426 S.E.2d 592 | Ga. Ct. App. | 1992
These cross-appeals are before us on interlocutory appeal from the trial court’s denial of cross-motions for summary judgment. For convenience, we refer to the parties by their status in the first appeal filed.
Appellee’s son, a citizen of Utah, was seriously injured in North Carolina when a vehicle in which he was a passenger collided with a tractor-trailer rig owned by' a motor carrier allegedly insured by appellant. The motor carrier owning the rig and employing its driver was a Georgia corporation, and appellees alleged that the accident in North Carolina was caused in part by acts of negligence occurring in Georgia. At the time of the accident the motor carrier’s insurance policy with appellant had expired, and the motor carrier had a policy with another insurance company. However, appellant had filed a form with the Georgia Public Service Commission (GPSC) notifying GPSC that appellant was insuring the motor carrier when the earlier policy was in effect and had not filed another form to notify GPSC when its coverage of the motor carrier was cancelled. Appellees sued the driver, the motor carrier, the insurance company with which the motor carrier had an insurance policy at the time of the accident and appellant. Appellant moved for summary judgment, appellees responded with their own motion for partial summary judgment on the issue of coverage, and both motions were denied.
1. In Case No. A92A1339, appellant first contends that the trial
We are also not persuaded by appellees’ contention that appellant waived its right to challenge appellees’ reliance on OCGA § 46-7-58 (e) by failing to raise it as a plea in abatement in a motion to dismiss or in its answer. As Marty demonstrates, the applicability of this statutory provision is a question that goes to the merits of appellees’ cause of action against appellant and is therefore a proper subject for a summary judgment motion. See also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987) (OCGA § 46-7-12 and identical provisions of § 46-7-58 do not simply provide for exception to general rule against joinder of insurer but actually provide basis for independent cause of action against insurer). Accordingly, the trial court erred in denying appellant’s motion for summary judgment.
2. In light of our disposition of appellant’s first enumeration of error in Division 1, we need not address appellant’s second argument that its coverage of the motor carrier was effectively cancelled at the time of the accident.
3. In Case No. A92A1340, appellees argue that their motion for
Judgment in Case No. A92A1339 reversed. Judgment in Case No. A92A1340 affirmed.