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Werner Enterprises v. Stanton

O.C.G.A. § 46-7-12.1 did not authorize direct actions against excess liability insurers.

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In these cases consolidated for appeal, we granted Liberty Mutual Insurance Company’s Liberty Mutual applications for interlocutory review following the trial court’s denial of its motions for summary judgment. Because the trial court erred in concluding that former OCGA § 46-7-12.1 authorized a direct action against an excess insurer, we reverse in both cases. The record reveals that in 2008, the plaintiffs1 filed suit against Werner Enterprises, Inc. Werner, Rafael Ferrer, and Liberty Mutual for the deaths of Mary Gordy and Charles Evans following a 2006 accident involving a freight truck driven by Ferrer, and a motorcycle operated by Evans with Gordy as a passenger. Liberty Mutual moved for summary judgment arguing that the plaintiffs could not bring a direct action under former OCGA § 46-7-12.12 because it is an excess insurer and not a primary liability insurer. Werner was self-insured with $1 million in coverage. The policy issued to Werner by Liberty Mutual was an “excess policy” providing $4 million of coverage in excess of Werner’s self-insurance. The trial court denied Liberty Mutual’s motion for summary judgment holding that the direct action statute, OCGA § 46-7-12.1, “only references ‘the insurance carrier,’ ” and that to “ exclude any excess carrier would . . . rewrite the statute.”

Former OCGA § 46-7-12.1 prescribed the requirement of insurance in order to obtain a permit, and allowed the state revenue commissioner to “permit self-insurance, in lieu of a policy of indemnity insurance.” OCGA § 46-7-12.1 b. This Code section also permitted a plaintiff to file suit against a motor carrier’s insurer before obtaining a judgment against the insured: “it shall be permissible under this article for any person having a cause of action arising under this article to join in the same action the motor common or motor contract carrier and the insurance carrier, whether arising in tort or contract.” OCGA § 46-7-12.1 c.

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