PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 96-8998 _______________ D. C. Docket No. 1:95-CV-1627-CC
CRAIG C. DeHART; JEANNIE I. DeHART, As the parents and Natural Guardians and Conservators of Adam Shane DeHart,
Plaintiffs-Appellees,
versus
LIBERTY MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
______________________________
Appeal from the United States District Court for the Northern District of Georgia ______________________________ (January 23, 1998)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
* Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida sitting by designation as a member of this panel when this appeal was argued and taken under submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge of the Eleventh Circuit. PER CURIAM:
CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME
COURT OF GEORGIA PURSUANT TO ARTICLE VI, SECTION VI,
PARAGRAPH IV, OF THE GEORGIA CONSTITUTION.
TO THE SUPREME COURT OF GEORGIA AND THE
HONORABLE JUSTICES THEREOF:
In this action in diversity, Craig C. DeHart and Jeannie I.
DeHart (“the DeHarts”) seek a declaration that a liability insurance
policy issued by Liberty Mutual Insurance Company (“Liberty
Mutual”) to Senn Trucking Company of Georgia, Inc. (“Senn
Trucking Company”) was in effect on May 26, 1988; on that date, a
Senn Trucking Company employee caused an automobile collision
to occur that resulted in catastrophic injury to the DeHarts’ son,
Adam Shane DeHart. Because this case presents unresolved
questions of Georgia law that are determinative of this appeal, we
defer our decision pending certification of several issues posed by
2 the parties to the Supreme Court of Georgia. See Gossard v. Adia
Services, Inc., 120 F.3d 1229, 1230 (11th Cir. 1997).
I. FACTS
For purposes of the issues presented for certification, the
following facts underlying this appeal are undisputed: The Georgia
Public Service Commission (“GPSC”) has promulgated regulations
providing that motor carrier liability insurance policies properly
registered with the GPSC are continuous until not less than thirty
days after the GPSC receives actual written notice that such
coverage will terminate. See R1-17, Exh. F. The regulations further
require that insurers certify coverage by filing a “Form E” and
provide notice of termination of coverage by filing a “Form K.” See
R1-9 at 2 (describing certification and cancellation procedures under
GPSC regulations). Under Georgia law, a person having a cause of
action in tort or contract against a motor carrier may join in the same
3 action both the motor carrier and its insurance carrier. See O.C.G.A.
§ 46-7-12(e).
Liberty Mutual filed Form E certificates of liability insurance
coverage with the GPSC on June 26, 1986, certifying that it provided
liability insurance coverage for Senn Trucking Company. The
language of the policy specified that the term of the policy was in
effect from June 26, 1986, through May 26, 1987. On May 27, 1987,
the policy issued by Liberty Mutual to Senn Trucking Company
expired by its own terms. Liberty Mutual, however, did not file a
Form K with the GPSC advising that the policy had been terminated.
On that same date, Senn Trucking Company acquired a liability
insurance policy from National Continental Insurance Company.
On May 26, 1988, an automobile collision involving a Senn
Trucking Company vehicle and an automobile in which Adam Shane
DeHart was a passenger occurred on a highway in North Carolina.
As previously stated, this accident resulted in serious bodily injury to
DeHart. At the time of this incident, Liberty Mutual’s Form E
4 providing notice of its coverage of Senn Trucking Company
continued to be on file with the GPSC; at the same time, Senn
Trucking Company also received coverage purchased from National
Continental Insurance Company.
The DeHarts initially filed suit for damages in state court
against, inter alia, Senn Trucking Company, National Continental
Insurance Company, and Liberty Mutual. The DeHarts and Liberty
Mutual each moved for summary judgment, which was denied by the
trial court. The Georgia Court of Appeals reversed as to the denial
of summary judgment on behalf of Liberty Mutual and, after
determining that it was bound by National Union Fire Ins. Co. v.
Marty, 197 Ga. App. 642, 399 S.E.2d 260 (Ga. Ct. App. 1990)1,
resolved that Liberty Mutual had been joined improperly under
Georgia law because the accident had occurred outside the state of
1 In Marty, the Georgia Court of Appeals decided that Georgia law authorizing joinder of motor carriers and their respective liability insurers in a direct prejudgment action did not apply when the accident giving rise to suit had occurred outside the state of Georgia. See Marty, 197 Ga. App. at 643-44, 399 S.E.2d at 262 (where accident occurred in Florida, “joinder of the motor carrier’s insurer was not authorized by Georgia’s direct action statute.”).
5 Georgia. See Liberty Mut. Ins. Co. v. DeHart, 206 Ga. App. 858,
426 S.E.2d 592 (Ga. Ct. App. 1992).
The DeHarts subsequently filed the instant action in federal
district court seeking declaratory relief in the form of a determination
as to whether Liberty Mutual was liable to satisfy all or part of the
judgment sought against Senn Trucking Company. Specifically, the
DeHarts requested that the court decide whether Georgia’s
regulatory scheme concerning continuous coverage in the absence
of official notice of termination applied in this instance; that is,
whether Liberty Mutual’s liability insurance policy “extended by
operation of law, beyond the initial term thereof, and so as to include
the date of loss in this case, by reason of [Liberty Mutual’s] . . .
failure to file an effective notice of cancellation of the said liability
insurance policy with the Georgia PSC.” R1-9 at 3. Again, both
parties moved for summary judgment. The district court reasoned
that Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (Ga. Ct.
App. 1993) (en banc), a case decided by the Georgia Court of
6 Appeals subsequent to Marty, dictated that, notwithstanding the
expiration of Liberty Mutual’s policy with Senn Trucking Company,
Liberty Mutual’s failure to file the requisite Form K with the GPSC
rendered the policy effective as to the general public on the date of
the accident.2 As a result, the court concluded that Liberty Mutual
was subject to liability for damages in the action against Senn
Trucking Company and granted summary judgment in favor of the
DeHarts.
II. CONTENTIONS
On appeal, Liberty Mutual argues that the applicable statutory
language establishing the GPSC and prescribing its jurisdiction
expressly limits its regulatory reach to the public highways of the
state of Georgia.
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 96-8998 _______________ D. C. Docket No. 1:95-CV-1627-CC
CRAIG C. DeHART; JEANNIE I. DeHART, As the parents and Natural Guardians and Conservators of Adam Shane DeHart,
Plaintiffs-Appellees,
versus
LIBERTY MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
______________________________
Appeal from the United States District Court for the Northern District of Georgia ______________________________ (January 23, 1998)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
* Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida sitting by designation as a member of this panel when this appeal was argued and taken under submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge of the Eleventh Circuit. PER CURIAM:
CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME
COURT OF GEORGIA PURSUANT TO ARTICLE VI, SECTION VI,
PARAGRAPH IV, OF THE GEORGIA CONSTITUTION.
TO THE SUPREME COURT OF GEORGIA AND THE
HONORABLE JUSTICES THEREOF:
In this action in diversity, Craig C. DeHart and Jeannie I.
DeHart (“the DeHarts”) seek a declaration that a liability insurance
policy issued by Liberty Mutual Insurance Company (“Liberty
Mutual”) to Senn Trucking Company of Georgia, Inc. (“Senn
Trucking Company”) was in effect on May 26, 1988; on that date, a
Senn Trucking Company employee caused an automobile collision
to occur that resulted in catastrophic injury to the DeHarts’ son,
Adam Shane DeHart. Because this case presents unresolved
questions of Georgia law that are determinative of this appeal, we
defer our decision pending certification of several issues posed by
2 the parties to the Supreme Court of Georgia. See Gossard v. Adia
Services, Inc., 120 F.3d 1229, 1230 (11th Cir. 1997).
I. FACTS
For purposes of the issues presented for certification, the
following facts underlying this appeal are undisputed: The Georgia
Public Service Commission (“GPSC”) has promulgated regulations
providing that motor carrier liability insurance policies properly
registered with the GPSC are continuous until not less than thirty
days after the GPSC receives actual written notice that such
coverage will terminate. See R1-17, Exh. F. The regulations further
require that insurers certify coverage by filing a “Form E” and
provide notice of termination of coverage by filing a “Form K.” See
R1-9 at 2 (describing certification and cancellation procedures under
GPSC regulations). Under Georgia law, a person having a cause of
action in tort or contract against a motor carrier may join in the same
3 action both the motor carrier and its insurance carrier. See O.C.G.A.
§ 46-7-12(e).
Liberty Mutual filed Form E certificates of liability insurance
coverage with the GPSC on June 26, 1986, certifying that it provided
liability insurance coverage for Senn Trucking Company. The
language of the policy specified that the term of the policy was in
effect from June 26, 1986, through May 26, 1987. On May 27, 1987,
the policy issued by Liberty Mutual to Senn Trucking Company
expired by its own terms. Liberty Mutual, however, did not file a
Form K with the GPSC advising that the policy had been terminated.
On that same date, Senn Trucking Company acquired a liability
insurance policy from National Continental Insurance Company.
On May 26, 1988, an automobile collision involving a Senn
Trucking Company vehicle and an automobile in which Adam Shane
DeHart was a passenger occurred on a highway in North Carolina.
As previously stated, this accident resulted in serious bodily injury to
DeHart. At the time of this incident, Liberty Mutual’s Form E
4 providing notice of its coverage of Senn Trucking Company
continued to be on file with the GPSC; at the same time, Senn
Trucking Company also received coverage purchased from National
Continental Insurance Company.
The DeHarts initially filed suit for damages in state court
against, inter alia, Senn Trucking Company, National Continental
Insurance Company, and Liberty Mutual. The DeHarts and Liberty
Mutual each moved for summary judgment, which was denied by the
trial court. The Georgia Court of Appeals reversed as to the denial
of summary judgment on behalf of Liberty Mutual and, after
determining that it was bound by National Union Fire Ins. Co. v.
Marty, 197 Ga. App. 642, 399 S.E.2d 260 (Ga. Ct. App. 1990)1,
resolved that Liberty Mutual had been joined improperly under
Georgia law because the accident had occurred outside the state of
1 In Marty, the Georgia Court of Appeals decided that Georgia law authorizing joinder of motor carriers and their respective liability insurers in a direct prejudgment action did not apply when the accident giving rise to suit had occurred outside the state of Georgia. See Marty, 197 Ga. App. at 643-44, 399 S.E.2d at 262 (where accident occurred in Florida, “joinder of the motor carrier’s insurer was not authorized by Georgia’s direct action statute.”).
5 Georgia. See Liberty Mut. Ins. Co. v. DeHart, 206 Ga. App. 858,
426 S.E.2d 592 (Ga. Ct. App. 1992).
The DeHarts subsequently filed the instant action in federal
district court seeking declaratory relief in the form of a determination
as to whether Liberty Mutual was liable to satisfy all or part of the
judgment sought against Senn Trucking Company. Specifically, the
DeHarts requested that the court decide whether Georgia’s
regulatory scheme concerning continuous coverage in the absence
of official notice of termination applied in this instance; that is,
whether Liberty Mutual’s liability insurance policy “extended by
operation of law, beyond the initial term thereof, and so as to include
the date of loss in this case, by reason of [Liberty Mutual’s] . . .
failure to file an effective notice of cancellation of the said liability
insurance policy with the Georgia PSC.” R1-9 at 3. Again, both
parties moved for summary judgment. The district court reasoned
that Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (Ga. Ct.
App. 1993) (en banc), a case decided by the Georgia Court of
6 Appeals subsequent to Marty, dictated that, notwithstanding the
expiration of Liberty Mutual’s policy with Senn Trucking Company,
Liberty Mutual’s failure to file the requisite Form K with the GPSC
rendered the policy effective as to the general public on the date of
the accident.2 As a result, the court concluded that Liberty Mutual
was subject to liability for damages in the action against Senn
Trucking Company and granted summary judgment in favor of the
DeHarts.
II. CONTENTIONS
On appeal, Liberty Mutual argues that the applicable statutory
language establishing the GPSC and prescribing its jurisdiction
expressly limits its regulatory reach to the public highways of the
state of Georgia. As a result, Liberty Mutual contends, the
continuous coverage regulations at issue here are not applicable to
extra-territorial operations of a motor carrier certified by the GPSC.
2 The parties agree that Marty and Woodard are in direct conflict.
7 In support of this proposition, Liberty Mutual suggests that Georgia
statutory and decisional law implicitly have restricted the jurisdiction
of the GPSC to the regulation of common carriers upon the
highways of this state. For instance, Liberty Mutual points to
statutory language establishing the regulatory power of the GPSC:
[T]he Commission is vested with power to regulate the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire by motor vehicle on any public highway of this state.
O.C.G.A. § 46-7-2. Liberty Mutual additionally notes a statutory
distinction between interstate and intrastate commerce as evidence
that regulations promulgated by the GPSC were intended to have no
extra-territorial effect:
In circumstances where a motor common or contract carrier is engaged in both interstate and intrastate commerce, it shall nevertheless be subject to all the provisions of this article so far as it separately relates to commerce carried on exclusively in this state. It is not intended that the Georgia Public Service Commission shall have the power of regulating the interstate
8 commerce of such motor common or contract carrier, except to the extent expressly authorized by this article as to such commerce. . . . When a motor common carrier is engaged in both intrastate and interstate commerce, it shall be subject to all the provisions of this article so far as they separately related to commerce carried on in this state.
Ga. Code Ann. § 46-7-36.
Liberty Mutual also points to decisions of the Georgia courts
that tend to support its view of the territorial reach of the GPSC.
See, e.g., Marty, 197 Ga. App. at 643, 399 S.E.2d at 262 (“[T]he
cases cited by plaintiff provide no authority for the joinder of the
insurer when the accident occurred outside the State of Georgia.”);
DeHart, 206 Ga. App. at 859, 426 S.E.2d at 593 (“[T]he purposes of
the statute and the State’s interest in ensuring and expediting
compensation of injured parties are not implicated where the
accident does not occur in the State.”).
Liberty Mutual further suggests that, even if we were to
conclude that the GPSC regulation requiring continuous coverage
9 of a motor carrier absent the filing of a Form K obtains with equal
force when the loss occurs outside the state of Georgia, public policy
concerns militate against applying this continuous coverage
provision when the motor carrier has procured identical coverage
from another insurer and that subsequent coverage was in effect at
the time of the loss.
The DeHarts submit that in Johnson v. Woodard, the Georgia
Court of Appeals authoritatively determined that the territorial scope
of the GPSC’s regulatory framework is not confined to the state of
Georgia. The DeHarts further contend, therefore, that Liberty
Mutual’s reliance on judicial construction of statutory language
relating to the establishment and jurisdiction of the GPSC in cases
such as Marty and its progeny is misplaced because Johnson, which
controls the outcome of this case, effectively overruled Marty. The
DeHarts additionally aver that Liberty Mutual’s contention regarding
the “stacking” of insurance policies finds no basis in either the plain
language of Georgia’s statutes or the decisions of Georgia’s courts.
10 III. QUESTIONS TO BE CERTIFIED
1. Does the GPSC regulatory provision mandating that motor
carrier liability insurance policies properly registered with the GPSC
are continuous until not less than thirty days after the GPSC
receives actual written notice that such coverage will terminate --
i.e., the continuous coverage provision -- have extra-territorial
application such that coverage is mandated when a motor vehicle
collision occurs outside the state of Georgia?
2. Where an insurer has certified to the GPSC that it insures
a Georgia motor carrier and, notwithstanding the expiration of the
policy in question, fails to notify the GPSC that such certification has
been canceled prior to the loss, and the motor carrier subsequently
purchases a second policy also in effect at the time of the loss, does
Georgia law permit extension of the GPSC continuous coverage
provision to provide “stacking” of the two policies with respect to the
motoring public?
11 Our statement of the questions to be certified is intended as a
guide and is not meant to restrict the scope of inquiry by the
Supreme Court of Georgia. The entire record of this case, together
with copies of the briefs, shall be transmitted to the court.
QUESTIONS CERTIFIED.