*1 539 receiving dispatch. He the second contends the house after entered entry by rejecting argument his that the officer’s the trial court erred Pretermitting illegal whether the officer’s search. constituted constitutionally permissible, error. we find no harmful actions were Officer at Hansen’s May first visit he entered the house on his testified when

request, in the kitchen. When he he saw the beer cans returned, stated, there and the kitchen “was he the cans were still I I it the first time was there.” This addi- the same order that tional to felt was testimony gave prejudicial the factfinder no new information grounds v. consider, and its admission is no for reversal. Gilbert (433 (2) App. State, 485 SE2d sequestration 3. After the case called for trial and the rule of jury though attorney, requested invoked, Hansen trial even right writing consent, nine months with his had waived trial. He claims that he told the trial court he did before now because consequences waiver, not understand the the court should have disagree. jury allowed him to reassert his sen’s to a trial. We Han- sign- attorney acknowledged he consulted with his client before ing “[Tjhough sup- conflict, the waiver. the evidence was the record finding ports the trial court’s that defendant consulted with his intelligent knowing decision to this and made an waive 328) right.” State, 201 494 McCollum v. Ga. (1991). [original] jury effective, “Since trial was waiver [Hansen’s] in such fashion so as not was to burden to revoke waiver delay Mojica [Cit.]” impede justice. State, the trial or the cause of v. (1993). 806). (1), 210 err in The court did not untimely.

finding request jury this for trial contempt 4. Hansen’s the State’s brief and for motion to strike concur. affirmed. 19, 1996. Peering, Patrick D. Benjamin for Barry Morgan, Smith, Jr., Solicitor,

F. E. Cindi L. appellee. Teelon, Solicitors, Assistant v. FARMER et al.

A96A1357. CANALINSURANCE COMPANY Andrews, interlocutory appeal to Canal Insurance its motion determine whether not summary judgment. it did and We conclude that reverse. involving pickup This case arose out of an accident truck in Gary passenger, Farmer and a which J. L. tractor-trailer owned Garnett, tractor-trailer at the time Inc. Garnett’s was insured Company. Canal Insurance Farmer and his wife sued driver Company. tractor-trailer, Garnett, and Canal Insurance argues directly proceed that the Farmers cannot *2 (e) company plaintiff § the insurance a because OCGA 46-7-12 allows join company to the insurance in the same action as the motor carrier only security indemnity if the motor carrier has filed a bond or policy insurance in lieu of a bond with the Public Service Commission (“PSC”). undisputed It is that Garnett never filed for a certificate of public necessity convenience and with the PSC and never filed a policy undisputed or bond insurance in lieu of bond. It is also that Company Canal Insurance ance E never filed a Form certificate of insur- with PSC. Company

The Farmers contend Canal Insurance knew Garnett non-exempt yet awas motor contract carrier under state law and deliberately filing refrained from a Form E certificate of insurance They argue plaintiffs deprived with the PSC. that should not be of company directly their to sue the insurance when the insurance company intentionally register policy failed to the insurance with the PSC. recently decided this issue Southern Gen. Ins. v.Co. case, In that we “[u]nder unambiguous that,

held statute, terms of the as con- [Trucking strued Glenn McClendon 508 183 351) (1987)], plaintiff prove policy must that a approved by filed and the PSC in order to maintain a direct action against Waymond, supra. the insurer of a motor contract carrier.” light holding Waymond,

Therefore, in of our we conclude that against the Farmers cannot maintain a direct action Canal Insur- Company policy ance because the insurance issued to Garnett was approved by Accordingly, never filed or the PSC. summary judg-

in ment. Canal Insurance motion for spe- reversed. concurs. concurs cially.

Pope, Presiding Judge, concurring specially. specially express my inequities

I concur to concern over the present statutory allowing which arise under the scheme for a direct against § action the insurer under OCGA 46-7-12. the instant case, there was evidence that Canal knew, Insurance non-exempt known, should have Garnett was motor contract yet deliberately law, carrier under state refrained from Commission. E of insurance with the Public Service Form certificate summary situation, the law should be that the motion for Given this pres- judgment properly Nevertheless, the statute as — summary ently majority’s judgment exists, conclusion — correct. should have been is subject certainly to should have known that Garnett was (e) provides: registration. “It carrier OCGA 46-7-12 motor contract any person having permissible a cause shall be under this article for join arising article in tort or contract to of action under this surety, in the event a same action the motor carrier and its bond given. indemnity given bond, If a insurance is in lieu of join permissible car- shall be to the motor carrier and the insurance arising Although action, rier in the same whether tort or contract.” (e) specify of insurance subsection certificate, does not who is to file (c) provides: may, “[t]he commission in its dis-

subsection cretion, file, ... in lieu of such allow holder such certificate policy indemnity bond, a . . .” See insurance. (c). (a); Accordingly, “[o]nly §§ also OCGA 46-7-53 46-7-58 when such indemnity given a bond or insurance has been the motor may brought carrier a direct action be

insurer. . . .” Southern Gen. Ins. Co. v. 325) (1996). App. 613, 221 Ga. An essential plaintiff’s element of the claim under OCGA 46-7-12 is to show that obligation. Trucking the carrier fulfilled this See Glenn McClendon statutory obligation imposed upon That there is no the insurer to purpose. purpose file of the the subverts statute’s “The permitting joinder of the Insurance in a claim com- Act, mon carrier further is, is to the of the Motor Carrier protect public against injuries by the caused negligence.” Freight System, Andrews v. Yellow 262 Ga. 476 712) (1992). Allowing escape liability Canal to works disser- public. vice on the impose filing obligation ignores

Moreover, to the on Garnett the reality relationship: of the insurer and carrier the insurer maintains copy policy, the of the and the insurers are more of the aware many requirements than of the carriers. Canal’s evasion here was by loophole not intended legislature. the statute. This should remedied the be 19, 1996 Gray Thomp- Gilliland, Gilliland, McÑatt, & T. Greene & Cullen Hugh son, McNatt, B.

Terry appellees. Leiden, for SMITH;

A96A1475, BACON v. and vice versa. A96A1476. (474 SE2d Blackburn, Jerry appeals superior A96A1475, the court’s Case No. probate upheld the and Smith’s order which reversed court A96A1476, assets in annuities. In Case No. investment of his ward’s Walter appeals portion superior Smith the court’s order which thereby affirming summary judgment, pro.- denied his motion for the of the letters of dismission to Walter bate court’s revocation H. The tribution (minor). guardians Christopher Lee Lois L. Smith as Smith underlying petition action arose out of a and dis-

filed Bacon.1 April appointed 25, 1990, On Walter and Lois Smith were 15-year-old adopted Christopher son, Smith, of their Lee purpose managing Christopher’s until for the assets he reached age majority. April Liberty County Also on Pro- Christopher bate Court authorized the settlement of the tort claims lodged against Anneewakee, Inc., $452,740.05, in the total amount of May 14, 1990, from which pher’s guardians fees were deducted. On Christo- petition probate seeking

filed a court the court’s approval annuity plans. Christopher’s to invest in certain settlement described probate specifically approved review,

After court purchase requested. of and authorized the of the annuities purchased, Christopher par- The annuities were listed his primary Henry ents as dary beneficiaries and and Sheila Smith as secon- Bacon, beneficiaries. half-brother from previous marriage beneficiary. mother’s pher designated was not listed as a Christo- judge’s pres- beneficiaries court guardians. presence ence and outside the Christopher On December killed in an accident. Christopher’s guardians administered his estate and were issued let- *4 September 16, ters of dismission on Bacon filed the 1993. On November underlying petition and distribution of asserting estate, that he was entitled to a one-fifth share annuities and estate assets.2 The court deter- mined that letters of dismission to the should be 1 Bacon is the son of and her first therefore the half- Lois Smith husband. husband, brother to the children of Lois and her second Walter Smith. The action was filed Smith as Lois Smith was deceased.