Commercial Transportation

• Publication year: 2020

Commercial Transportation

Madeline E. McNeeley

Yvonne S. Godfrey

Elizabeth M. Brooks

Joshua H. Dorminy

Stephen G. Lowry

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Commercial Transportation

by Madeline E. McNeeley^*

Yvonne S. Godfrey^**

Elizabeth M. Brooks^***

Joshua H. Dorminy^****

and Stephen G. Lowry^*****

I. Introduction

Commercial transportation involves all of the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in Georgia commercial-transportation law during the period from June 1, 2019, through May 31, 2020.¹

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II. Trucking and Other Commercial Motor Vehicles

The Georgia statutes governing commercial motor vehicles underwent no significant changes during the Survey period, but a divided panel of the Georgia Court of Appeals issued an opinion that, while only physical precedent, provides an interesting analysis of Georgia's direct-action statutes. Furthermore, the significant practical effects of the novel-coronavirus outbreak on the commercial trucking industry spurred notable emergency responses by Georgia's Executive Branch.

A. Direct Actions Against Insurers of Interstate Motor Carriers

In Daily Underwriters of America v. Williams,² the Georgia Court of Appeals issued an important decision concerning a plaintiff's ability to sue under Georgia's direct-action statutes.³ The direct-action statutes permit a plaintiff involved in an accident with a motor carrier to sue both the motor carrier and its insurer in the same cause of action, providing an exception to the general rule that a plaintiff may not sue a liability insurer as a defendant in an action against its insured.⁴ The question before the court of appeals in Daily Underwriters was whether Georgia law permitted the plaintiffs' direct actions against the motor carrier's insurer under O.C.G.A. § 40-1-112(c),⁵ which the defendant insurer alleged only permits such suits when the insured is functioning as an "intrastate," not "interstate," motor carrier.⁶

In Daily Underwriters, the plaintiffs, Veronica and Marleaux Williams, were injured after a tractor-trailer struck their car. Each brought a separate action, naming the driver of the tractor-trailer, the trucking company that owned the tractor-trailer, and Daily Underwriters of America (Daily Underwriters), the trucking company's insurer. In the complaints, the Williamses cited O.C.G.A. § 40-1-112 as authority for their suits against Daily Underwriters. Daily Underwriters moved for summary judgement, arguing that O.C.G.A. § 40-1-112 permitted direct actions against insurers for intrastate motor carriers only, and therefore precluded suit against it in this case, as its insured was engaged in interstate transportation at the time.⁷ The Williamses cited Georgia's other direct-action statute, O.C.G.A. § 40-2-140,⁸ in their response as a basis for their suits against Daily Underwriters, and the trial court

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denied summary judgment.⁹ On interlocutory review, the court of appeals affirmed the trial court's order.¹⁰

Georgia's two direct-action statutes are distinct, but often conflated. The court of appeals began by applying the in pari materia principles of statutory construction to construe O.C.G.A. §§ 40-1-112(c)¹¹ and 40-1-126¹² together.¹³ Section 40-1-112(c), the court determined, "expressly allows an injured party to file a direct action against a motor carrier's insurance carrier for causes of action arising 'under this part,' i.e., Title 40, Chapter 1, Article 3, Part 2."¹⁴ Section 40-1-126, meanwhile, states that "[t]he provisions of this part do not apply to purely interstate commerce nor to carriers exclusively engaged in interstate commerce."¹⁵ Thus, the "plain language of O.C.G.A. § 40-1-126 evinces the legislative intent that the direct action provision of O.C.G.A. § 40-1-112(c) does not apply to purely interstate commerce or to a carrier engaged exclusively in interstate commerce."¹⁶

With this established, the court of appeals went on to determine that the defendant motor carrier was engaged in interstate commerce at the time of the accident, as it was traveling from Georgia to pick up a load in North Carolina that was then to be dropped off in Georgia.¹⁷ This, the court reasoned, evidenced that the trip at the time the accident occurred was one of interstate commerce, and therefore not permitted by O.C.G.A. § 40-1-112(c), the authority cited by the Williamses in their complaints for the direct action against Daily Underwriters.¹⁸ The court of appeals, however, did not end its analysis there.

Rather, the court looked to the direct-action statute cited by plaintiffs in their response to the summary judgment motion, O.C.G.A. § 40-2-140(d)(4).¹⁹ Daily Underwriters argued that the court should not consider this statute as it was cited in a response brief and not the Williamses' complaint.²⁰ The court disagreed with this argument, stating, "[w]hile it is often good advocacy to cite supporting statutory authority in a complaint, we are aware of no authority for the proposition that such citations are required and the appellant has cited no such

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authority."²¹ The court determined that Daily Underwriters had adequate notice of the plaintiffs' claims as alleged in their complaints, and the court would "not allow an overbroad and unduly rigid conception of waiver to lead us to create an idiosyncratic precedent that disregards controlling legal authority."²² The court then cited provisions of O.C.G.A. § 40-2-140 that explicitly authorize suit against a motor carrier and its insurer regardless of whether it arose in tort or contract if that motor carrier engaged in interstate commerce.²³ Thus, the court held, the Williamses' claims against Daily Underwriters were permitted by O.C.G.A. § 40-2-140(d)(4).²⁴ Notably, Senior Judge Phipps dissented from the majority's holding as to the § 40-2-140 issue, explaining he would have ruled in favor of Daily Underwriters because citing the statute for the first time in the summary judgment response should not be sufficient to survive summary judgment.²⁵

Although this opinion is physical precedent only, it provides important insight into the judges' views on two important issues of Georgia law: its pleading standards and its contrasting direct-action statutes.

B. Effects of the Novel Coronavirus/COVID-19 Pandemic

In the wake of the novel coronavirus that became the source of the COVID-19 pandemic in early 2020, many shoppers in Georgia were greeted by empty shelves in their local grocery stores.²⁶ Many Georgians feared being confined to their homes without vital paper products and food and began to stockpile essential goods.²⁷ This put a corresponding strain on the local and national supply chains.

In response to the strain on the supply chain, in March of 2020, the Federal Motor Carrier Safety Administration (FMCSA) issued a national emergency declaration to provide hours of service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the pandemic.²⁸ This is the first time in history that the FMCSA has

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issued nationwide relief. The declaration provides for regulatory relief for commercial vehicle operations intending to supply: medical supplies and equipment related to testing, diagnosis and treatment of COVID-19; supplies and equipment necessary for healthcare workers; food for emergency restocking of stores; equipment and supplies necessary to establish temporary housing and quarantine facilities related to COVID-19; and personnel to provide medical or other emergency services.²⁹

The emergency declaration grants motor carriers and drivers relief from Parts 390 through 399 of Title 49 of the Code of Federal Regulations.³⁰ In effect, the declaration relaxes the rest requirements found in federal regulations, allowing drivers to be on the road for longer periods of time.³¹ Drivers are still required to comply with the rest periods following the completion of the delivery of the essential goods or personnel.³² The declaration further relaxes the equipment and standards necessary for operating commercial trucks with longer containers and multiple containers and extends the period of time for holders of commercial driver's licenses to renew their licenses.³³

In Georgia, Governor Brian Kemp issued an executive order on March 14, 2020, that declared a statewide "public health state of emergency."³⁴ Among other actions, the Order suspended the federal regulations limiting hours of service for drivers of commercial vehicles.³⁵ Going beyond the federal declaration, Governor Kemp's Order provides that no motor carrier will require or allow an ill or fatigued driver to operate a motor vehicle and requires at least ten consecutive hours off-duty for any driver who notifies a motor carrier that they are fatigued or ill.³⁶ Governor Kemp's Order also relaxed the restrictions on the maximum weight, height, and length of commercial vehicles operating on Georgia's public highways for the purpose of providing disaster relief and preparation.³⁷ The executive order extends the maximum weight limit for trucks transporting essential materials on Georgia's roads from 80,000 pounds to 95,000 pounds.³⁸ As of the time of this writing, these provisions have been extended through August 11, 2020.³⁹

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While the relaxation of the federal and state regulations will eventually expire, the COVID-19 pandemic will likely have lasting effects on the commercial motor vehicle industry and the regulation of the industry. It remains to be seen what, if any, impact the relaxation of these regulations have on wrecks involving commercial motor vehicles during the pendency of the crisis and what future impacts will be felt in the litigation of cases arising out of commercial vehicle wrecks and the future of commercial vehicle regulations.

III. Aviation

The general framework of aviation law is significantly shaped and determined by...