Johnson v. Woodard
| Decision Date | 19 March 1993 |
| Docket Number | No. A92A1693,A92A1693 |
| Citation | 429 S.E.2d 701,208 Ga.App. 41 |
| Parties | JOHNSON, et al. v. WOODARD, et al. |
| Court | Georgia Court of Appeals |
Weiner, Yancey & Dempsey, Beryl H. Weiner, John C. Yancey, Thomas C. Dempsey, Robert W. Diggs, Atlanta, for appellants.
Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., Atlanta, for appellees.
Rick Woodard is a Georgia resident employed by Owens Truck Leasing, a Georgia corporation doing business as a common carrier. Within the scope of his employment, he was driving a tractor-trailer owned by Owens when he struck a vehicle driven by Laura Johnson, resulting in her death. The collision took place on I-85 in South Carolina while Laura Johnson was returning home to Georgia from college in South Carolina. Woodard had begun his trip in Georgia and was returning to Georgia after picking up cargo in South Carolina.
Laura Johnson's husband, Michael Johnson, instituted this wrongful death action against Owens and Woodard in the Fulton Superior Court. Alleging that at the time of the accident Woodard was under the influence of the opiate codeine which impaired his driving, Johnson is seeking actual damages for negligence, carelessness, and recklessness, as well as punitive damages for recklessness, wilfulness or malice.
Johnson named Owens' indemnity insurer, The Integral Company, as a party defendant on grounds that Owens is a motor common carrier which was issued a certificate of public convenience and necessity by the Georgia Public Service Commission (PSC), and it is therefore permissible to join Owens' insurance carrier in this tort action under Georgia's direct-action statute, OCGA § 46-7-12(e). Johnson also asserted that joinder is proper in this state because South Carolina law also required Owens to have a certificate of public convenience and necessity, and South Carolina Code § 58-23-910 is a direct-action statute comparable to Georgia's.
The trial court granted Integral's motion to dismiss, for failure to state a claim against it, based on National Union Fire Ins. Co. v. Marty, 197 Ga.App. 642, 399 S.E.2d 260. Woodard and Owens also filed a motion to dismiss on various grounds, including improper venue, OCGA § 9-11-12(b)(3). The court considered matters outside the pleadings, taking into account affidavits and depositions, and denied the motion in effect but transferred the case to another county upon finding that uncontested facts showed that Woodard was a resident of Jones and not Fulton County and Owens was a resident of Baldwin and not Fulton County.
The trial court's certificate of immediate review was expressly limited to the dismissal of Integral. Transfer of the case to Baldwin County was completed. Upon our grant of interlocutory appellate review, enumerations relating to other alleged errors may be raised and must also be decided. OCGA § 5-6-34(d); see Griffith v. Ga. Bd. of Dentistry, 175 Ga.App. 533, 333 S.E.2d 647. Held:
1. Johnson complains of the trial court's transfer of the case for improper venue, on Woodard's and Owens' motion to dismiss, based on the factual finding that Woodard was not a resident of Fulton County when the suit was filed and served.
The court was the trier of fact on the issues, and its determination "will be reversed only where the evidence demands a contrary finding." Barrow v. Gen. Motors Corp., 172 Ga.App. 287, 288, 322 S.E.2d 900.
By affidavits, Woodard swore that at the time of the accident, he lived with his parents in Jones County. At that time, he considered that address to be his home and his residence. He subsequently obtained a job working in the motion picture industry. In performing that job, he was required to travel to locations outside of Jones County, and he would obtain lodging in those areas for reasons of economics and because of his inability to travel on a daily basis to and from Jones County to remote locales. Prior to plaintiff's filing of the present complaint, Woodard's employment required him to travel to Atlanta for the filming of a movie and to remain there for several months. During that time, he shared a furnished apartment in Fulton County with other persons. He did not list the telephone or utilities in his name. He continued to receive mail in Jones County (although he received mail at his Fulton County address also). He never registered to vote in Fulton County or took any action to change his permanent address (although he established a checking account at a local bank and obtained checks imprinted with his Fulton County address). He departed Fulton County when his employment there ended.
Under Ga. Const.1983, Art. VI, Sec. II, Par. IV, all civil cases other than those specifically excepted shall be tried in the county where the defendant resides. See Williams v. Fuller, 244 Ga. 846, 850(2), 262 S.E.2d 135.
" Pugh v. Jones, 131 Ga.App. 600, 603(1), 206 S.E.2d 650; compare OCGA § 19-2-2(b). Sorrells v. Sorrells, 247 Ga. 9, 11-12(3), 274 S.E.2d 314.
Evidence showed that Woodard's domicile was Jones County, and there is no evidence of any intent on his part to change his domicile from there to Fulton County. Consequently, the court did not err in finding that Jones County remained his legal residence for venue purposes.
2. The refusal of the court to make written findings of fact and conclusions of law was not error, as this is not required on motions such as were before it. See OCGA § 9-11-52.
3. The trial court held in effect that OCGA § 46-7-12(e), which permits joinder of the insurer in the same action against the motor carrier, does not apply to a collision involving a Georgia resident and a vehicle which is subject to Georgia PSC regulation under Title 46, where the collision occurs in another state.
This Georgia motor carrier is "subject to an action [on the bond or policy of indemnity insurance]" in Georgia by "any person"; therefore, joinder of the insurer (OCGA § 46-7-12(b) and (e)) is proper. Joinder is not prohibited merely because the collision occurred on a highway in South Carolina.
National Union Fire Ins. Co. v. Marty, 197 Ga.App. at 643 notes that several statutes in Title 46 () refer to " 'commerce carried on in this state' " and "on any public highway of this state." (Emphasis omitted.) Specifically, National Union Fire notes that OCGA § 46-7-50 provides that Article 2 of Chapter 7 of Title 46 " 'is intended to state the conditions and regulations under which motor carriers for hire other than common carriers are permitted to operate over the highways of this state.' " Id. 197 Ga.App. at 643. That case does not control this case because it is not clear from the facts whether that motor carrier was one regulated by the Georgia PSC.
In any event, the issue in this case involves not Article 2 of Title 46, Chapter 7, but involves Article 1. OCGA § 46-7-12(e) of Article 1 permits joinder of the insurer in "a cause of action arising under this article in tort or contract," and it does not restrict any such cause of action to one arising out of an occurrence on the streets or highways of this state. We have found no Code section which does.
Granted, many statutes in Title 46 refer to commerce on, and use of, Georgia highways. However, Article 1 of Title 46 regulates a Georgia carrier operating in both interstate and intrastate commerce "to the extent expressly authorized by this article." (Emphasis supplied.) OCGA § 46-7-36. The direct action statute, § 46-7-12, at (b) and (c) "expressly authorize[s]" (§ 46-7-36) the PSC to require bond (§ 46-7-12(b)) or insurance conforming to the provisions at (b) as to bonds (id. at (c)), "for the benefit of and subject to action thereon by any person who shall sustain actionable injury or loss protected [by such bond or insurance]." (Emphasis supplied.) Moreover, without regard to where an accident occurs, OCGA § 46-7-12(e) expressly authorizes suit and joinder of insurer when a cause of action arises under Article 1, § 46-7-12(b) and (c), against a motor carrier which was issued a certificate of public convenience and necessity by the Georgia PSC. So, where the motor carrier is "subject to action" in Georgia "by any person" (id. at (b)), OCGA § 46-7-12(e) "expressly authorize[s]" (see § 46-7-36) joinder without regard to whether the carrier is engaged in "commerce carried on exclusively in this state." Id.
We conclude that mere reference to use of Georgia highways in some sections of the Act does not mean that a person has a cause of action under Article 1 (§ 46-7-12(b), (c) and (e)) only if an injury occurs on Georgia highways or streets.
Moreover, a statute most pertinent to the question at hand is OCGA § 46-7-16(e), which provides: "It shall not be necessary for any motor common carrier to obtain a certificate of public convenience from the Georgia Public Service Commission when such carrier is engaged solely in interstate commerce over the public highways of this state." (Emphasis supplied.) So, the certificate of public convenience and necessity (OCGA § 46-7-3) which is what permits joinder (§ 46-7-12(e)) is required only when a carrier is engaged in commerce in other states as well as in Georgia. OCGA § 46-7-16(e). The inexorable conclusion is that a certificate is required and joinder is thus permitted under § 46-7-12(e), when a carrier is engaged...
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