Georgia direct action against a trucking company's insurer

Conditions for joining the insurance carrier

Georgia direct action against a trucking company's insurer under Section 40-1-112(c)(1) turns on insolvency or bankruptcy of a related trucking company, or on a failure of personal service after reasonable diligence. That paragraph applies to "any person having a cause of action arising under this part", which may include a cause of action following a truck crash that arises under that part. For causes of action accruing July 1, 2024 or later, such a person may join in the same action the trucking company and the insurer, whether the claim arises in tort or contract, only when a condition in subparagraph (A) or subparagraph (B) is present. The former subsection (c), quoted in the amendment notes, contained no such conditions. Subparagraph (A) is satisfied when "One or more motor carriers related to the cause of action are insolvent or bankrupt". Subparagraph (B) is satisfied when personal service, as provided in subsection (e) of Section 9-11-4, cannot after reasonable diligence be effected on the truck driver of the vehicle that gave rise to the cause of action, or on the trucking company itself.^[1][4]

Division (i) of Section 40-1-112(c)(1)(B) addresses a failure of personal service against the truck driver. Division (ii) addresses a failure of personal service against the trucking company rather than the truck driver. The text joins divisions (i) and (ii) with the word or, listing failed service on the truck driver and failed service on the trucking company as alternatives. In each division, failed service on the truck driver or on the trucking company supports joinder under Section 40-1-112(c)(1) only after reasonable diligence. When a truck accident gives rise to a cause of action that arises under that part and accrues July 1, 2024 or later, joining the insurer in the same action is subject to these conditions of insolvency or bankruptcy, or failed personal service.^[1]

Section 40-2-140(d)(4)(A) states a parallel rule for any person having a cause of action, whether arising in tort or contract, under Section 40-2-140. Such a person may join in the same cause of action the trucking company and its insurer only when one or more related trucking companies are insolvent or bankrupt, or when reasonable diligence has failed to achieve personal service under Section 9-11-4(e) on the truck driver or on the trucking company. Section 40-2-140(d)(4)(A)(ii) places failed service against the truck driver of the vehicle giving rise to the cause of action in division (I), and failed service against the trucking company in division (II). Under Section 40-2-140(a), the word commissioner means "the commissioner of public safety." For a cause of action under Section 40-2-140 that follows a truck crash, the insurer may be joined when either the insolvency or bankruptcy condition or the failed personal service condition is met, since the statute lists them as alternatives. As with Section 40-1-112(c), this subparagraph applies to causes of action accruing on or after July 1, 2024, according to the editor's notes on the official code page.^[3][4][1]

Joining the insurer by amended complaint

Georgia direct action against a trucking company's insurer proceeds under Section 40-1-112(c)(2) by amended complaint once a condition in paragraph (1) is satisfied. When one or more related trucking companies are insolvent or bankrupt, or personal service on the truck driver or the trucking company cannot be effected after reasonable diligence, "the insurance carrier may be joined in the action as a matter of right, without motion or order of the court, by filing an amended complaint joining the insurance carrier." The amended complaint is served on the insurer pursuant to Section 9-11-4, and that insurer is required to file an answer with the court within 30 days of service. Section 40-1-112(c)(3) provides that, for purposes of paragraph (2), "the amended complaint shall relate back to the date of filing of the original pleading."^[1][4]

Section 40-2-140(d)(4)(B) applies the same procedure to a cause of action under Section 40-2-140. If a related trucking company is insolvent or bankrupt, or reasonable diligence has not produced personal service on the truck driver or the trucking company, the insurer may be added as a matter of right by an amended complaint, with no motion or court order needed. That pleading is served on the insurer pursuant to Section 9-11-4, and the insurer answers within 30 days of service. Under Section 40-2-140(d)(4)(C), the amended complaint relates back to the date the original pleading was filed. Where a truck crash gives rise to a cause of action under Section 40-2-140 that accrues on or after July 1, 2024, this amended complaint route opens only after one or more related trucking companies become insolvent or bankrupt, or after personal service fails despite reasonable diligence.^[3][4]

Under Section 40-1-112(c)(2) and Section 40-2-140(d)(4)(B), the amended complaint route is available after a related trucking company is insolvent or bankrupt, or after reasonable diligence fails to achieve personal service on the truck driver or the trucking company. The relation back rule in each statute applies for purposes of that amended complaint, whether joinder rests on insolvency or bankruptcy or on failed service on a truck driver or trucking company. In a cause of action following a truck accident, the joined insurer's answer is due within 30 days of service of the amended complaint under either statute, once a related trucking company is insolvent or bankrupt, or personal service has failed after reasonable diligence.^[1][3]

Personal service on drivers and motor carriers

Section 40-1-112(c)(1)(B) and Section 40-2-140(d)(4)(A)(ii) speak of personal service "as provided in subsection (e) of Code Section 9-11-4" against the truck driver of the vehicle giving rise to the cause of action or against the trucking company. Whether the defendant is a truck driver or a corporation, Section 9-11-4(e) requires that, except where the defendant has waived service, the summons and complaint be served together by delivering a copy of the summons attached to a copy of the complaint. Under Section 9-11-4(e)(1)(A), when the action is against a corporation incorporated or domesticated in Georgia, or a foreign corporation authorized to transact business in Georgia, delivery is made to the president or another officer, a managing agent, or a registered agent. Section 9-11-4(e)(1)(B) provides that a managing agent means a person employed by the corporation "who is at an office or facility in this state and who has managerial or supervisory authority" for it.^[1][3][4]

When for any reason service cannot be had in that manner, Section 9-11-4(e)(1)(A) makes the Secretary of State an agent of the corporation upon whom process, notice, or demand may be served. In that case, the process, with a copy of the affidavit submitted to the court, is delivered to the Secretary of State or to a person the Secretary of State has designated to receive service. The plaintiff or the plaintiff's attorney certifies in writing to the Secretary of State that the process was forwarded by registered mail or statutory overnight delivery to the last registered office or registered agent, that service could not be effected there, and that the corporation appears to have failed to maintain a registered office or appoint a registered agent. If the certification shows a last known address outside Georgia for a known officer, the plaintiff also mails that officer a copy of the summons and complaint by registered or certified mail or statutory overnight delivery. Service by certification to the Secretary of State, after such a failure to keep a registered agent, is answerable not more than 30 days from the date the Secretary of State receives the certification. The certification route in Section 9-11-4(e)(1)(A) applies when the action is against a corporation, rather than against an individual truck driver.^[4]

Under Section 9-11-4(e)(2)(A), an action against a foreign corporation doing business in Georgia without authorization to transact business here "that has a managing agent", or against a nonresident individual, partnership, joint-stock company, or association doing business in Georgia that has a managing agent, is served on that managing agent or on a registered agent designated for service of process. In all other cases, including service on an individual truck driver not covered by an earlier paragraph, Section 9-11-4(e)(7) allows service on the defendant personally, or by leaving copies at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing there. That paragraph also allows delivery of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Section 40-1-112(c)(1)(B)(i) measures personal service against the truck driver by subsection (e) of Section 9-11-4. Section 40-2-140(d)(4)(A)(ii)(I) does the same for failed service against the truck driver under that Code section.^[4][1][3]

Section 40-1-117(a) requires each nonresident trucking company, before a certificate or permit is issued to it under that part or at the time of registering under Section 40-2-140, to designate and maintain in Georgia an agent upon whom all summonses or other lawful processes may be served in any action growing out of its operations. Service on that agent, or acceptance or acknowledgment of service by the agent, has the same legal force and validity as personal service on the nonresident trucking company. If a nonresident trucking company fails to file that designation with the state revenue commissioner or to maintain an agent in Georgia at the address given, it is "conclusively deemed to have designated the Secretary of State and his or her successors in office as such agent". Service on the Secretary of State as that designated agent is valid provided that notice of the service and a copy of the process are immediately sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the nonresident trucking company if its address is known. Where a nonresident trucking company has failed to designate an agent, service on the Secretary of State is made by delivering two copies of the process to that office with a fee of $10.00.^[2]

Indemnity insurance and the failure to file

Under Section 40-1-112(a), a trucking company carrying household goods or property or passengers is not issued a certificate unless a certificate of insurance is filed with the department, on forms prescribed by the commissioner, evidencing a policy of indemnity insurance from an insurance company licensed to do business in Georgia. For passenger vehicles, the policy protects "passengers and the public against injury proximately caused by the negligence of such motor carrier, its servants, or its agents". Under the same subsection, "The insurer shall file such certificate", and a missing required form does not reduce any person's right, including the right of a person injured in a truck crash, to bring an action directly against the trucking company's insurer. Section 40-1-112(b) allows the department to permit self-insurance in place of an indemnity policy whenever, in its opinion, the trucking company's financial ability warrants it. For a cause of action arising under the part referred to in Section 40-1-112(c)(1) that follows a truck accident and accrued on or after July 1, 2024, joining the insurer in the same action turns on the conditions in Section 40-1-112(c)(1): insolvency or bankruptcy of a related trucking company, or failed personal service after reasonable diligence. The former subsection (c), quoted in the amendment notes, allowed joining the trucking company and the insurer without these conditions.^[1]

Section 40-2-140(d)(2) applies a parallel rule to a for-hire intrastate trucking company, which is not issued a registration unless a certificate of insurance is filed with the commissioner, on forms the commissioner prescribes, evidencing indemnity insurance from an insurance company licensed to do business in Georgia. That policy protects passengers in passenger vehicles and protects the public against the negligence of the for-hire intrastate trucking company and its servants or agents when that negligence is determined to be the proximate cause of any injury. The insurer files the certificate and may file it electronically with the commissioner. Failure to file any form required by the commissioner does not diminish the right of any person to pursue an action directly against a for-hire intrastate trucking company's insurer. Under Section 40-2-140(d)(3), the commissioner may permit self-insurance whenever, in his or her opinion, the trucking company's financial ability warrants it. For a cause of action under Section 40-2-140 that follows a truck crash and accrues on or after July 1, 2024, Section 40-2-140(d)(4)(A) permits that insurer to be joined in the same cause of action only on insolvency or bankruptcy of a related trucking company, or on failed personal service on the driver or the trucking company after reasonable diligence. The former paragraph (d)(4), quoted in the amendment notes, allowed that joinder without these conditions.^[3]

Effective dates, venue, covered farm vehicles and related provisions

According to the history line and amendment notes on the official code page, the first 2024 amendment, Ga. L. 2024, p. 966 (SB 426), effective July 1, 2024, rewrote Section 40-1-112(c) and replaced Section 40-2-140(d)(4) with its present text. The notes quote the former wording, which allowed a person with a cause of action to join the trucking company and its insurer in one action, in tort or contract, without any condition of insolvency or bankruptcy or failed personal service on a truck driver or trucking company. With that rewrite, Georgia direct action against a trucking company's insurer moved from unconditional joinder to joinder only on insolvency or bankruptcy, or on failed personal service after reasonable diligence. Under the editor's notes, Ga. L. 2024, p. 966, Section 4 makes the new subsections applicable to causes of action accruing on or after July 1, 2024. Under that note, a cause of action following a truck accident that arises under the part referred to in Section 40-1-112(c) or under Section 40-2-140, and that accrues on or after July 1, 2024, is subject to the rewritten joinder conditions.^[1][3]

Under Section 40-1-117(b), except in cases where the Constitution requires otherwise, an action against a resident or nonresident trucking company for damages by reason of a breach of duty, whether contractual or otherwise, may be brought in the county where the cause of action or some part of it arose. This venue is "cumulative of any other venue provided by law." Under Section 40-1-117(c), except where the Constitution requires otherwise and for venue purposes only, a truck engaged exclusively in transporting agricultural or dairy products between farm, market, gin, warehouse, or mill "shall not be classified as a motor common or contract carrier."^[2]

Under Section 40-1-117(d)(1), a covered farm vehicle means "a motor vehicle with a gross vehicle weight rating or gross vehicle weight, whichever is greater, of 26,000 pounds or less", or a covered farm vehicle may be a heavier vehicle above 26,000 pounds traveling within the registered state or within 150 miles of the farm or ranch for which it is used. Either type of vehicle also has to be registered in Georgia or another state and operated by a farmer or rancher or a crop share tenant, or by a family member or employee of one of them. It also has to be used primarily for the transportation of farm supplies, crops, livestock, or farm machinery. Under Section 40-1-117(d)(1)(D), the vehicle is not used in a for-hire operation, but that requirement does not apply to a vehicle operated under a tenant crop share agreement used primarily for transporting crops of the landlord. Section 40-1-117(d)(2) states that "A covered farm vehicle is not a motor carrier", except that any vehicle that federal law requires to carry either designation is designated as federal law requires.^[2]

Outside this entry are Section 40-2-140(e), on registration of any "intrastate motor carrier engaged in exempt passenger intrastate commerce", and Section 40-2-140(h), on fee collection and the commissioner's rulemaking. Also outside this entry is DPS Transportation Rulebook Rule 1-365.1, on the purpose and scope of the Department's rules enforcing federal interstate operating authority regulations.^[3][5]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)