Commercial Transportation

Publication year2020

Commercial Transportation

Madeline E. McNeeley

Yvonne S. Godfrey

T. Peyton Bell

Stephen G. Lowry

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Commercial Transportation: A Two-Year Survey

by Madeline E. McNeeley* Yvonne S. Godfrey** T. Peyton Bell*** 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 and legislative developments in Georgia commercial-transportation law during the period from June 1, 2017 through May 31, 2019.1

Three of the areas discussed here—commercial motor vehicles, aviation, and rail—are subject to heavy federal regulation due to their

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large effects on interstate commerce. Accordingly, motor-carrier and railroad law primarily saw developments pertaining to state procedure and in the interactions between state and federal law, while state aviation law primarily focused on Georgia's efforts both to regulate and facilitate the development of unmanned aircraft and commercial space flight. This Article also discusses the nascent industry in "last mile" rentals of shareable dockless electric scooters and electric bicycles. These businesses have exploded onto the scene just in the last two or three years and have sent local and state lawmakers rushing to address the issues they present. Finally, this Article concludes with a brief section on two more areas being "disrupted" by Silicon Valley entrepreneurs: passenger transportation for hire, which saw a useful appellate opinion on when an individual's automobile insurance may stop applying to trips with paying passengers, and autonomous-vehicle technology.

II. Trucking and Commercial Motor Vehicles

A. Venue for Motor Carrier Litigation

In Blakemore v. Dirt Movers, Inc.,2 the Georgia Court of Appeals considered the competing venue provisions under the Georgia Business Corporation Code, O.C.G.A. § 14-2-510(b),3 and the Georgia Motor Carrier Act, O.C.G.A. § 40-1-117(b).4 In an action against a motor-carrier defendant, the Georgia Motor Carrier Act makes venue proper in the county where the tort occurred.5 Pursuant to the Georgia Business Corporation Code, venue in a tort action against a domestic corporate defendant likewise is proper where the tort occurred, but if the defendant does not have an office in that county, it has the right to remove the action to the county where it maintains its principal place of business.6

In Blakemore, the plaintiff filed a wrongful death action against Dirt Movers, Dirt Movers's driver, and Dirt Movers's liability insurance carrier in Bibb County State Court following the death of the plaintiff's daughter in a motor vehicle accident that occurred in Bibb County. All parties agreed that Dirt Movers was a Georgia corporation registered with the Federal Motor Carrier Safety Administration that maintained its principal place of business and registered agent in Jeff Davis

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County. The plaintiff's complaint asserted that because the accident happened in Bibb County, venue was proper in Bibb County under the Georgia Motor Carrier Act. Dirt Movers filed a notice of removal to Jeff Davis County based on the Georgia Business Corporation Code. The trial court denied the plaintiff's motion to remand the case back to Bibb County, but granted the plaintiff a certificate of immediate review.7

On review, the Georgia Court of Appeals noted that the Georgia Business Corporation Code's venue provision limits a corporate defendant's right of removal to those cases where venue is based solely on O.C.G.A. § 14-2-510(b)(4), which provides:

In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.8

"Therefore, under the plain language of O.C.G.A. § 14-2-510(b)(4), a corporation cannot remove an action to the county where its principal place of business is located if there is any basis for venue other than O.C.G.A. § 14-2-510(b)(4)."9 Here, although the plaintiff filed the action in the county where the cause of action arose, she based venue on the provisions of O.C.G.A. § 40-1-117(b), not solely on the similar grounds in O.C.G.A. § 14-2-510(b)(4).10 Because O.C.G.A. § 40-l-117(b) provided an independent basis for venue in Bibb County, the court held that venue was proper in Bibb County and the defendant could not remove the case to Jeff Davis County.11

B. Direct Actions Against Motor Carriers' Insurers

The appellate courts rendered two important decisions in this survey period interpreting Georgia's direct-action statutes, O.C.G.A. §§ 40-1-11212 and 40-2-140,13 which permit the plaintiff to name a motor carrier's insurance provider as a defendant in an action against the motor carrier.14

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In RLI Insurance Company v. Duncan,15 the Georgia Court of Appeals considered whether a motor carrier's excess insurance carrier could be named as a defendant under the direct-action statutes. Following a motor vehicle accident involving a tractor-trailer, the plaintiff sued the truck driver, the trucking company, and the trucking company's insurer, RLI Insurance Company. The defendant trucking company was self-insured up to $750,000 but failed to register as self-insured. RLI Insurance filed a motion to dismiss, claiming it was an excess carrier and, therefore, should be dismissed. The trial court denied RLI's motion to dismiss because the defendant trucking company failed to register itself as self-insured and because, having issued the trucking company a surety bond, RLI was the company's primary insurer.16 The Georgia Court of Appeals reversed on interlocutory appeal.17

The court of appeals noted the existence of a long line of cases holding that the direct-action statutes do not authorize actions against an insured's excess insurer.18 Because statutes permitting a direct action against an insurance carrier are in derogation of the common law, the terms of those statutes are strictly construed.19 Also, O.C.G.A. § 40-1-112(b) allows a motor carrier to self-insure in lieu of obtaining an indemnity policy when the financial ability of the motor carrier warrants.20 Even though the trucking company failed to register as self-insured, the court determined that the terms of the RLI insurance policy still only required RLI to pay for damages in excess of the trucking company's self-insured limits, so RLI only provided excess insurance and could not be added as a named defendant to the lawsuit.21

Finally, the Georgia Supreme Court considered whether provisions of the federal Liability Risk Retention Act (LRRA)22 preempted Georgia's direct-action statutes so as to prevent risk retention groups from being named as parties in actions against their insureds.23 The defendant motor carrier in Reis v. OOIDA Risk Retention Group, Inc. was insured through ooIDA, a foreign liability risk retention group created

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pursuant to the guidelines of the LRRA. The plaintiffs filed their lawsuit against the defendant driver, the corporate motor carrier, and OOIDA as the motor carrier's insurer. OOIDA filed a motion for summary judgment arguing the direct-action statutes did not apply for two reasons. First, OOIDA argued the direct-action statutes did not contemplate suits against risk retention groups. Second, OOIDA argued the LRRA preempted Georgia's direct-action statutes.24

The trial court concluded that the LRRA preempted the direct-action statutes and, therefore, OOIDA could not be named as a defendant.25 The Georgia Supreme Court agreed.26 The court explained that the federal legislation authorizing the creation of risk retention groups, 15 U.S.C. § 3902(a)(1), specifically states that "a risk retention group is exempt from any State law . . . to the extent that such law . . . would make unlawful, or regulate, directly or indirectly, the operation of a risk retention group . . . ."27 Essentially, the LRRA provides that risk retention groups are exempt from state laws relating to the operation of the risk retention groups.28 States are specifically allowed to enforce their own financial-responsibility laws on out-of-state risk retention groups to demand financial soundness or solvency, and the plaintiffs urged that the direct-action statutes are essentially financial-responsibility laws.29 The supreme court, however, determined that, because the direct-action statutes would subject foreign risk retention groups to lawsuits, liability, and damages, they would directly and indirectly regulate the groups' operations.30 Therefore, the direct-action statutes are preempted by the LRRA, and risk retention groups organized through the LRRA cannot be named as direct-action defendants pursuant to the Georgia Motor Carrier Act.31

III. Aviation

The general landscape of aviation law is, for the most part, shaped and determined by federal regulations32 and, in some cases,

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international treaties.33 In fact, the stated intention of Georgia's aviation statutes is "to coincide with the policies, principles, and practices established by the Federal Aviation Act of 1958 and all amendments thereto."34 As a result, federal courts determine much of the case law regulating commercial aviation,35 as further reflected by the recent Georgia cases discussed below. However, developments in legislation have begun to shape the legal aviation landscape in Georgia.

A. Case Law

In Avery v. Paulding County Airport Authority,36 the Georgia Court of Appeals addressed four appeals from three related declaratory-judgment actions concerning commercial aviation.37 The appeals all pertained to the Paulding County Airport Authority (PCAA) and its actions related to applying for a commercial "Airport Operating Certificate," one of the many requirements for commercial aviation imposed by the...

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