Lawyer tools- Georgia’s law helps injured from tractor trailers

A lawyer seeking to help someone injured by a truck or tractor trailer has some tools to aid settlement or recovery from the trucking company or insurance company.  Under Georgia’s “Direct Action” statute, a lawyer can join or add the insurance company to a lawsuit against a trucking company (otherwise referred to as a “motor carrier”).  In a typical car accident, a lawyer cannot name the insurance company in a lawsuit.  In fact, the mere mention of insurance in a typical auto accident case will result in a mistrial.  The situation is very different in a lawsuit against a tractor trailer or other commercial truck under Georgia’s Direct Action Statute.  This technical brief will address the Direct Action Statute and its application in Georgia.

A Direct Cause of Action against the Insurer

Georgia Law permits a plaintiff to join in the same action the motor carrier and the insurance carrier, whether arising out of tort or contract. O.C.G.A. § 46-7-12(b). As such, the law gives plaintiffs a direct cause of action against the insurer.  This direct action statute establishes an independent cause of action against the motor carrier’s insurer on behalf of a member of the public who has been injured by the carrier’s negligence.  Thomas v. Bobby Stevens Hauling Contractors, Inc. et al., 165 Ga. App. 710, 711; 302 S.E.2d 586, 586 (Ga. App. 1983).  This direct action statute provides a special remedy for those injured by motor carriers, allowing them to file a direct action against the motor carrier’s insurance company.

The Insurance Company Acts as a Surety

In a direct action against the insurer, the cause of action is not on the underlying tort (or negligence) committed by the motor carrier, but is on the contract of insurance.  Thomas, 165 Ga. App. at 711.  “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.”  Id. “The 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.”  Thomas, 165 Ga. App. at 711, citing  Farley v. Continental Ins. Co., 150 Ga. App. 389, 390 (1979). Hence, a plaintiff can bring a direct action against an insurer as a third party beneficiary on the proceeds of the policy.  Thomas, 165 Ga. App. at 714.  The purpose of permitting joinder of the insurance company in a claim against a 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.  Occidental Fire and Casualty Co. of North Carolina v. Johnson, et al, 302 Ga. App 677; 691 S.E.2d 589 (Ga. App. 2010).

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