2019 WL 4678394

Court of Appeals of Indiana.
PRIME INSURANCE CO., Appellant,
v.
Darnell WRIGHT, et al., Appellees.
Court of Appeals Case No. 19A-CT-353
|
FILED September 26, 2019
Synopsis
Background: Motorist brought action against commercial driver and trucking companies after being injured in vehicular collision. Motorist filed motion for default judgment. Trucking company’s insurer sought and was granted permission to intervene. The Superior Court, Allen County, No. 02D02-1503-CT-121, Craig J. Bobay, J., entered default judgment against trucking companies, but not against insurer. Insurer filed motion to set aside default judgment against insured trucking company. The Superior Court denied insurer’s motion, and insurer appealed.

[Holding:] The Court of Appeals, Bradford, P.J., held that insurer’s contingent interest did not warrant reversing default judgment that had been entered against insured.

Affirmed.

West Headnotes (10)

[1]
Insurance

The MCS-90 endorsement embodies a public financial responsibility in situations where a motor carrier is responsible for an accident causing injury to a member of the public. 49 C.F.R. § 387.7.
Cases that cite this headnote

[2]
Insurance

The MCS-90 endorsement is, in effect, suretyship by the insurance carrier to protect the public, a safety net, and not an ordinary insurance provision to protect the insured. 49 C.F.R. § 387.7.
Cases that cite this headnote

[3]
Insurance

The MCS-90 endorsement does not extinguish the debt of the insured; rather, the MCS-90 endorsement grants the insurer the right to seek reimbursement from the insured party for any payment made by the company on account of any accident, claim or suit involving a breach of the terms of the policy, and for any payment that the insurance company would not have been obligated to make under the provisions of the policy. 49 C.F.R. § 387.7.
Cases that cite this headnote

[4]
Insurance

The MCS-90 endorsement creates an obligation entirely separate from other obligations created by the insurance policy to which it is attached; the MCS-90 defines the insurer’s public financial responsibility obligation, while the underlying policy defines the insurer’s insurance liability obligation. 49 C.F.R. § 387.7.
Cases that cite this headnote

[5]
Appeal and Error

The decision whether to set aside a default judgment is given substantial deference on appeal; appellate court’s standard of review is limited to determining whether the trial court abused its discretion. Ind. R. Trial P. 60(B).
Cases that cite this headnote

[6]
Appeal and Error

Appellate court may affirm a general default judgment on any theory supported by the evidence adduced at trial. Ind. R. Trial P. 60(B).
Cases that cite this headnote

[7]
Judgment

The trial court’s discretion to set aside the grant of default judgment is necessarily broad because any determination of excusable neglect, surprise, or mistake must turn upon the unique factual background of each case. Ind. R. Trial P. 60(B).
Cases that cite this headnote

[8]
Judgment

No fixed rules or standards have been established for whether a trial court should set aside a default judgment because the circumstances of no two cases are alike. Ind. R. Trial P. 60(B).
Cases that cite this headnote

[9]
Judgment

Upon a motion for relief from a default judgment, the burden is on the movant to show sufficient grounds for relief under rule of trial procedure governing relief from judgment. Ind. R. Trial P. 60(B).
Cases that cite this headnote

[10]
Insurance

Insurer’s continuing interest in action by motorist injured in vehicular collision with insured trucking company was contingent on legal determination regarding applicability of insured’s MCS-90 Endorsement, and thus, insurer’s contingent interest did not warrant reversing default judgment that had been entered against insured, since insurer was seeking to relitigate insured’s liability in effort to limit potential future financial obligation that it could have to motorist, but insurer had also indicated that it planned to seek determination that MCS-90 Endorsement did not apply to case. Ind. R. Trial P. 55(A), 60(B); 49 C.F.R. § 387.7.
Cases that cite this headnote

Appeal from the Allen Superior Court, The Honorable Craig J. Bobay, Judge, Trial Court Cause No. 02D02-1503-CT-121
Attorneys and Law Firms
Attorneys for Appellant: Siobhan M. Murphy, Lewis Brisbois Bisgaard & Smith LLP, Indianapolis, Indiana, Scott B. Cockrum, Lewis Brisbois Bisgaard & Smith LLP, Schereville, Indiana
Attorneys for Appellee, Darnell Wright: David A. Singleton, Chad E. Romey, Blackburn & Green, Fort Wayne, Indiana

Bradford, Judge.

Case Summary
*1 [1] The issue before us is whether an insurance company, which has been relieved of all responsibility under its liability policy through judicial declaration, has an adequate interest in the underlying liability-related lawsuit to warrant participation in said lawsuit for the purpose of attempting to limit its potential future liability stemming from the same events under an MCS-90 Endorsement. Because the insurance company’s remaining interest in the lawsuit is contingent, rather than cognizable, we conclude that it does not.

Facts and Procedural History1
[2] On November 12, 2013, Darnell Wright was injured in a collision with a vehicle driven by Decardo Humphrey. At the time of the collision, Humphrey was acting as an agent for/in the scope of his employment with Ali Faruq, Riteway Trucking, Inc. (“Riteway”), Riteway Transportation, Inc. (“RTI”), and Prudential Trucking, Inc. (“PTI”). On March 27, 2015, Wright filed suit against Humphrey, Faruq, Riteway, RTI, and PTI (collectively, “Defendants”). For whatever reason, Riteway would not cooperate with its insurance provider, Prime Insurance Co. (“Prime”), and failed to appear or present any defense in a subsequent lawsuit brought against it by Wright.

[3] On or about May 1, 2015, Prime filed an action in the Northern District of Indiana seeking a declaration that it had no duty to defend Riteway or any other defendant in Wright’s state-court action. Meanwhile, back in the trial court, on June 17, 2015, Wright filed a motion for a default judgment. In July of 2015, Prime sought and was granted permission to intervene in Wright’s state-court action.

[4] The trial court conducted a hearing on Wright’s motion for a default judgment on August 19, 2015. Defendants and Prime failed to appear, despite each having notice of the hearing.2 The next day, on August 20, 2015, the trial court entered default judgment against Faruq, Riteway, RTI, and PTI, finding that they were in default. The trial court did not enter default judgment against Prime. The trial court entered judgment in favor of Wright for $400,000.

[5] Prime filed an answer and affirmative defenses on August 21, 2015, and a motion to obtain discovery from Wright on November 4, 2015. Wright objected to Prime’s discovery requests on the grounds that judgment had already been entered against Riteway on liability and damages. In response to Wright’s objection, on January 4, 2016, Prime filed motions to set aside the default judgment and to obtain discovery. The trial court denied Prime’s motion to obtain discovery and stayed the case until Prime’s federal action was resolved.

*2 [1] [2] [3] [4][6] After its attempts to obtain discovery from Wright in the state-court action were rejected, Prime requested permission to issue discovery requests to Wright regarding the issues of liability and damages in the federal-court action. The federal court denied Prime’s request, noting that the information sought was irrelevant to the pending request for a declaratory judgment. The federal court stated that it would not permit Prime “to subvert limitations on discovery in another proceeding, by attempting to obtain discovery in [the federal] case that has already been denied in the underlying Allen Superior Court action.” Appellee’s App. Vol. II p. 76 (internal quotation omitted). On January 29, 2018, the federal court ordered that Prime did not owe a duty to defend or indemnify Riteway, that Riteway had failed to meet its obligations under its insurance policy, and that Riteway and its “alter egos” shall be liable to Prime for any payments made under an MCS-90 Endorsement3 to the insurance policy. Appellee’s App. Vol. II p. 58.

[7] Following resolution of the federal-court action, the trial court held a hearing on Prime’s motion to set aside the default judgment. On October 25, 2018, the trial court issued an order denying Prime’s request to set aside the default judgment against Riteway.4

Discussion and Decision
[5] [6] [7] [8] [9][8] Prime contends that the trial court abused its discretion by denying Prime’s motion to set aside the default judgment entered against Riteway. Trial Rule 55(A) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise comply with these rules and that fact is made to appear by affidavit or otherwise, the party may be defaulted by the court.” “A judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of [Trial] Rule 60(B).” T.R. 55(C). Trial Rule 60(B) provides, in relevant part, that a trial court may grant a request for a relief from a default judgment for “(1) mistake, surprise, or excusable neglect” or “(8) any [other] reason justifying relief from the operation of the judgment[.]”
[9] The decision whether to set aside a default judgment is given substantial deference on appeal. Our standard of review is limited to determining whether the trial court abused its discretion. An abuse of discretion may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. We may affirm a general default judgment on any theory supported by the evidence adduced at trial. The trial court’s discretion is necessarily broad in this area because any determination of excusable neglect, surprise, or mistake must turn upon the unique factual background of each case. Moreover, no fixed rules or standards have been established because the circumstances of no two cases are alike…. Furthermore, reviewing the decision of the trial court, we will not reweigh the evidence or substitute our judgment for that of the trial court. Upon a motion for relief from a default judgment, the burden is on the movant to show sufficient grounds for relief under Indiana Trial Rule 60(B).
*3 Kmart Corp. v. Englebright, 719 N.E.2d 1249, 1253 (Ind. Ct. App. 1999) (internal citations and quotation omitted).

[10] The nature of Prime’s interest in the underlying lawsuit is the crux of the issue before us on appeal. In challenging the trial court’s default of its motion to set aside the default judgment against Riteway, Prime claims that its continuing interest in the issue of liability warranted setting aside the default judgment. For his part, Wright argues that Prime does not hold a legally cognizable interest in the underlying lawsuit. We agree with Wright.

[11] Notably, any interest Prime has in the underlying lawsuit stems from choices made by Prime. After choosing to issue a liability policy to Riteway, Prime made the additional choice to issue the MCS-90 Endorsement to Riteway. As Prime acknowledged during oral argument, Prime was not required to do so.

[10][12] It is undisputed that Prime successfully obtained a declaratory judgment indicating that it did not have a duty to defend Riteway under the liability policy and that its only remaining interest stems from the MCS-90 Endorsement. Prime has indicated that it plans to contest whether the MCS-90 Endorsement applies under the facts of this case, a determination that will have to be made in subsequent legal proceedings. Prime’s continuing interest, therefore, is contingent as it is subject to a subsequent legal determination regarding applicability of the MCS-90 Endorsement.

[13] We have previously considered whether a contingent interest was sufficient to warrant intervention by an insurance company into a lawsuit involving one of its insureds. In Cincinnati Insurance Co. v. Young, we noted that under Indiana law, intervention into a lawsuit is warranted if the intervening party demonstrates “(1) an interest in the subject of the action, (2) disposition of the action may as a practical matter impede the protection of that interest, and (3) representation of the interest by existing parties is inadequate.” 852 N.E.2d 8, 13 (Ind. Ct. App. 2006), trans. denied.

[14] After the trial court allowed Cincinnati Insurance Co. (“Cincinnati”) to intervene in a lawsuit involving one of its insureds, we were called upon to determine whether Cincinnati, which had both contested coverage and sought to intervene, had a sufficient interest in the underlying lawsuit to warrant intervention. Id. at 13–17. Concluding that a contingent interest was not sufficient to warrant intervention, we noted that “when an insurer attempts to intervene in the action between its insured and the injured party but reserves the right to deny coverage, the insurer’s asserted interest is not cognizable but rather contingent upon the acceptance of coverage before it becomes colorable for the purposes of [intervention].” Id. at 15. Given that Cincinnati had both contested coverage and sought to intervene, we found that its interest in the lawsuit “was contingent and not direct.” Id. We further noted that although Cincinnati assured us that it appealed “only” in its own name, it effectively sought “to relitigate [its insured’s] liability.” Id.
*4 Allowing Cincinnati to raise these issues while it is still contesting its coverage under the insurance policies would grant the insurer two bites at the proverbial apple in an attempt to escape liability; once in this appeal on issues resulting from the underlying trial and again during its pursuit of its declaratory judgment action disputing coverage.
Id. As such, we concluded that the trial court had abused its discretion in allowing Cincinnati to intervene. Id. at 17.

[15] We find our conclusion in Young to be instructive in this case. As we stated above, Prime’s continuing interest is, at most, a contingent interest. Applying our conclusion from Young regarding contingent interests to the facts of this case, we conclude that Prime’s contingent interest does not warrant reversing the default judgment that was entered against Riteway.

[16] Prime admits that it is seeking to relitigate Riteway’s liability in an effort to limit a potential future financial obligation that it may have to Wright. Prime also admits that it has received a judicial determination that it has no duty to defend under its liability policy and has indicated that it plans to seek a similar judicial determination that the MCS-90 Endorsement does not apply to the facts of this case. Prime cannot both deny its obligation to its insured and, at the same time, seek to litigate questions relating to liability and damages. To allow Prime to do so would effectively grant Prime a second bite at the apple in its attempt to escape a potential future financial obligation. The trial court did not abuse its discretion in denying Prime’s motion to set aside the default judgment entered against Riteway.

[17] The judgment of the trial court is affirmed.

Vaidik, C.J., and Riley, J., concur.
All Citations
— N.E.3d —-, 2019 WL 4678394

Footnotes

1
We held oral argument in this case on September 12, 2019, in our courtroom in Indianapolis. We commend counsel for the high quality of their arguments.

2
While the parties presented argument relating to Prime’s absence from the default judgment hearing, we find Prime’s absence to be irrelevant to the question of whether Prime has an adequate interest in the underlying lawsuit to warrant setting aside the default judgment entered against Riteway. The non-appearance of Prime’s attorney at the default judgment hearing is therefore a non-factor.

3
Federal law requires that a motor carrier maintain proof of financial responsibility. See 49 C.F.R. § 387.7. The MCS-90 endorsement embodies a public financial responsibility in situations where a motor carrier is responsible for an accident causing injury to a member of the public. Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 883 (10th Cir. 2009). “The MCS-90 endorsement is in effect, suretyship by the insurance carrier to protect the public—a safety net, and not an ordinary insurance provision to protect the insured.” Travelers Indem. Co. of Ill. v. W. Am. Specialized Trans. Servs., Inc., 409 F.3d 256, 260 (5th Cir. 2005) (internal quotation omitted).
The endorsement does not extinguish the debt of the insured. The MCS-90 endorsement instead grants the insurer the right to seek reimbursement from the insured party for any payment made by the company on account of any accident, claim or suit involving a breach of the terms of the policy, and for any payment that [the insurance company] would not have been obligated to make under the provisions of the policy except for the agreement contained herein…. In sum, the MCS-90 endorsement creates an obligation entirely separate from other obligations created by the policy to which it is attached. The MCS-90 defines the insurer’s public financial responsibility obligation, while the underlying policy defines the insurer’s insurance liability obligation.
Yeates, 584 F.3d at 884 (emphases omitted, internal quotations and citations omitted, brackets in original).

4
Wright’s remaining claims against Humphrey were dismissed without prejudice on January 14, 2019.

2019 WL 5417290

Court of Appeals of Georgia.
NATIONAL INDEMNITY COMPANY
v.
LARISCY
A19A0847
|
October 23, 2019
Attorneys and Law Firms
Richard Crawford Foster, Marc A. Hood, Atlanta, for Appellant.
Cecil Clay Davis, Howard E. Spiva, Savannah, Mary Kathleen Hashemi, for Appellee.
Opinion

Barnes, Presiding Judge.

*1 After John Wayne Lariscy was injured in an accident with a semi tractor trailer truck, Lariscy and his wife filed a complaint and amended complaint for damages in Screven County State Court against several defendants, including David Burke, d//b/a D & J Trucking, its insurer, National Indemnity Company, and the truck driver, Dennis Stewart. National Indemnity filed its answer, defenses, and a counterclaim and cross-claim for a declaratory judgment as to its duties and obligations under the insurance policy. National Indemnity also asserted that the superior court rather than the state court had subject matter jurisdiction over its counterclaim and cross-claim for a declaratory judgment. National Indemnity subsequently filed a motion for summary judgment in which it asserted that there was no coverage under the policy because the driver was an “excluded driver” under the policy and also that the uppermost limit of any coverage in this case should be the $100,000 mandated by Georgia law. After stating in an email that it lacked subject matter jurisdiction, the trial court entered an order in which National Indemnity’s motion was denied “in the entirety” without further explanation. Following this Court’s grant of National Indemnity’s application for interlocutory appeal, this appeal ensued. For the reasons discussed below, we vacate the trial court’s order and remand for further action consistent with this opinion.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. Wooden v. Synovus Bank, 323 Ga. App. 794, 794, 748 S.E.2d 275 (2013). This Court reviews the denial of summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726, 726, 535 S.E.2d 792 (2000). “We do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.” Tookes v. Murray, 297 Ga. App. 765, 766, 678 S.E.2d 209 (2009).

So viewed, the record demonstrates that in the early morning of December 10, 2013, a semi tractor trailer owned by D & J Trucking, and driven by Stewart, was hauling logs when Lariscy’s vehicle collided with the logs extending from the back of the semi. Lariscy sustained severe and permanent personal injuries,1 including a spinal cord injury, and at the time of the filing of the complaint, had incurred medical expenses in excess of one million dollars. Lariscy and his wife (hereinafter collectively “Lariscy”) filed a complaint for damages against several defendants, including, Burke, D & J Trucking, and its insurer, National Indemnity Company, in the State Court of Screven County. National Indemnity filed its answer and defenses in which it admitted that the company owned the truck at issue, that the truck was hauling cut logs on the day of the accident, that the accident occurred, and that it provided liability insurance for the truck. National Indemnity also claimed as a defense, counterclaim and cross-claim that the state court lacked subject matter jurisdiction to declare its rights and responsibilities pursuant to Georgia’s Declaratory Judgment Act, including whether it owed a defense or indemnity to Burke, or the amount of coverage due beyond the statutory minimum limits required in Georgia. It further asserted that the superior court had exclusive jurisdiction over its counter claim and cross-claim pursuant to the Declaratory Judgment Act.

*2 National Indemnity thereafter attempted to remove the case to federal court “on the basis of federal question jurisdiction.” However, when National Indemnity amended its notice of removal to note that it had erroneously stated that D & J Trucking had agreed to removal of the action to federal court, the parties consented to remanding the case back to the state court. The resulting order closed the case in federal court.

National Indemnity subsequently moved for summary judgment, arguing that there was no coverage for the incident because the policy’s Driver Exclusion Endorsement Form M-3841 stated that “[t]his policy does not apply to any claim or loss arising from accidents or occurrences involving any covered auto while being driven or operated by Dennis Stewart.” It also asserted that the uppermost limit of any coverage in this case should be the minimum coverage mandated by Georgia law of $100,000 rather than the minimum limits of $750,000 prescribed by the Federal Motor Carrier Safety Administration (“FMCSA”). See 49 CFR § 387.9 According to National Indemnity, the statutory minimum limits under FMCSA did not apply because the policy did not include an “MCS-90 Endorsement,”2 which would have raised the liability limits to $750,000. It further asserted that the MCS-90 Endorsement does not apply to purely intrastate trips or to the transport of agricultural goods, including logs.

National Indemnity noted that the policy did include a “Form F Uniform Motor Carrier Bodily Injury and Property Damage Liability Insurance Endorsement.”3 Thus, it maintained, notwithstanding the driver exclusion provision, the uppermost limit of its liability would only be the Georgia minimum of $100,000.

Lariscy opposed the motion for summary judgment, arguing that the state court lacked subject matter jurisdiction to determine the issues raised by the Company, which were issues to be resolved by means of a declaratory judgment in superior court, and alternatively, that there was a clear duty to defend, that a MCS-90 endorsement increasing liability limits to $750,000 should be applied because the Company was operating in interstate commerce, and that at a minimum, National Indemnity was obligated to pay $100,000. In response, the trial court emailed the parties the following:
*3 In considering the briefs in the above motion, the Court determines that [National Indemnity’s] motion is asking the court to determine whether or not a driver was an excluded driver and to determine coverage. I do not feel these are questions for determination by Summary Judgment, but should be determined by Declaratory Judgment action. The Court DENIES the motion for Summary Judgment and [Lariscy] is asked to prepare an order in accordance herewith.
However, the resulting order simply stated that the summary motion was “denied in its entirety.” Upon National Indemnity’s motion, the trial court issued a certificate of immediate review, and after this Court’s grant of interlocutory review, this appeal ensued.

National Indemnity contends that the trial court erred in finding that it did not have subject matter jurisdiction to determine whether there was coverage for the accident under the insurance contract and the liability limit. It asserts that rather than seeking a declaratory judgment as to its obligations to the insureds, it was seeking a judicial determination of key elements related to Lariscy’s direct action claim against National Indemnity. According to National Indemnity, coverage and policy limits are elements of direct action claims and these types of claims are not within the superior court’s exclusive jurisdiction.

“The general rule in Georgia is that ‘a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy.’ ” McGill v. Am. Trucking & Transp., Ins. Co., 77 F.Supp.3d 1261, 1264-65 (N.D. Ga. 2015) (quoting Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494, 371 S.E.2d 401 (1988)). However, Georgia has codified statutory exceptions to this rule, the direct action statutes, which permit a direct action by an injured party against an insurance carrier which insures a motor carrier. See OCGA § § 40-1-112 (c), 40-2-140. As relevant here,
[OCGA § 40-1-112 (c)] states, “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 carrier and the insurance carrier, whether arising in tort or contract.” Since the direct action statute is in derogation of common law, its terms require strict compliance. The purpose of permitting joinder of the insurance company in a claim against a common 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. Stated another way, the purpose of the insurance is not for the benefit of the insured motor common carrier but for the sole benefit of those who may have a cause of action for damages for the negligence of the motor common carrier, making the insurance policy in the nature of a substitute surety bond which creates liability in the insurer regardless of the insured’s breach of the conditions of the policy.
(Footnotes omitted and punctuation omitted.) Occidental Fire & Cas. Co. of North Carolina v. Johnson, 302 Ga. App. 677, 677-678, 691 S.E.2d 589 (2010) (decided under identical language then codified as OCGA § 46-7-12 (c)).

As noted previously, after considering National Indemnity’s summary judgment motion, the trial court emailed the parties that it did not “feel these are questions for determination by Summary Judgment, but should be determined by Declaratory Judgment action. The Court DENIES the motion for Summary Judgment and [Lariscy] is asked to prepare an order in accordance herewith.” However, the trial court subsequently entered an order stating that National Indemnity’s motion for summary judgment was “denied in its entirety.”

*4 If the trial court in fact determined that it lacked jurisdiction, our Georgia Constitution provides that, “any court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Ga. Const. of 1983, Art. VI, Sec. I, Par. VIII. And pursuant to “[s]ection T-4 of the Uniform Transfer Rules ‘when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue or both[, s]uch motion shall be treated as a motion to transfer pursuant to these rules.’ ” McDonald v. MARTA, 251 Ga. App. 230, 231, 554 S.E.2d 226 (2001), quoting Uniform Transfer Rules T-4.4 Moreover, the rules are also applicable when the “court on its own motion, after a hearing thereon, determines that it lacks subject matter jurisdiction.” Uniform Transfer Rules T-4.

Thus, if the trial court denied the motion based on its conclusion that it lacked jurisdiction to decide the questions raised, the result should not have been the denial of the motion for summary judgment, but a transfer of the case to superior court. As we explained in Mitchell v. S. General Ins. Co., 185 Ga. App. 870, 871 (1), 366 S.E.2d 179 (1988), a motion or defense that raises the issue of lack of jurisdiction mandates the transfer of the case even when the court raises the issue on its own, and accordingly a declaratory judgment action filed in state court should be transferred rather than dismissed. See Empire Forest Products v. Gillis, 184 Ga. App. 542, 544 (1), 362 S.E.2d 77 (1987) ( “[i]nasmuch as the court cannot enter judgment under the circumstances [where it lacked jurisdiction ]… , the trial court likewise erred in not ordering the case transferred to the proper forum.”)

However, we cannot discern from the language of the order denying the motion for summary judgment in “its entirety,” whether the trial court denied the summary judgment motion on the merits or denied the motion because it determined that it did not have jurisdiction. And, as to the substantive claims raised in National Indemnity’s enumerations of errors, if “[t]here having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error.” (Citation and punctuation omitted.) City of Gainesville v. Dodd, 275 Ga. 834, 837, 573 S.E.2d 369 (2002).

Accordingly, it is necessary that the order be vacated and this case be remanded to the trial court to clarify the basis for its ruling in this case and enter a new order consistent with this opinion.

Judgment vacated and case remanded with direction.

Mercier and Brown, JJ., concur.
All Citations
— S.E.2d —-, 2019 WL 5417290

Footnotes

1
When deposed, Lariscy testified that he could not recall the collision with the tractor trailer and had no personal knowledge of the events associated with the crash.

2
An MCS-90 endorsement to an automotive insurance policy obligates an insurer to cover an insured’s negligence involving vehicles subject to the financial responsibility requirements of the Motor Carrier Act. The Motor Carrier Act, in turn, creates minimum levels of financial responsibility for the transportation of property by motor carrier within the United States. The purpose of a MCS-90 endorsement is to assure compliance with federal minimum levels of financial responsibility for motor carriers. The MCS-90 endorsement must be attached to any liability policy issued to for-hire motor carriers operating motor vehicles transporting property in interstate commerce. The endorsement creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage.
(Citations and punctuation omitted.) Grange Indemnity Ins. Co. v. Burns, 337 Ga. App. 532, 533-534, 788 S.E.2d 138 (2016). See 49 CFR § 387.7.

3
The endorsement known as a “Form F” endorsement has the effect of providing liability insurance for vehicles not described in the policy to the extent of the minimum amount mandated by Georgia law, i.e., $100,000 per person and $300,000 per incident. See Ga Comp. R & Regs, r. 515-16-11-0.3.

4
These rules shall become operative when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue or both. Such motion shall be treated as a motion to transfer pursuant to these rules. A motion to transfer shall be made only in the court in which the case is pending. These rules also become operative when a court on its own motion, after a hearing thereon, determines that it lacks subject matter jurisdiction.
Uniform Transfer Rules T-4.