Glenn McClendon Trucking Co., Inc. v. Williams

• Decision Date: 15 June 1987
• Docket Number: No. 73788,73788
• Citation: 359 S.E.2d 351,183 Ga.App. 508
• Parties: GLENN McCLENDON TRUCKING COMPANY, INC. et al. v. WILLIAMS.
• Court: Georgia Court of Appeals

Page 351

359 S.E.2d 351

183 Ga.App. 508

GLENN McCLENDON TRUCKING COMPANY, INC. et al. v. WILLIAMS.

No. 73788.

Court of Appeals of Georgia.

June 15, 1987.

Rehearing Denied July 2, 1987.

Certiorari Denied Sept. 8, 1987.

Eve A. Appelbaum, Michael J. Gorby, Atlanta, for appellants.

W. Carl Reynolds, Charles M. Cork, Macon, for appellee.

CARLEY, Judge.

A set of tandem wheels loosened and then separated from a tractor trailer truck that was being operated by an employee of appellant-defendant Glenn McClendon Trucking Co., Inc. (Glenn McClendon). After their separation, the wheels rolled into appellee-plaintiff's lane of traffic. When the car that appellee was driving struck the wheels, he was injured. Alleging his reliance upon the provisions of OCGA § 46-7-12(e), appellee brought this suit against Glenn McClendon and against Glenn McClendon's insurer, appellant-defendant Atlanta International Insurance Company (Atlanta International). The case was tried before a jury. The jury's verdict awarded appellee actual and punitive damages. The trial court entered judgment against appellants on the jury's verdict. Appellants filed timely alternative motions for new trial or judgment n.o.v. From the denial of their motions, appellants now bring this appeal.

1. At the close of appellee's evidence, Atlanta International moved for a directed verdict. That motion was denied and, as previously indicated, the trial court also

denied Atlanta International's subsequent motion for judgment n.o.v. On appeal, Atlanta International enumerates as error the submission of the case, as against it, to the jury.

"[T]he general rule [is] that an insurer may not be joined as a party defendant with its insured where there has been no judgment previously obtained against the insured.... [Cits.]" Brunson v. Valley Coaches, 173 Ga.App. 667, 669 (2), 327 S.E.2d 758 (1985). Notwithstanding this general rule, OCGA § 46-7-12(e) does provide that "it shall be permissible to join the motor carrier and the insurance carrier in the same action...." It would be erroneous, however, to construe OCGA § 46-7-12(e) as merely a statutory exception to the general procedural prohibition against the pre-judgment joinder of an insured and his liability insurer. OCGA § 46-7-12 contains numerous provisions of which subsection (e) is but one. Pursuant to those provisions, OCGA § 46-7-12 "establishes an independent cause of action against the carrier's insurer on behalf of a member of the public injured by the carrier's negligence. [Cit.] '[T]he structure of the Motor Carrier Act is to offer the insurer as a substitute surety bond, action against which is based on its contract with the carrier for the protection of the public as a third party beneficiary.' [Cit.] ' "This being true, the policy of insurance is not one of indemnity against loss as that term is generally understood, but is a direct and primary obligation to any person who shall sustain actionable injury or loss by reason of the negligence of the insured in the operation of his motor vehicles insured under the policy. The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy." [Cit.] ... "The cause of action is not on the tort; but on the contract by alleging the occurrence of the condition precedent required by the statute, which statute is an integral part of the contract of insurance..." ' [Cit.]" (Emphasis omitted.) Thomas v. Bobby Stevens Hauling Contractors, 165 Ga.App. 710, 711(1), 302 S.E.2d 585 (1983).

Since OCGA § 46-7-12 creates a direct pre-judgment cause of action in contract against an insurer and does not merely provide a statutory exception to the procedural prohibition against joinder of a liability insurer as a party defendant in a tort action against its insured, it follows that mere proof that the allegedly negligent tortfeasor had liability coverage is not necessarily sufficient proof of the direct cause of action against the insurer itself. The "statute, being in derogation of the common law, must be strictly construed...." Russell v. Burroughs, 183 Ga. 361, 364, 188 S.E. 451 (1936). It follows from a consideration of the entirety of OCGA § 46-7-12 that "[c]overage must be proved in these actions; if not, no verdict and judgment could be sustained against the insurer. Such an insurance policy, issued with the approval of the Public Service Commission 'is a policy of insurance against liability, any provisions in the policy, or in any rider attached thereto, to the contrary notwithstanding.' [Cit.]" (Emphasis supplied.) St. Paul Fire, etc., Ins. Co. v. Fleet Transp. Co., 116 Ga.App. 606, 609(2), 158 S.E.2d 476 (1967). See also Carolina Cas. Ins. Co. v. Davalos, 154 Ga.App. 776, 778 (2), 269 S.E.2d 897 (1980), rev'd on other grounds 246 Ga. 746, 272 S.E.2d 702 (1980). Evidence merely that the alleged tortfeasor had secured a policy which provided liability coverage would show only the existence of a policy which indemnified the alleged tortfeasor himself against loss for his own liability. Such proof would fail to show that the injured party was a third-party beneficiary who had a direct pre-judgment cause of action in contract against the insurer itself. Unless the applicability of OCGA § 46-7-12 is shown by evidence of the existence of a policy issued with the approval of the Public Service Commission, "the general rule, that an insurer may not be joined as a party defendant with its insured where there has been no judgment previously obtained against the insured, is applicable. [Cits.]" Brunson v. Valley Coaches, supra 173 Ga.App. at 669(2), 327 S.E.2d 758.

According to the allegations of appellee's complaint, Atlanta International had issued to Glenn McClendon an "insurance policy [which] was written and filed in accordance with OCGA § 46-7-12...." This allegation was denied in Atlanta International's answer. The burden was thus on appellee to prove his allegation. However, the evidence that was adduced by appellee at the trial of this case showed only that Atlanta International had issued to Glenn McClendon a policy containing liability coverage. There was no additional evidence that, pursuant to OCGA § 45-7-12(c), the policy that was issued by Atlanta International had been filed with and approved by the Public Service Commission in lieu of the bond that Glenn McClendon would otherwise have been required to file. This was a failure of proof as to an essential element of appellee's alleged pre-judgment direct cause of action in contract against Atlanta International. It follows that appellee failed to prove an essential element of his claim under OCGA § 46-7-12 and that the trial court erred in denying Atlanta International's motion for directed verdict and in denying its subsequent motion for judgment n.o.v.

2. By virtue of our holding in Division 1, remaining enumerations of error are, insofar as they relate to Atlanta International, moot.

3. Glenn McClendon asserts that there was no evidence of its wanton or willful conduct and that, therefore, appellee's recovery of punitive damages was unauthorized. The jury was authorized to find that, on the day of appellee's injury, an agent of Glenn McClendon ordered mechanics employed by the company to make certain repairs on the truck, notwithstanding his knowledge that the mechanics did not have, and had repeatedly been denied permission to acquire, a tool which was needed for the safe performance of the job. One of the known risks of failing to use that tool was that the ball bearings would cease to function and this would eventually cause the wheels to loosen and separate from the truck. After the repairs had been accomplished, the truck was returned to service. While the Glenn McClendon truck was in route, the wheels began to smoke. Another truck driver observed the smoking wheels and radioed this fact to the Glenn McClendon driver. Despite this warning, the Glenn McClendon driver continued to operate the truck and ignored the advice of the other truck driver to stop. Only when he had been informed by the other truck driver that the brake drum on his truck was breaking apart and falling on the brake line did the Glenn McClendon driver attempt to stop. Before the truck could be brought to a complete stop, the wheels separated from the truck and rolled into appellee's oncoming lane of traffic. From this evidence, the jury could have found such a wanton disregard of the rights of others as to authorize an award of punitive damages. See generally Getz Svcs. v. Perloe, 173 Ga.App. 532, 533(1), 327 S.E.2d 761 (1985); Bowen v. Waters, 170 Ga.App. 65, 66(2), 316 S.E.2d 497 (1984).

4. Error is enumerated as to the trial court's refusal to give requested charges on contributory and comparative negligence. The evidence in this case did authorize a charge on the avoidance doctrine of OCGA § 51-11-7 and such a charge was given. However, there was no evidence to authorize the requested charges on contributory and comparative negligence and, accordingly, there was no error in the trial court's refusal to give them. See generally Beadles v. Bowen, 106 Ga.App. 34, 35(4), 126 S.E.2d 254 (1962).

5. The failure of the trial court to give a requested charge on legal accident is enumerated as error. There was some expert testimony that metal fatigue rather than negligence was a possible but an unlikely cause of the separation of the wheels from the truck. There is considerable question whether this somewhat speculative testimony would be sufficient to authorize a charge on legal accident. "It has been said that 'the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.' [Cit.]" Garrett v. Brannen, 164 Ga.App. 10, 11(1), 296 S.E.2d 205 (1982), overruled on other grounds Chadwick v. Miller, 169 Ga.App. 338, 344(1), 312 S.E.2d 835 (1983). However assuming without deciding that the evidentiary...