Morgan Driveaway Inc. v. Canal Ins. Co.

The insurer was exempt from direct suit under former O.C.G.A. § 46-1-1 9 C xiv.

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This case arises out of a motor vehicle collision that occurred May 4, 2001. Earnest McClary, a driver for Morgan Driveaway, was delivering a Winnebago motor home and struck the rear of a dump truck driven by Terrell Wallace. Wallace brought this action for personal injuries against McClary, Morgan Driveaway, and Liberty Mutual Fire Insurance Company, Morgan Driveaway’s insurer.1 The defendants answered and successfully moved to add Wallace and his insurer, Canal Insurance Company, as defendants in counterclaim. The trial court granted summary judgment to Canal on the ground that Canal was exempt from a direct action under former OCGA § 46-1-1 9 C xiv. McClary and Morgan Driveaway collectively “Morgan Driveaway” appeal. We agree with the trial court’s conclusion that a direct action against Canal was unauthorized, and we affirm. 1. In general, an insurer may be joined directly in a cause of action with a motor common or motor contract carrier. OCGA § 46-7-12 c. This code section “is in derogation of the common law and must be strictly construed. Cit.” National Indemnity Co. v. Tatum , 193 Ga. App. 698, 700 388 SE2d 896 1989. At the time of the 2001 collision, former OCGA § 46-1-1 9 C xiv provided an exemption from the definition of motor contract carrier and motor common carrier if the vehicle was a dump truck used exclusively in the transportation of certain materials. See Ga. L. 1996 p. 950, Sec. 2. It appears to be undisputed that Wallace was hauling material contained within the exemption as it existed at the time. In 2002, a year after the collision, OCGA § 46-1-1 9 C was amended. The exemption for dump trucks was omitted from the revised statute, and subsection xiv was reserved. OCGA § 46-1-19Cxiv.

The central issue in this case is whether the exemption was viable at the time of the collision. If it was viable, a direct action against Canal was improper. Conversely, if the exemption was no longer applicable, as Morgan Driveaway contends, a direct action against Canal was proper.

Morgan Driveaway Inc. v. Canal Ins. Co.

The insurer was exempt from direct suit under former O.C.G.A. § 46-1-1 9 C xiv.

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