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Georgia “direct action” law allows suit against insurers in both interstate and intrastate trucking cases

Georgia has long allowed people hurt in wrecks with intrastate trucking companies to sue the trucking company’s insurer directly, either alone or in the same lawsuit with the trucking company and truck driver. But it is necessary to have independent grounds for venue as to both in order to sue both the insurer and trucking company in the same lawsuit.

One advantage of this “direct action” statute is that the injury victim or decedent’s survivors would not have to chase down a trucker who might be elusive. Another is that it removes any doubt from jurors’ minds as to whether the defendant has insurance, though the amount of coverage is not revealed.

For year there has been doubt about how this applied to interstate trucking cases. If the trucking company was just operating within Georgia, and the insurance company was authorized to do business in Georgia, the direct action law clearly applied. If the trucking company was from another state, we operated in a gray area in deciding whether or not to include the insurer in a suit. Trucking companies and their insurers generally contended that the Georgia Direct Action Statute prevented plaintiffs from joining insurers of motor carriers that do not engage in intrastate commerce in Georgia. In representing plaintiffs, we often searched for aspects of intrastate trucking in the business of even an out-of-state trucking company.

Several months ago in a case in which I was involved, Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia ruled that the “direct action” statute also applies to interstate trucking cases in Georgia.

In Bramlett v. Bajric, 2012 WL 4951213 (N.D.Ga.,2012), Judge Thrash ruled that:

[I]nsurers of interstate carriers can be joined as parties under the statute. First, the statutory language itself indicates that the joinder provisions apply to both intrastate and interstate carriers. O.C.G.A. § 40–2–140(c)(4) states that “[a]ny person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” (Emphasis supplied). The phrase “Code section,” as used throughout the Georgia Code, refers to the entire section 40–2–140.FN1 The proper title for the section is Title 40, Chapter 2, Article 6A, Section 40–2–140. See O.C.G.A. § 40–2–140 (emphasis supplied). In the absence of any constraining language, there is no reason to think that the § 40–2–140(c)(4)’s reference to “this Code section” refers to anything but the entire code section, 40–2–140. Therefore, the plain language of the statute indicates that injured parties are able to join the insurers of interstate motor carriers.

This is significant in the handling of serious injury and wrongful death cases arising in Georgia against interstate trucking companies.

Along with the ability to seek an award of contingent attorney fees for violation of Federal Motor Carrier Safety Regulations, which may be considered as evidence of bad faith in the transaction under O.C.G.A. § 13-6-11, this helps make Georgia courts a viable option when there is a question where to file suit for a catastrophic trucking case.

Ken Shigley is past president of the State Bar of Georgia and former chair of the trustees of the Institute for Continuing Legal Education in Georgia. He is one of 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation & Practice. Based in Atlanta, his law practice mostly based on referrals from other attorneys in plaintiffs’ personal injury and wrongful death cases arising from motor carrier accidents.

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