georgia. “Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. [Cit.]” Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992).
The question is whether the joinder provision covers the out-of-state collision.
Plaintiff’s first argument is that the provision is plain on its face and does not limit joinder to suits based on torts occurring in Georgia. While that is true, one must examine the development of this provision and the context in which it appears. It is an addition to the section of the law governing motor common carriers in Georgia which requires a security bond, indemnity insurance, or self insurance as a *47prerequisite for obtaining a certificate of public convenience and necessity.
The Supreme Court of Georgia construed OCGA § 46-7-12 (before subsection (e) was added) as meaning that since the required insurance is for the benefit of those who sustain actionable injury or loss, the insurance is “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 his motor vehicles insured under the policy.” Great American Indem. Co. v. Vickers, 183 Ga. 233, 236 (188 SE 24) (1936). “The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy.” (Emphasis in original.) Id. Thus it held that the injured party had a right to sue the insurer directly, without previously obtaining judgment against the tortfeasor. Vickers had sued the insurer alone.
A month after allowing, procedurally, a direct action because the contract was, substantively, a direct obligation, the Court held that the insurance company could not be joined with the motor common carrier in the same suit. The reasons were that the rules of pleading did not permit joinder of claims ex contractu with claims ex delicto, and the statute, which must be strictly construed because it is in derogation of common law, did not authorize it. Russell v. Burroughs, 183 Ga. 361 (188 SE 451) (1936).1
The next year the law was amended to add the subsection now known as (e) to both the motor common carrier act, upon which plaintiff relies, and the motor carrier for hire act (now known as the motor contract carrier article). OCGA § 46-7-58 (Ga. L. 1937, pp. 727, 730). “This, then, allowed the joinder of a tort action against the carrier with a contract action against its insurer-in-lieu-of-bond. The only condition precedent to the joinder of the latter was that there be a viable action against the former.” Farley v. Continental Ins. Co., 150 Ga. App. 389, 391 (258 SE2d 8) (1979).
The insurance which is required is for certificates for motor common carriers operating in Georgia, OCGA § 46-7-7, as the commission which issues such certificates only has power to regulate the business of carriers “on any public highway of this state.” OCGA § 46-7-2. See Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 612 (1) (367 SE2d 820) (1988). See also OCGA § 46-7-36, which subjects motor common carriers doing both interstate and intrastate business to the provisions of Article 1 “so far as [they] separately [relate] to commerce carried on in this state.”
“The public” which is referred to in OCGA § 46-7-12 as being *48the beneficiary of the insurance thus means the public on the highways of Georgia. Plaintiff does not have “a cause of action arising under [Article 1 ]” because only those causes which occur in Georgia arise under the requirement for insurance which protects the public on Georgia highways. (Emphasis supplied.) There is no basis for construing “the public,” as plaintiff would have us do, to mean Georgia residents wherever they may travel. Since the joinder provision in subsection (e) is in derogation of common law, we must strictly construe it. See Russell, supra. The controlling factor for joinder is the place where the tort occurred, not who was injured. Joinder is allowed under subsection (e) based on the tort having been committed in Georgia by a Georgia-certified carrier, not on its having been committed on a Georgia resident regardless of what state that resident was in.
Decided March 19, 1993. Weiner, Yancey & Dempsey, Beryl H. Weiner, John C. Yancey, Thomas C. Dempsey, Robert W. Diggs, for appellants. Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., for appellees.Despite plaintiff’s arguments to the contrary, National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642 (399 SE2d 260) (1990), is not overruled. Nor is it distinguishable on the salient points. The fact that it arose on summary judgment rather than on motion to dismiss is of no significance because it is undisputed here that the collision occurred in South Carolina and not in Georgia. Nor is it significant whether Florida does not have, but South Carolina has, a statute allowing joinder. Even if, under its S.C.R.C.P. 20 (a), South Carolina would allow joinder of the insurer which issues the insurance required by S.C. Code § 58-23-910, this is a suit in Georgia, not South Carolina, so the procedural rule of Georgia governs.
Thus the rule allowing joinder, which is a procedural rule, does not apply to the collision here at issue. Since the procedural rules of the forum apply, plaintiff had no right to join the insurance company in his wrongful death action against the carrier and its driver employee under OCGA § 46-7-12.
I am authorized to state that Judge Andrews and Judge Johnson join in this opinion.Russell also held that the same applies to the analogous motor contract-carrier section, now OCGA § 46-7-58.