Ellerbee v. Interstate Contract Carrier Corp.

• Decision Date: 14 July 1987
• Docket Number: No. 73754,73754
• Citation: Ellerbee v. Interstate Contract Carrier Corp., 360 S.E.2d 280, 183 Ga.App. 828 (Ga. App. 1987)
• Parties: ELLERBEE et al. v. INTERSTATE CONTRACT CARRIER CORPORATION et al.
• Court: Georgia Court of Appeals

Page 280

360 S.E.2d 280

183 Ga.App. 828

ELLERBEE et al. v. INTERSTATE CONTRACT CARRIER CORPORATION et al.

No. 73754.

Court of Appeals of Georgia.

July 14, 1987.

Rehearing Denied July 28, 1987.

Joe L. Anderson, Austell, for appellants.

Edward W. Killorin, Robert W. Killorin, Atlanta, for appellees.

Michael J. Bowers, Atty. Gen., H. Perry Michael, First Asst. Atty. Gen., Patrick W. McKee, Sr. Asst. Atty. Gen., H. Jeff Lanier, Asst. Atty. Gen., amici curiae.

BEASLEY, Judge.

Mrs. Ellerbee was injured in a 1981 accident with a tractor-trailer driven by Gambel. The tractor was owned by Smith, who apparently leased it to Interstate Contract Carrier Corporation. Bankers and Shippers Insurance Carrier of New York was the insurer for Interstate. The Ellerbees sued all four, the driver, the owner/lessor, the lessee, and the lessee's insurer.

Service on the first three, all but the insurer, was made on the Secretary of State, plaintiffs alleging that they were covered by the provisions of OCGA Title 46 as motor common carriers or motor contract carriers and had not designated agents for service in Georgia. The insurer was properly registered and served through its agent. The action went into default and was opened by the court. Thereafter, the four defendants answered and included insufficiency of service of process as a defense, a ground which persuaded the trial court to dismiss the suit.

1. In their fifth enumeration, the Ellerbees complain of the dismissal as to insurer Bankers. It had contended that, although it was properly served, dismissal of the other three defendants required its dismissal also, as it could not possibly have breached any legal duty owing to plaintiffs. Although not specified in the order, this is apparently the basis for the court's ruling in Bankers' favor.

We need only consider the status of the lessee Interstate and Bankers in order to determine whether the dismissal as to Bankers was proper. All seem to agree that Interstate is a motor common carrier and motor contract carrier and is so registered with the Georgia Public Service Commission. OCGA §§ 46-7-16(a)(3) [common carriers] and 46-7-61(a)(3) [contract carriers] provide that carriers engaged only in interstate commerce over Georgia highways must "[g]ive the bond or indemnity insurance prescribed by this article, ..." The article requires that these carriers either post a bond or provide a policy of insurance "for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents." OCGA §§ 46-7-12(a), (c); 46-7-58(a), (c). The policy issued by Bankers serves this purpose.

We will assume, as argued by defendants, that Interstate has not been properly served. Does this mandate that Bankers also be dismissed, as argued by defendants? It does not. OCGA §§ 46-7-12(e) and 46-7-58(e) both provide that if a policy of insurance is maintained, it is permissible to join the motor carrier and the insurance carrier in the same action, whether in contract or tort. Because the action against the insurance carrier is based on contract, with the public as the third party beneficiary of the contract, Thomas v. Bobby Stevens etc. Contractors, 165 Ga.App. 710, 711(1), 302 S.E.2d 585 (1983), the only prerequisite to an action against the insurer is an "actionable injury"; this is not disputed here. Thomas, supra; see Tuck v. Cummins Trucking Co., 171 Ga.App. 485, 487(2), 320 S.E.2d 265 (1984); cf. Currahee Constr. Co. v. Rabun County School Dist., 180 Ga.App. 471, 472, 349 S.E.2d 487 (1986). So it is that dismissal of the action against the insurer because of the failure to obtain service on its insured was error. Griffin v. Johnson, 157 Ga.App. 657, 658(3), 278 S.E.2d 422 (1981).

2. (a) As to Interstate only, plaintiffs urge in enumeration four that any defense based on insufficiency of process has been waived. The complaint was filed on January 27, 1983, and went into default although all defendants received copies of the complaint and process. Defendants filed a demand for jury trial in April and a motion to open the default in May. It was granted in June, and two days later the answer for all defendants was filed.

Plaintiffs contend that waiver was effected by an affidavit filed by a claims supervisor for the insurer in support of the motion to open default stating, "each defendant provided us [Bankers] with timely notice of the above styled case and perfection of service." Assuming without deciding that the insurer's agent could make such an admission for its insured, there was no waiver.

Plaintiffs rely on OCGA §§ 24-3-30 and 24-4-24. The first section provides that any party may avail itself of allegations or admissions made in the pleadings of the other. This statute, however, applies only to admissions of fact and "is not applicable to an admission which is merely an opinion on the part of the party making it as to its legal effect." Scott v. Jefferson, 174 Ga.App. 651, 652(1), 331 S.E.2d 1 (1985). The impression that service had been perfected was at best a lay opinion, not a fact, as to the legal effect of the delivery of the pleadings.

Since the second section, OCGA § 24-4-24, was not raised below, it will not be addressed on appeal. Bogan v. State, 177 Ga.App. 614, 619(5), 340 S.E.2d 256 (1986).

This Bankers' affidavit, then, did not constitute a waiver by Interstate of sufficiency of service on it.

(b) We address another question regarding service on Interstate. As a nonresident motor carrier engaged in interstate commerce, Interstate is required to register with the Public Service Commission and designate an agent with the Commission for service upon it of all processes "in any action or proceeding against such motor common [contract] carrier growing out of its carrier operations." OCGA §§ 46-7-17(a) and 46-7-62(a). Failure to so designate allows service on the Secretary of State. Id. Although plaintiffs contend that a check was made with the Commission, apparently by telephone, and no agent was located for lessee Interstate (or owner Smith or driver Gambel), the record sports an uncontradicted affidavit from the Commission's executive secretary reflecting that an agent for service on Interstate has been in place in Georgia since 1970. Had the records been adequately checked by plaintiffs, the listing of Interstate's agent would have been found.

The complaint was filed just a few days before the statute of limitations expired. On the next day, service was made on the Secretary of State pursuant to OCGA §§ 46-7-17(a) and 46-7-62(a), and default was opened five months later. Fourteen months after that, service was made by the sheriff's deputy on the agent for Interstate who was registered with the Commission. This agent then wrote to plaintiffs' counsel and acknowledged that he served as agent for lessee Interstate.

The proof of service shows service in the appropriate manner on Interstate, i.e., through the motor carrier's registered agent on file with the Public Service Commission. In response to this second service, Interstate filed an answer asserting as defenses the statute of limitations and laches in the serving of process. Under OCGA § 9-11-4(c), where the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff. Bible v. Hughes, 146 Ga.App. 769, 770(2), 247 S.E.2d 584 (1978); Brumit v. Mull, 165 Ga.App. 663, 665(3), 302 S.E.2d 408 (1983). Because the court did not consider this issue, the case is remanded for its resolution as to Interstate.

3. Enumerations two and three involve the trial court's dismissal as to the tractor driver Gambel and owner/lessor Smith. The ground was that, although each was a motor contract/common carrier required to register with the Commission and to be served under OCGA §§ 46-7-17 and 46-7-62, separate registration was unnecessary and both were included in that of lessee Interstate, with the result that failure to serve them through this statutory mechanism aborted the suit as against them.

Copies of the complaint and summons were mailed by the Secretary of State's office to each of them pursuant to OCGA §§ 46-7-62(a) and 46-7-17(a) because neither had an agent designated with the Commission. A Commission affidavit states that Interstate is a registered nonresident motor carrier and has designated and maintained an agent for service of process in any action arising out of its carrier operations. A second such affidavit states that there has never been a registered agent for either Smith or Gambel, and that neither is or has ever been registered as a "motor carrier" in Georgia. Later, in 1985, service was attempted on Smith and Gambel by sheriff's service on the agent registered for Interstate. When that agent acknowledged to plaintiffs' counsel that he was agent for Interstate, he specifically stated "I am not the process agent for [owner/lessor] Gailon Smith, [driver] Gordon L. Gambel ..."

Defendants' argument hinges on the definitions of "motor common carrier" and "motor contract carrier" in OCGA § 46-1-1(7) and (8) at the time the court made its decision. Since then, effective April 9, 1986, OCGA § 46-1-1 has been rewritten and controls our decision. In re L.L.B., 256 Ga. 768, 353 S.E.2d 507 (1987). It now reads: "(1) 'Carrier' means a person who undertakes the transporting of goods or passengers for compensation. (6) 'For hire' means an activity wherein for compensation a motor vehicle and driver are furnished to a person by another person, acting directly or knowingly and willfully acting with another to provide the combined service of the vehicle and driver, and includes every person acting in concert with, under the control of, or under common control with a motor carrier who shall offer to...