*1 mother] had a ‘fixed and uniform habit’ of negligently caring for her son, evidence of May the missed and June 1991 appointments was probative not of whether she negligently cared for him after the sur- gery was canceled in August.” Dawson v. Fulton-DeKalb Hosp. (2) (b) (490 Authority, 715, I believe that judgment of the Court of Appeals should be affirmed in its entirety.
I am authorized to state that Justice Hunstein joins this opin- ion. 23, 1998
Decided November Reconsideration denied December Bird, Alston & Robert D. McCallum, Jr., Grant, James C. (case Smith, S97G1953). Candace N. for appellant no. Carter & Ansley, III, Ben Kingree Pickard, Mary K. John L. (case S97G1956).
McKinley, for appellant no. Toliver, A. LeRoy Shea, Jr., James A. Jr., Joseph H. King, appellees.
S98Q0715. DeHART et al. v. LIBERTY MUTUAL INSURANCE COMPANY. Presiding Justice.
Fletcher, and Craig Jeannie DeHart filed this action federal court seek- declaration that a liability insurance policy issued Mutual Insurance Company was effect when their son was in an automobile collision in North Carolina. The Eleventh Circuit U. S. Court of has asked this Court whether the Georgia Public Service Commission’s “continuous coverage” provision applies outside the state of whether state law permits stack- ing of a motor carrier’s liability insurance policies. We conclude that the state regulation applies to the same territory outside the state as the motor carrier’s insurance policy that an person may recover under that policy when the insurance company has failed to file a termination form with the Georgia PSC.
FACTS The PSC regulations require insurance companies to certify of motor carriers E by filing a Form and pro- vide notice of termination of coverage by a Form In filing K. June provided liability certified to the PSC that it
1986, Trucking Company Georgia in a for Senn insurance icy May 1986, K noti- In it filed a Form 1986. November effective days, fying filed cancelled but that the would be reinstating took effect. before the cancellation Form E Although policy expired Mutual did not file *2 notifying On that had terminated. Form K the PSC another liability policy Trucking acquired a insurance 27, 1987, Senn Company. May 26, 1988, a Insurance On National Continental from high- Trucking a Carolina caused a collision on North driver for Senn severely injured way Adam Shane DeHart. The DeHarts sued that companies trucking company in state court. and both insurance the The trial court denied Liberty summary judgment Mutual, but the holding Liberty Georgia reversed, Mutual that Court of of joined improperly outside the because the accident occurred had been Georgia.1 state of policy Continental for the
The DeHarts settled with National Trucking $125,000. and Senn limits of one million dollars The settlement the DeHarts then filed this action with agreement that it was not intended to affect stated Liberty litigation the DeHarts and Mutual. The between seeking in federal district court a dec- Liberty on the PSC laration that that motor carrier the PSC receives actual written nate. The district court Mutual was liable based
liability policies until are continuous
notice that the will termi- held that Mutual’s failure to file the policy with the PSC meant that the was effective termination form summary judgment granted the date of the accident and to the appealed DeHarts. and the Eleventh Circuit certified following questions to this court: two regulatory provision mandating
1. Does the GPSC properly registered policies motor carrier thirty with the GPSC are continuous until not less than days coverage written that such after the GPSC receives actual — coverage pro- i.e., will terminate the continuous vision vehicle collision occurs outside have extraterritorial . . . when a motor
Georgia?
the state of certified to the that it
2. Where an insurer has GPSC notwithstanding and, insures notify question, fails to the GPSC prior loss, has canceled to the that such certification been subsequently purchases a second and the motor DeHart, See Mut. Ins. Co. loss, in effect at the time of the does icy per- also mit extension of the GPSC continuous provision the two provide “stacking” policies respect with motoring public?2
MOTOR CARRIER LAWS AND REGULATIONS The Motor Carrier Act of 1931 gave Georgia PSC the power the business of in the regulate persons engaged transportation any highway for hire on in this state.3 persons property public required The act motor contract carriers to obtain a certificate of certificate, To necessity. convenience obtain the the carrier had to give adequate security bond with file of indemnity insurance for the protection public against injury negligence.4 the motor carrier’s The PSC’s rules provide continue until shall after written notice of the cancellation is received in the PSC’s office. bonds, insurance, endorsements,
Surety policies or certifi- cates of insurance . . . shall be continuous and shall not be *3 (30) cancelled or withdrawn until after in thirty days’ notice writing by surety sureties, the insurance or motor company, carrier, or other . . . has first been to the Com- Atlanta, in Georgia, mission at its offices which of period shall commence to run from the date such thirty days is received at the office of the Commission.5 actually
EFFECT OF GEORGIA REGULATIONS ON
OUT-OF-STATE COLLISIONS The DeHarts do not seek to recover from Mutual under By the terms of its with Senn its Trucking. terms, Instead, the on the policy expired May DeHarts seek third-party regulations. as beneficiaries of PSC Despite of its Mutual failed to file a Form K policy, notify- result, the PSC of the policy’s cancellation. As a the DeHarts that the continuous argue coverage regulation mandates (11th 1998). DeHart v. Mut. Ins. F.3d 856 Cir. (1992) 1998) (motor 1996); (repealed (Supp. OCGA 46-7-52 see OCGA 46-7-2 com § § carriers). carrier act amended to include motor contract mon (1992) 1998). 1996); (repealed (Supp. see § OCGA 46-7-58 OCGA (1989). Rules of Service Commission Public 1-8-1-.07
injuries Liberty stacking in incurred a collision outside the state and the of top replace-
Mutual’s on afforded provided. ment that National Continental Appeals Georgia conflicting opin- 1. The Court of has rendered regulating ions on the motor carriers In when an accident occurs outside state. National Union Fire 6Marty panel appeals one of the court of Insurance Co. held that Georgia’s permit joinder statutes, direct action which of the motor in action, carrier and its insurance carrier extraterritorial effect. the same did not have Although the direct action statutes do not joinder expressly restrict of insurance carriers to causes of action Georgia highways, arising appeals the court of relied on other statutory provisions chapter regulating in the motor carriers on the public highways “of this state.”7 The court concluded that the trial granted summary judgment court should have to the insurance com- pany plaintiff highway. because the was on a Florida Another appeals panel Marty controlling court of found when it determined bring against that the DeHarts could not a direct cause of action Lib- erty Mutual in state court.8 joinder
When the same issue of of the insurance carrier arose again, Marty the whole court refused to follow the in decisions joinder prohib Instead, DeHart I. court held Johnson v. Woodard9that of the insurer and the motor carrier in the same action “is not merely highway ited because the collision occurred on a in South majority principled deny joinder Carolina.”10The found no reason to person injured by state-regulated a that is sued Geor gia. Rejecting statutory interpretation Marty, the Johnson majority Georgia highways concluded that “mere reference to use of person in some sections of the Act does not mean that a has a cause only injury Georgia highways if of action . . . occurs on Marty streets.” while the court would not assume that legislature applying state, intended enact laws outside the opposite. joinder court Johnson assumed the It concluded that the applied legislature statute did not to all out-of-state collisions because the
expressly prohibit joinder in that situation. appeals *4 While the court of in those cases dealt with the direct action statute and this case deals with the PSC’s continuous regulation, they the cases are similar to the extent that concern the
6 (399 260) (1990). App. 197 Ga. 642 SE2d 7 46-7-50). (quoting 46-7-1, 46-7-2, 46-7-51, 46-7-36, See id. at 643 OCGA §§ 8 I, App. DeHart 206 Ga. at 859. 9 Woodard, Johnson v. 208 Ga. 41 10Id. at 43. 11 at 44. Id.
385 Georgia injured ability persons to sue in out-of-state accidents conflicting opin- Georgia As the on state law. based motor carriers ions of language appeals of the motor state, however, the the court of applies directly to col- whether state address act does not carrier the state. occur outside lisions that regula- purpose act and PSC of the motor on the Based applies coverage provision that the continuous tions, we conclude Georgia. The the state of that occur outside collisions motor vehicle gen- protect members acts were enacted to state eral Georgia negligence by against injuries public of a preclude the of state do not The statutes motor carrier.12 law to motor public convenience certificate carriers with they Georgia. injuries necessity The cause outside throughout the United that occurred case covered accidents this purpose during policy period. the motor car- Given States travel, conclude that the interstate we the nature of rier laws and applies coverage provision and out-of- to both continuous state by Georgia motor car- states are other residents who riers. PROVISION ON COVERAGE
EFFECT OF CONTINUOUS THE PUBLIC MEMBERS OF INJURED coverage regulation provides not that it shall 2. The continuous company gives days written the insurance until 30 after cancelled regulation By express terms, contin- its commission. notice to the actually notice of cancellation.13 receives until the ues authority provide persuasive member of Other courts may rule on under the continuous recover the the insurance terminating company’s K cover- to file a Form failure age.14 addressing many cover- the effect of the continuous cases
Unlike litigation regulation, age between does not involve this case companies. In those or between two insurer and insured company generally have held that the situations, courts 12 (a) (a) 1998); Stephens, (1992), (Supp. Ross v. See OCGA 46-7-58 §§ 27) 705) Gleason, (1998); 377-378 Grissom (1992). (c) (1998) (b) (1) (permitting of insurer’s & termination 387.7 Cf. 49 C.F.R. days’ surety giving or replacement bond the effective date carrier). motor cancellation to the insured written notice of (3d 672, 682, F.2d See, Transp. e.g., Co. v. North Star Reinsurance Metro law, holding in effect until Pennsylvania remained (applying that insurance Cir. cancellation, attempt cancel despite at retroactive insurer’s notice of after insurer’s providing on the effective date of for termination passage of a state lation insurance). replacement certificate of *5 386 provided expired policy
that insurer involving is not liable to its insured or another coverage regulation.15 on the continuous In a case companies, Supreme
two insurance
the Florida
Court held
predecessor
company
provided
that the
insurance
liability coverage
policy expiration
and failed to file a notice of
with
company
the Florida PSC was not liable to the successor insurance
purpose
requirement
protect
because the
public against injury
of the notice
was to
by
negligence,
a motor carrier’s
not to
liability.16
expressly
diminish a current insurer’s
That court
reserved
predecessor
company
the issue
our case: whether the
third-party
policy
was liable to
pany
beneficiaries of the
when the com-
required
expiration.17
failed to file the
notice of
question,
When it considered that
the Court of
of Geor-
gia
company
injured
held that the insurance
was liable to
members
coverage provision
based on the continuous
of the PSC
Leavitt,18
rules. In Elliott v.
the court held that the insurance com-
pany
that had not cancelled its certified
at the time of the
despite
policy,
proper
collision,
was a
defendant
wrongful
company
give
in a
the
obligated
death action. Since the insurance
did not
required
legally
notice of
commission,
cancellation to the
it was
pay
plaintiffs. “[U]ntil proper
notice is
policy
public.”19
commission, the
is effective for the benefit of the
certifying
pro-
case,
In this
Mutual filed a form
that it
Trucking
vided
insurance for Senn
27,
effective
1996.
That certificate of insurance stated that
it could not be cancelled
giving
writing
without
30
notice of cancellation in
to the com-
15See,
e.g.,
Co.,
752,
App.
Smith v. National Union Fire Ins.
127 Ga.
753-754
205) (1972) (although
company
plaintiffs
was hable to
based on its failure
give
required
commission,
notice of cancellation to the
it was entitled to reimburse
lapsed
ment from the insured since
coverage);
generally
had
and there was no
see
(3d
1998)
Russ,
2
(citing
Lee R.
Couch on
Insurance
31:19
ed.
cases on the effect of
cancellation).
notify government agency
insurer’s failure to
16
(Fla. 1982)
Am.,
749,
See Canal Ins. Co. v. Insurance Co.
424
(approv
So2d
of N.
(Fla.
1981)
Morgan,
App.
Insurance Co.
Am. v.
disap
406 So2d 1227
Ct.
Dist.
of N.
(Fla.
proving
Pennsylvania
Co.,
National
Indem. Co. v.
Nat’l Mut. Cas. Ins.
363 So2d 151
1978)).
App.
Dist. Ct.
749;
Country
Co.,
151,
See id. at
see also
Mut. Ins. Co. v. Millers Nat’l Ins.
534 NE2d
(Ill.
1989) (“Were
App.
general public
Ct.
[rather
a member of the
than an insurance
company] seeking compensation
certificate,
result,
for losses
virtue of an uncancelled
different.”).
likelihood,
(Tex.
Jones,
all
would be
But see CIGNA Ins. Co. v.
Questions answered. Ml the Justices concur. *6 Justice, concurring.
Carley, I concur in fully the majority’s holding that, until the insurer has proper of termination to the Public Service Commission (PSC), the motor carrier’s liability remains in effect and pro- vides for injuries from an resulting extraterritorial collision. I write in separately explain why, my opinion, Liberty Mut. Ins. Co. 592) (1992) DeHart,
v. does not compel the contrary result in particular this case.
Liberty Mut. Ins. Co. v. DeHart involved the same parties as this and, in appeal case, that the Court of held Appeals former (e) OCGA 46-7-58 did not authorize a § direct cause of action against the motor carrier’s insurer if injuries the did not occur Georgia. rule, Under the “law of the case” “any ruling by the Court or Supreme the Court of in a case Appeals shall be in all binding subsequent pro- in that ceedings case the lower court the Supreme Court or (h). the Court of Appeals may as the case be.” OCGA 9-11-60 Even if § the law subsequently the changes, decision appellate remains bind- ing precedent as between parties the thereto. Fulton-DeKalb Hosp. (1) Walker, Auth. v. 216 Ga. App.
Thus, the decision of the Court of Liberty Mut. Ins. Co. v. DeHart would controlling in all subsequent proceedings in that case.
Although this does involve appeal the same as parties DeHart, Mut. Ins. Co. v. it arises in the of separate litigation context wherein a different question presented Here, is for resolution. there is no contention that the DeHarts statutory have a a right pursue direct cause of against action the insurer prior to a obtaining judg- against ment Indeed, motor carrier. they already have settled their claim against alleged case, tortfeasor. In this the DeHarts brought declaratory action judgment to establish that seeking Lib- erty Mutual Insurance Company provided coverage negligent motor carrier at the time the collision occurred North Carolina. (e) do not They rely upon former OCGA other stat- ute. The DeHarts’ claim is upon the continuous coverage provi- sion of the PSC’s rules. Clearly, this issue of vel non is dis- tinct from whether had a statutory right DeHarts bring Company against Liberty in the first Mutual Insurance action
direct does not constitute Co. v. DeHart Mut. Ins. instance. the declaratory judgment separate action case, which is a law of this though grounds, is between the action even on different “based parties.” Strauss, 248, 249 Strauss v. same (1973). (1). supra Hosp. Compare Walker, at 787 Auth. Fulton-DeKalb correctly claim, majority the DeHarts’ the merits of resolves The holding to the same benefits policy and carrier’s extent as the motor extraterritorial therefore, entitled to recover is, state in another that a if the insurer ing proper terminat- form for file the PSC the
failed to with policy. 4, 1998 December Decided December denied Reconsideration Barrow, Winburn, Barrow, John J. Winburn, Mac Lewis & Gene appellants. for appel- Ansley, Kingree DiCarlo, III, C. Ben Patrick Carter & lee. *7 NATIONSBANK, et al. N. A. LAMB et al. v.
S98A1261. NATIONSBANK, N. A. et al. LAMB et al. v. S98A1262. al. NATIONSBANK, N. A. et FREDLUND v. S98A1264. Justice. Hines, appeal Court of Chat- from a decision of the Probate This is an brought by declaratory judgment County in an action for ham of a trust estab- NationsBank, N. A. to determine beneficiaries of Herschel V. Jenkins.1 the Last Will and Testament lished under years approximately five before Jen- The will was executed (4.) controversy portion is Item III. which of the will in kins died. The provides: corpus my surviving daughter,
Upon the death of last (2) equal parts, my parts one of the divided into two estate is to be my immediately paid nieces and delivered over living. nephews the death of In the event of then A., merger NationsBank, corporate The Citizens and Southern N. successor Bank, under the will. National is executor