Mornay v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA

• Decision Date: 11 March 2015
• Docket Number: No. A14A2307.,A14A2307.
• Citation: 769 S.E.2d 807,331 Ga.App. 112
• Parties: MORNAY et al. v. NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA.
• Court: Georgia Court of Appeals

331 Ga.App. 112

769 S.E.2d 807

MORNAY et al.

v.NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA.

No. A14A2307.

Court of Appeals of Georgia.

March 11, 2015.

Certiorari Denied June 15, 2015.

Burkey Law Firm, Frederick Doren Burkey, Atlanta, for Appellants.

David Cole Rhodes, Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Matthew Phillip Lazarus, Atlanta, for Appellee.

Opinion

MILLER, Judge.

Kenneth Mornay, Sr., individually and as the administrator of the Estate of Sylvia Mornay, Sharon Marie Mornay Bright, and Karen Ann Thomas (collectively “the Plaintiffs”) filed suit against Southeastrans, Inc. and its liability insurer, National Union Fire Insurance Company of Pittsburgh, PA (“National Union”), for claims arising out of Sylvia Mornay's death. The Plaintiffs named National Union as a party pursuant to OCGA § 40–1–112, which allows plaintiffs to file a direct action against the insurers of motor carriers. National Union moved for summary judgment on the ground that the relevant vehicle fell within an exemption to the motor carrier definition under OCGA § 40–1–100(12)(B)(vii). The trial court granted National Union's motion. The Plaintiffs appeal, contending that the trial court erred in concluding that the subject vehicle was exempt from the definition of a motor carrier. For the reasons that follow, we affirm.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law. We review de novo a trial court's [grant or] denial of summary judgment, construing the evidence in a light most favorable to the nonmoving party.

(Footnotes omitted.) Occidental Fire & Cas. Co. of North Carolina v. Johnson, 302 Ga.App. 677, 691 S.E.2d 589 (2010).

So viewed, the evidence shows that the Department of Community Health (“DCH”) contracted with Southeastrans to act as a broker of non-emergency medical transportation to Medicaid members in Georgia. In turn, Southeastrans contracted with Samuel Maddy d/b/a Drop–4–Care Transportation to provide transportation services pursuant to Southeastrans's DCH contract.

On April 19, 2010, Southeastrans dispatched a Drop–4–Care van to transport Sylvia Mornay from her nursing home to a medical appointment. During transport, the Drop–4–Care van, a 2002 Ford Ecoline E–350, stopped abruptly, causing Mornay to flip over in her wheel chair, resulting in injuries that ultimately led to her death. At the time of the accident, National Union provided automobile liability insurance to Southeastrans.

The Plaintiffs sued Southeastrans and its insurers, including National Union. The trial court granted summary judgment to National Union, finding that the Plaintiffs could not bring a direct action against National Union under OCGA § 40–1–112 because the Drop–4–Care van fell within an exemption to the motor carrier definition under OCGA § 40–1–100(12)(B) (vii).¹

On appeal, the Plaintiffs contend that the trial court erred in concluding that the Drop–4–Care van fell within the motor carrier exemption under OCGA § 40–1–100(12)(B)(vii). We disagree.

Under the Georgia Motor Carrier Act, “[i]t shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.”OCGA § 40–1–112(c).²

The purpose of permitting joinder of the insurance company in a claim against a common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier's negligence.... The intent of this [S]tate's motor carrier laws is that the insurer is to stand in the shoes of the motor carrier and be liable in any instance of negligence where the motor carrier is liable.

(Punctuation and footnotes omitted.) Johnson, supra, 302 Ga.App. at 677–678, 691 S.E.2d 589. The direct action statute is in derogation of common law, and its terms require strict compliance. See Werner Enterprises, Inc. v. Stanton, 302 Ga.App. 25, 26, 690 S.E.2d 623 (2010).

A direct action cannot be maintained against a motor carrier's insurance company where the vehicle involved in the incident is exempted from the definition of a “motor carrier.” See Smith v. Southern Gen. Ins. Co., 222 Ga.App. 582, 583(3), 474 S.E.2d 745 (1996).

The burden of proof as to whether [an] exemption is applicable lies with the party claiming it, and there is no burden on the opposing party to prove that the motor vehicle is not within the exemption. Although at summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party's case, here [National Union] has the burden of proof with respect to the exemption and cannot merely rely upon the absence of evidence in the record disproving that the exemption applies.

(Punctuation and footnote omitted.) Johnson, supra, 302 Ga.App. at 678–679, 691 S.E.2d 589.

The term “motor carrier” shall not include privately owned and operated vehicles “capable of transporting not more than ten persons for hire when such vehicles are used exclusively to transport persons who are elderly, disabled, en route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication.” OCGA § 40–1–100(12)(B)(vii).

In this case, the Drop–4–Care van in question was originally designed to seat at least 12 passengers. However, the van was retrofitted to transport a wheelchair and, as a result of the modifications, was only capable of transporting one passenger in a wheelchair and three ambulatory passengers. Additionally, although Drop–4–Care advertised transportation to and from non-medical events, such as weddings, errands, and other outings, Drop–4–Care exclusively provided transportation for non-emergency medical treatment through its contract with Southeastrans. Notwithstanding this evidence, the Plaintiffs argue that National Union did not meet the requirements of OCGA § 40–1–100(12)(B)(vii).

1. The Plaintiffs first contend that the statutory exemption did not apply because the van was not used exclusively for medical transport, based on the testimony from Drop–4–Care's corporate representative that the van could be used for non-medical transport. Regardless of whether Drop–4–Care offered other services, however, the Plaintiffs provided no evidence refuting the testimony that Drop–4–Care used the van in question only for medical transport. Accordingly, this argument is without merit.

2. The Plaintiffs next contend that the van did not meet the statutory exemption because it transported people who were not elderly and disabled, citing evidence that Drop–4–Care was contractually obligated to be able to transport children. This argument also lacks merit.

The pertinent statutory language exempts from the definition of a motor carrier any vehicle “used exclusively to transport persons who are elderly, disabled, en route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication.” (Emphasis supplied.) OCGA § 40–1–100(12)(B)(vii). This language is phrased in the disjunctive. “[W]here a legislative provision is phrased in the disjunctive, it must be so construed absent a clear indication that a disjunctive construction is contrary to the legislative intent.” (Citation omitted.) Gearinger v. Lee, 266 Ga. 167, 169(2), 465 S.E.2d 440 (1996). Applying this rule of construction, the use of the disjunctive in OCGA § 40–1–100(12)(B)(vii) indicates that a vehicle is exempted from classification as a motor carrier if the vehicle transports persons who are elderly, disabled, or en...