United States District Court,

S.D. Florida.

CARDINAL HEALTH, INC., et al., Plaintiffs,

v.

DELIVERY SPECIALISTS, INC., Defendant.

 

No. 10-20555-CIV.

March 8, 2011.

 

ORDER ON DEFENDANT’S MOTION TO STRIKE DECLARATION OF SHERRICK “RICK” ORIE AND FOR SANCTIONS

ANDREA M. SIMONTON, United States Magistrate Judge.

Presently pending before the Court is Defendant’s Motion to Strike Declaration of Sherrick “Rick” Order and For Sanctions Including Involuntary Dismissal (DE # 126). The Plaintiff has filed a Response to the Motion (DE # 136), and the Motion has been referred to the undersigned Magistrate Judge (DE # 128). A hearing was held on the Motion on March 2, 2011. At the conclusion of the hearing, the Motion was DENIED, in part, and GRANTED, in part, as set forth in this Order.

 

I. BACKGROUND

This action was initiated when Plaintiffs filed a three-count Complaint alleging Negligence (Count I), Breach of Contract (Count II) and Conversion (Count III), arising from the alleged failure of Defendant to deliver cargo pursuant to a contract between Cardinal Health, Inc., and Cardinal Health 110, Inc., (“Cardinal”) and Delivery Specialists, Inc. (“DSI”), a trucking common carrier (DE # 1). Specifically, the Complaint alleges that on or about March 17, 2008, DSI agreed to transport certain Cardinal pharmaceutical products which ultimately were stolen from a gas station when the third party truck driver stopped to refuel the truck and allegedly left the truck and cargo unattended (DE # 1). Plaintiffs allege damages in excess of $1,577,523.02. The First Amended Complaint added All Florida Express, Inc., and G.T. Freight, Inc., as Defendants, alleging that the those entities were subcontractors tasked with delivering the products, and that a G.T. Freight driver was driving the truck when it was stolen (DE # 28).

 

Defendant DSI filed an Answer to the Amended Complaint asserting, inter alia, that DSI was not liable to Plaintiffs because the loss was attributable to third parties, G.T. Freight, Inc., and All Florida Express, Inc. (DE # 30).

 

Plaintiffs have since dismissed GT Freight, Inc., and All Florida Express, Inc., from this action (DE # # 108, 131).

 

On May 26, 2010, the Honorable Ursula Ungaro, the District Judge assigned to the case, issued a Scheduling Order setting the matter for trial and February 28, 2011 and the discovery cut-off date for November 12, 2010, and the motion deadline for December 10, 2010 (DE # 20), On December 6, 2010, following a Joint Request from the Parties to continue the trial and extend discovery, the Court issued a second Scheduling Order resetting the matter for trial on April 11, 2011, the discovery cut off date for January 14, 2011 and the motion deadline date for February 4, 2011 (DE # 92). Thereafter, the Court, again upon the request by the Parties, extended the discovery deadline until February 4, 2011 (DE # 106). In that Order, the Court stated that the parties could agree to take additional depositions or conduct additional discovery after the February 4th date, but that the Court would not entertain motions to enforce such agreements (DE # 106 at 4).

 

Throughout the course of the discovery period, Defendant DSI did not propound any written discovery on Cardinal. On February 4, 2011, Plaintiffs filed their Motion for Summary Judgment which included the Declaration of Sherrick Orie, the Night Operations Manager who was responsible for the night shipping operations for Cardinal on the night that the shipment was loaded and stolen (DE # 112-1-2). In his Declaration, Mr. Orie set forth the procedures followed by Cardinal Health in packing and loading materials for shipment, and stated that on the night at issue, the shipping manifest was signed by the Cardinal Health Shipping Lead, Jamie Williams, as well as the truck driver (DE # 112 at 2). Mr. Orie provided no facts regarding the actual loading of the shipment because he was not present when the cargo was loaded, but rather only provided information in his Declaration as to authenticating the documents that were signed and/or issued in the normal course of loading and recording the contents of that shipment.

 

 

On February 21, 2011, Defendant DSI filed an Unopposed Motion for Extension of Time to File Response to Plaintiffs’ Motion for Summary Judgment (DE # 125). In that Motion, DSI asserted that an additional ten days was needed to respond to Plaintiffs’ Motion for Summary Judgment due to the need to complete the depositions of two of Cardinal’s employees, Mark Kingery and Mike France, which were scheduled for February 22, 2011. That Motion was granted and Defendant DSI was given until March 1, 2011 to file its response to Plaintiffs’ Summary Judgment Motion. Late on February 22, 2011, DSI filed the instant Motion to Strike, seeking to strike the Declaration of Mr. Orie, and to preclude the Plaintiffs from relying upon any testimony from either Mr. Orie or Mr. Jamie Williams, or striking Plaintiff’s Complaint for failing to timely disclose either of those witnesses (DE # 126).

 

On March 1, 2011, Defendant filed its Response in Opposition to Plaintiff’s Motion for Summary Judgment (DE # 138). On March 2, 2011, the undersigned held a hearing on the instant Motion, which had been continued from February 28, 2011, based upon the telephonic request of the Parties (DE # 135).

 

II. PARTIES’ POSITIONS

Defendants have filed the instant Motion to Strike seeking to have the Declaration of Sherrick “Rick” Orie’s struck as an Exhibit from the Plaintiffs’ Motion from Summary Judgment and further seeks sanctions, including involuntary dismissal of Plaintiff’s claims, due to Plaintiffs’ purported failure to disclose Sherrick Orie and another witness, Jamie Williams, until after the discovery cut-off date (DE # 126). Defendant contends that Plaintiffs did not disclose either witness in their Initial Disclosures and also failed to disclose the two witnesses during the course of discovery, despite the fact that both witnesses were Plaintiffs’ employees and held significant information related to the incident at issue.

 

At the hearing, Defendant reiterated its position in its papers and contended that it did not take the deposition of Mr. Orie because Plaintiffs did not offer him for deposition until after February 24, 2011. According to Defendant, the other two depositions taken after the discovery cut-off period were the deposition of Mr. Kingery, which was delayed at Plaintiffs’ request, and the deposition of Mr. France, which was rescheduled for the convenience of all Parties, so that it could be taken in Orlando. In addition, Defendant argued that because Judge Ungaro made clear that no extensions on discovery would have be granted, that Defendant would be at the mercy of Plaintiffs’ Counsel in trying to secure and schedule Mr. Orie’s deposition. Defendant further asserted that upon the Plaintiffs submitting their Initial Disclosures in April 2010, Defendant recognized that Plaintiffs would have difficulty proving what was loaded onto truck and the value of that cargo. Thus, Defendant contends that it was prejudiced by Plaintiffs’ failure to disclose Mr. Orie as a witness earlier because Defendant might not have spent the last year defending this matter but rather, might have settled the case, had Defendant been aware of Mr. Orie as a potential witness. Defendant did, however, admit that Mr. Jamie Williams’ name appeared on documents in the Defendant’s possession.

 

In response, Plaintiffs’ Counsel asserted that he did not know that Mr. Orie was a potential witness in this matter until January 24, 2011. In addition, Plaintiff contends that even though Mr. Orie was not included in the Plaintiffs’ initial disclosures, that if Defendant had propounded any written discovery requests upon the Plaintiffs, that Defendant would have discovered the identity of Mr. Orie. Plaintiffs further asserted that Defendant should have known about the existence of Mr. Williams prior to February 4, 2011, because he was listed numerous times in the Dispatch Log for the night in question, which was in the Defendant’s possession.

 

At the hearing, Plaintiffs’ Counsel asserted that it did not know about the existence of Mr. Orie as a witness in this matter earlier, because when Plaintiffs’ Counsel requested that its client, Cardinal, identify “who was present when the shipment was loaded,” Cardinal did not name Mr. Orie because he was not present when the shipment was loaded. Rather, it was not until Plaintiffs’ Counsel began to prepare Plaintiffs’ Motion for Summary Judgment that Mr. Orie was identified as the night manager at the time of the incident who was most familiar with the policies and procedures generally followed by Cardinal Health in loading and securing cargo upon a truck for transportation. However, Plaintiffs admitted that they are unable to explain why they failed to disclose Mr. Orie’s name immediately upon discovering that Mr. Orie was going to be a witness but rather waited until filing their Motion for Summary Judgment, ten days later, to alert the Defendant.

 

As to the imposition of sanctions, Plaintiffs argued that Mr. Orie’s Declaration should not be stricken because the Defendant failed to demonstrate any prejudice it suffered as a result of the disclosure, failed to show that the Plaintiffs’ failure to disclose either witness earlier was due to Plaintiffs’ Counsel’s bad faith, and failed to demonstrate that any difficulties related to the late disclosure of the witnesses could not be cured by allowing the Defendant to now conduct the deposition of Mr. Orie. Further, at the hearing, Plaintiffs clarified that Mr. Orie was included on the witness list of potential witnesses at trial. Plaintiffs however indicated that they did not know the whereabouts of Mr. Williams and did not intend to call him as a witness at trial, although they reserved the right to do so if necessary.

 

III. LAW & ANALYSIS

 

A. Rule 26(a)(1)

 

Rule 26(a) (1) of the Federal Rules of Civil Procedure requires parties to make Initial Disclosures to each other very early in the proceedings, and requires that names and contact information of any individuals “likely to have discoverable information” that can support a claim or defense in the case. Fed. R. Civ. Pro. 26(a)(1)). The Rule also states the following regarding supplemental disclosures:

 

A party who has made a disclosure under Rule 26(a)-must supplement, or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing;

 

Fed.R.Civ.P. 26(e). Thus, pursuant to this Rule, Plaintiffs had an obligation to disclose any additional witnesses not included in their Initial Disclosures unless those witnesses were otherwise made known to DSI.

 

B. Mr. Sherrick “Rick” Orie

Based upon the facts of this case, as indicated at the hearing, the Court finds that Plaintiffs failed to comply with the dictates of Rule 26. In fact, it surprising that Mr. Orie was not known to Plaintiffs as a potential witness earlier, in light of the fact that Mr. Orie was the night operations manager and his Declaration is, in essence, key evidence in support of Plaintiff’s Motion for Summary Judgment. In addition, once Plaintiffs’ Counsel discovered in late January that Mr. Orie would be a witness in this matter, it is inexcusable that Plaintiffs’ Counsel did not disclose that information immediately to the Defendant, but rather waited over ten days to do so.

 

However, any prejudice arising from Plaintiffs’ failure to disclose Mr. Orie earlier is greatly mitigated by the fact that Defendant was given the opportunity to take the deposition of Mr. Orie prior to the due date of Defendant’s response to Plaintiffs’ Motion for Summary Judgment. This is particularly true given that in Defendant’s response to Plaintiffs’ Motion for Summary Judgment, filed on March 1, 2011, Defendant relied upon the deposition testimony of Michael France and Mark Kingery that were taken in the latter part of February, 2011 (DE138-1, 138-2). Also, as stated previously, in Defendants’ February 21, 2011 Motion for Extension of Time to respond to Plaintiffs’ Motion for Summary Judgment, Defendants made no mention of the need for additional time based upon the late disclosure of Mr. Orie. Thus, it is doubtful that Defendant was unduly prejudiced by the February 4, 2010 disclosure of Mr. Orie, particularly when the depositions of Plaintiffs’ key witnesses had not yet been taken. In addition, it is worth noting that Defendant did not propound any written discovery in this case and virtually conducted no other discovery prior to the close of discovery. This is significant because it is unlikely that the earlier disclosure of Mr. Orie would have materially altered the manner in which discovery was conducted in this case, given that the depositions of Plaintiffs’ other key witnesses were originally scheduled so close to the discovery cutoff date that Defendant likely would not have had sufficient to time to conduct follow-up discovery, if necessary. Further, at the hearing, Defendant conceded that the Defendant’s decision not to depose Mr. Orie, despite Plaintiffs’ offer to make Mr. Orie available, was a strategic one rather than one based upon Defendant’s belief that the delay in the disclosure of Mr. Orie was prejudicial to the point that it rendered Mr. Orie’s testimony useless.

 

Moreover, Defendant failed to show that the Plaintiffs’ failure to disclose Mr. Orie as a witness earlier, was due Plaintiffs’ bad faith or intentional attempt to hide a key witness from the Defendant. Rather, the record supports a finding that Plaintiffs’ Counsel’s failure to disclose Mr. Orie was likely due to neglect.

 

Finally, the interests of justice urge that summary judgment in this matter should not rise and fall on this Court striking the declaration of Mr. Orie, a witness whose testimony primarily relates to the authentication of certain business records and Cardinal’s procedures in loading cargo. Thus, the instant discovery dispute is distinguishable from those cases where a percipient witness is belatedly disclosed which may fundamentally alter the strategy employed by the litigant in a case. Accordingly, the Court will not strike the Declaration of Mr. Orie or the Plaintiffs’ pleadings.

 

However, while under the circumstances of this case, the undersigned finds that striking Mr. Orie’s Declaration is not appropriate, the Plaintiffs’ utter failure to comply with the dictates of Federal Rule of Civil Procedure 26, and to otherwise timely disclose Mr. Orie as a witness, warrants the imposition of a monetary sanction. To that end, at the hearing the undersigned ordered that the deposition of Mr. Orie proceed at the Plaintiffs’ expense, including payment for the costs associated with travel and the court reporter, as well as the payment of Defendant’s attorney’s fees associated with taking the deposition and associated with bringing the instant Motion for Sanctions.

 

Although not explicitly requested in Defendant’s Motion, to be clear, the undersigned finds that because Mr. Orie’s deposition will be completed well in advance of trial, to the extent Defendant seeks to preclude Plaintiffs from relying on Mr. Orie as a witness at trial on the grounds raised on the Motion, that request is denied.

 

C. Mr. Jamie Williams

Unlike Mr. Orie, Mr. Williams’ name was listed multiple times in the dispatch log for the night in question, which by all accounts, was in Defendant’s possession prior to the discovery cut-off date in this case. Yet Defendant never requested the deposition of Mr. Williams nor otherwise sought discovery related to Mr. Williams’ knowledge of the facts of the incident. Thus, as ruled at the hearing, the Defendant should have known of Mr. Williams existence prior to the filing of Plaintiff’s Motion for Summary Judgment, and the likelihood of Mr. Williams being a witness in this matter, notwithstanding the Plaintiff’s tardy disclosure. Thus, the Defendant’s Motion is denied in regard to Mr. Williams because Plaintiffs did not violate Rule 26 as it pertains to that witness.

 

IV. CONCLUSION

Therefore, based upon the arguments made in the Parties’ submissions and at the hearing on the Motion, and a review of the record as a whole, and as ruled at the hearing on the Motion, it is

 

ORDERED AND ADJUDGED that Defendant’s Motion to Strike Declaration of Sherrick “Rick” Order and For Sanctions Including Involuntary Dismissal (DE # 126) is GRANTED, in part and DENIED, in part. Mr. Orie is to be produced for deposition in Atlanta, Georgia, by March 3, 2011, with Plaintiffs paying the costs associated with taking the deposition, including travel, attorney’s fees and court reporter fees. After completion of Mr. Orie’s deposition, the Defendant may file a supplement to its Opposition to the Plaintiffs’ Motion for Summary Judgment by March 7, 2011, if necessary. If Defendant files a Supplement to the Opposition to the Motion for Summary Judgment based upon the deposition testimony of Mr. Orie, Defendant shall file a transcript of the deposition into the record with the costs associated with obtaining the transcript to be borne by the Plaintiff. The due date for Plaintiffs’ Reply will remain as March 11, 2011. It is further

 

ORDERED AND ADJUDGED that Plaintiffs shall bear all attorney’s fees and costs associated with bringing this Motion for Sanctions.

 

DONE AND ORDERED.

Supreme Court of Georgia.

SAPP et al.

v.

CANAL INSURANCE COMPANY.

 

No. S10G0619.

Feb. 28, 2011.

 

HUNSTEIN, Chief Justice.

In April 2007, appellant Pamela Sapp was injured in a car accident when her car was struck by a dump truck driven by David Lamb and owned by Lamb’s employer, Entra Demond Blackmon, d/b/a EDB Trucking. Sapp and her husband sued Lamb and EDB in Tift County Superior Court; the Sapps also filed a federal lawsuit against EDB’s insurer, appellee Canal Insurance Company. Thereafter, Canal filed a declaratory judgment action in Tift Superior Court, as to which the Sapps filed a counterclaim, seeking a declaration that the accident was not covered under the subject insurance policy. Specifically, Canal claimed that, because the accident undisputedly occurred outside the 50-mile radius-of-use limitation set forth in the insurance policy, injuries resulting from the accident were not covered under the policy. On cross-motions for summary judgment, the trial court granted Canal’s motion, finding no coverage with respect to the Sapps’ claims, and dismissed with prejudice all claims against Canal. The Court of Appeals affirmed, finding that EDB’s insurance policy was a basic automobile liability policy rather than a motor carrier policy; that the policy was thus not subject to statutory minimum liability limits imposed on motor carrier policies; and that the 50-mile radius-of-use limitation in the policy was therefore valid and operated to preclude coverage for claims arising out of the accident. Sapp v. Canal Ins. Co., 301 Ga.App. 596, 688 S.E.2d 375 (2010). This Court granted the Sapps’ petition for writ of certiorari to consider the applicability of the Georgia Motor Carrier Act, OCGA § 46-7-1 et seq., and the validity of the 50-mile radius-of-use limitation under the circumstances presented here. As explained more fully below, we find that the Motor Carrier Act does apply in this case and that the 50-mile radius-of-use limitation is thus invalid. Accordingly, we reverse.

 

1. The threshold issue in this case is whether the insurance policy issued to EDB by Canal was a motor carrier policy subject to Georgia’s Motor Carrier Act. The Court of Appeals found as a matter of fact that it was not, citing the absence of any evidence that EDB had ever obtained a motor carrier permit as required at the time under the Act and its implementing regulations and the lack of a “Form F” endorsement to the policy, which would have signified the policy’s status as a motor carrier policy. See Ross v. Stephens, 269 Ga. 266, 268-269, 496 S.E.2d 705 (1998). Though there appears to be no dispute that EDB failed to obtain the permit required to operate as a motor carrier and that the insurance policy did not include a Form F endorsement, we do not find these facts dispositive as to the applicability of the Motor Carrier Act.

 

“The state motor carrier acts were enacted to protect members of the general public against injuries caused by the negligence of a Georgia motor carrier.” (Footnote omitted.) DeHart v. Liberty Mut. Ins. Co., 270 Ga. 381, 385(1), 509 S.E.2d 913 (1998). A “motor carrier of property” is defined under Georgia law as “a motor common or contract carrier engaged in transporting property, except household goods, in intrastate commerce in this state.” OCGA § 46-1-1(8). A motor carrier, which may be classified either as a “common” or “contract” carrier, is one which “own[s], control[s], operat[es], or manag[es] any motor propelled vehicle … used in the business of transporting for hire of persons or property … on the public highways of Georgia.” OCGA § 46-1-1(9)(B); see also OCGA § 46-1-1(9)(A). Transporting “for hire” is defined as “an activity wherein for payment or other compensation a motor vehicle and driver are furnished to a person by another person….” OCGA § 46-1-1(6). As Canal states in its pleadings, EDB at the time of the accident “operated a dump truck business.” Specifically, as the undisputed evidence shows, EDB was in the business of furnishing a dump truck and driver, for compensation, to haul crushed rock and like materials on the public roadways of Georgia. There can thus be no dispute that EDB was at the relevant time a motor carrier of property under Georgia law.

 

The provisions of the Motor Carrier Act in effect at the time of the accident required a motor carrier of property to obtain a permit from the State Revenue Commissioner as a prerequisite to operating on the State’s public highways. Former OCGA § 46-7-15.1, Ga. L.2005, p. 334, § 28-3. As a condition of obtaining such permit, the carrier was required to obtain a policy of indemnity insurance to protect the public against injuries proximately caused by the negligence of such carrier or its agents. Former OCGA §§ 46-7-12(a), 46-7-12.1(a), Ga. L.2005, p. 334, § 28-2.1; former PSC Transp. Rule 7-2.1(a), (c). The PSC’s Transportation Rules fixed minimum amounts of such insurance at $100,000 per person and $300,000 per occurrence. Former PSC Transp. Rule 7-2.1(f). Persons injured by motor carriers were provided a right of action against not only the carrier but directly against its insurer as well. Former OCGA § § 46-7-12(c), 46-7-12.1(c), supra; former PSC Transp. Rule 7-2.1(e). These so-called “direct action” provisions of the Act “establish ‘an independent cause of action against the carrier’s insurer on behalf of a member of the public injured by the carrier’s negligence.’ “ (Footnote omitted.) Frank E. Jenkins III & Wallace Miller III, Georgia Automobile Insurance Law, § 46:1(c) (2010 ed.). Under this scheme, the insurer “is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier. [Cit.]” Andrews v. Yellow Freight System, Inc., 262 Ga. 476, 421 S.E.2d 712 (1992). See also Ross, supra, 269 Ga. at 267, 496 S.E.2d 705 (insurance required by Act “ ‘is a direct and primary obligation’ to any person who sustains actionable injury or loss as a result of the negligence of the common carrier or its agents”).

 

In this case, as found by the Court of Appeals, there is no evidence that EDB ever obtained a permit to operate in Georgia as a motor carrier.  However, contrary to the Court of Appeals’ determination, EDB’s noncompliance with its responsibility to obtain a permit had no impact on its status as a Georgia “motor carrier of property”; while the failure to get a permit rendered EDB in violation of the Motor Carrier Act, it did not render EDB any less a “motor carrier of property” under applicable law. See Georgia Automobile Insurance Law, supra, § 46.5 (“[a] prima facie case [under the direct action statute] is established by showing that the carrier meets the general definition of ‘motor common carrier’ or ‘motor contract carrier’ ”); Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 236-237, 188 S.E. 24 (1936) ( “The sustaining of actionable injury is, under the statute, the only condition precedent to a suit on the policy. When actionable injury is alleged in a suit on the policy, the terms of the statute are complied with, and the petitioner upon proper proof of the injury is entitled to recover on the policy.” (Emphasis in original.)).

 

Moreover, the facts giving rise to EDB’s status as a motor carrier were clearly known to Canal at the time it issued EDB’s insurance policy, as EDB identified itself in its Application for Commercial Motor Vehicle Insurance as a “common carrier” in the business of hauling soil via dump truck. Though the record is unclear as to why Canal failed to issue a motor carrier policy, it is beyond dispute that Canal, which is in the business of offering insurance to motor carriers, was on notice of EDB’s status as such and thus of its need for insurance complying with the Motor Carrier Act. Furthermore, the undisputed evidence reflects that Mr. Blackmon relied on his insurance agent to procure the appropriate insurance coverage and was never informed that his policy lacked the endorsement necessary to provide motor carrier coverage. Under the facts of this case, where EDB sought insurance coverage from Canal; where Canal was on notice of EDB’s status as a motor carrier and thus of its need to obtain motor carrier coverage; and where EDB was not informed of nor otherwise had reason to believe the policy it was issued fell short of the coverage it was required by law to maintain, Canal is subject to a direct action under the Motor Carrier Act by third parties injured by virtue of EDB’s negligence. Former OCGA § 46-7-12.1(c); former PSC Transp. Rule 7-2.1(e).

 

Our approach herein is consistent with that we have taken in prior cases in which injured members of the motoring public have sought to recover from a negligent motor carrier’s insurer despite some irregularity casting doubt on the existence or extent of coverage. See Progressive Preferred Ins. Co. v. Ramirez, 277 Ga. 392(1), 588 S.E.2d 751 (2003) (insurer liable to injured third party despite fact that policy had lapsed prior to accident); DeHart, supra, 270 Ga. at 385(2), 509 S.E.2d 913 (insurer liable to injured third party despite expiration of policy prior to accident); Ross, supra, 269 Ga. at 269, 496 S.E.2d 705 (insurer liable to injured third party despite fact that injuries were sustained in accident involving vehicle not listed in insured motor carrier’s policy). In all these cases, the Court’s rationale has hinged on the policy purpose of the Act to protect the motoring public. See, e.g., DeHart, supra at 385(1), 509 S.E.2d 913 (citing purpose of the Act “to protect members of the general public against injuries caused by the negligence of a Georgia motor carrier”); Ross, supra at 267, 496 S.E.2d 705 (“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’ ”). Accord Farley v. Continental Ins. Co., 150 Ga.App. 389, 390, 258 S.E.2d 8 (1979) (“an injured plaintiff who seeks recovery of damages out of the [insurance] policy amount is a sort of third party beneficiary of the contract between the carrier and the insurer”). This being the case, any negative consequences arising from noncompliance with the Act by the insured motor carrier or its insurer should be suffered by one or both of the noncompliant parties rather than by the innocent motoring public. See DeHart, supra at 385-386(2), 509 S.E.2d 913 (emphasizing, in finding insurer liable to injured third party despite expiration of insurance policy, that “this case does not involve litigation between the insurer and insured or between two insurance companies …. [in which] courts generally have held that the insurance company that provided the expired policy is not liable”).

 

[10] 2. Given our determination that the Motor Carrier Act applies in the circumstances presented here, it follows that any provisions in the insurance policy issued to EDB that would serve to reduce or negate Canal’s obligations to the motoring public under the Act are void and of no effect. See Vickers, supra, 183 Ga. at 237, 188 S.E. 24 (“any provision in the policy of insurance, in so far as it may conflict with the plain provisions of the [motor carrier] statute, must give way, and is superseded by the statutory provisions”); Guinn Transport, Inc. v. Canal Ins. Co., 234 Ga.App. 235, 507 S.E.2d 144 (1998) (invalidating exclusion in motor carrier policy inconsistent with minimum coverages required by Act and regulations). Compare Curtis v. Girard Fire & Marine Ins. Co., 62 Ga.App. 28, 30-31, 7 S.E.2d 433 (1940) (noting that Georgia appellate courts have permitted enforcement of policy “forfeiting provisions which were not included in any statute of this State but which were not repugnant to its public policy ” (emphasis supplied)). The radius-of-use limitation, which purports to exclude from coverage any incident occurring more than 50 miles from Tifton, Georgia, is such a provision and is, therefore, unenforceable. The radius-of-use limitation so invalidated, Canal is subject to liability up to the policy limit, which the record reflects is $500,000. See Ramirez, supra, 277 Ga. at 395(1), 588 S.E.2d 751 (where insurer held liable to injured third party under expired policy, liability “is based on the policy itself as opposed to liability based on the minimum coverage imposed by law”). See also Kelly v. Lloyd’s of London, 255 Ga. 291, 296, 336 S.E.2d 772 (1985) (holding, in construing analogous insurance provisions of different licensing statute to invalidate policy exclusion operating contrary to statute’s purpose of protecting injured third parties, that insurer was liable up to policy limits rather than statutory minimum limits). Compare Ross, supra, 269 Ga. at 269, 496 S.E.2d 705 (statutory minimum limits rather than higher policy limits applied where policy on its face did not cover the particular vehicle involved).

 

[11][12] 3. The Court of Appeals also held that, given the absence of a transcript from the summary judgment hearing in the trial court, it was required to assume an adequate evidentiary basis for the trial court’s ruling and thus was bound to affirm. Sapp, supra, 301 Ga.App. at 598, 688 S.E.2d 375. We disagree. As an initial matter, we note that our disagreement with the trial court and Court of Appeals lies not in any findings of fact but rather in our analysis of how the law applies to the facts. Thus, contrary to the Court of Appeals’ conclusion, assuming that an adequate evidentiary basis exists for the trial court’s findings does not automatically yield an affirmance of the result reached. Moreover, we disagree with the Court of Appeals’ implicit assumption that a hearing transcript is always necessary to resolve appeals arising from a trial court’s determination on summary judgment. Where, as here, all evidence was submitted to the trial court in advance of the hearing as required under OCGA § 9-11-56(c), see Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981), and the hearing consisted simply of oral argument based on evidence already submitted, a transcript of proceedings is not required to enable meaningful appellate review. Baker v. Brannen/Goddard Co., 274 Ga. 745(1), 559 S.E.2d 450 (2002).

 

[13] 4. To summarize the above, we now hold that, when an insurer purports to issue coverage to an insured which it knows is a motor carrier, the insurer assumes responsibility to indemnify the motoring public for injuries sustained by virtue of the carrier’s negligence in at least the minimum amount statutorily required under the Motor Carrier Act and up to the policy limits, notwithstanding any provisions in the insurance policy to the contrary. Any other result under the circumstances presented here would have the effect of rewarding an insurer for its insured’s noncompliance with the law and its own duplicity or negligence in failing to supply the appropriate type of coverage to its insured, all to the detriment of the motoring public and contrary to the purpose of the Act.

 

Judgment reversed and case remanded with direction.

 

All the Justices concur.

 

Since the accident at issue herein, the Motor Carrier Act has been revised on several occasions with modifications both technical and substantive, and its implementing regulations, promulgated by the Public Service Commission, have been revised and renumbered. See Transportation Rules of the Public Service Commission, Chapter 515-16-11 (revised May 6, 2008). Citations herein to the Act refer to the current version, except where the version in effect at the time of the accident differs materially from the current version, in which case we cite to the law in effect at that time and make note thereof. Citations to the PSC Transportation Rules refer, unless otherwise specified, to the rules in effect at the time of the accident, which have been included the record. Transportation Rules of the Public Service Commission, Chapter 7 (adopted Jan. 17, 2006).

 

Under the current rules, the Form F is no longer utilized. Frank E. Jenkins III & Wallace Miller III, Georgia Automobile Insurance Law, § 46:6(a) (2010 ed.).

 

Common carriers are distinguished from contract carriers in that they “undertake[ ] to carry, and hold[ ] [themselves] out as ready to receive for carriage, goods for hire, which [they are] accustomed to carry, for all people indifferently so long as [they have] room.” McIntyre v. Harrison, 172 Ga. 65, 66(5), 157 S.E. 499 (1931). This distinction is of no consequence in this case.

 

This particular provision of the Act, applicable specifically to motor carriers of property, was repealed in 2009 as part of the Legislature’s implementation of the federal Unified Carrier Registration Act. See Ga. L.2009, p. 629, §§ 5, 10(b). Similar permitting requirements continue to apply to motor carriers of household property and passengers. See OCGA § 46-7-3.

 

These mandatory minimum liability amounts continue in force under current rules. PSC Transp. Rules, § 515-16-11-.03(5).

 

This right of action continues under current law as to motor carriers of household goods and passengers. OCGA § 46-7-12(c).

 

While Mr. Blackmon deposed vaguely that “I did whatever I had to do to drive in the state of Georgia,” he adduced no evidence of having ever applied for the required permit.

 

This is true notwithstanding Canal’s failure to file the certificate of insurance as required under the Act. See former OCGA § 46-7-12.1(a) (“[t]he failure to file any form required by the state revenue commissioner shall not diminish the rights of any person to pursue an action directly against a motor common or motor contract carrier’s insurer”). This provision in former OCGA § 46-7-12.1(a)-which mirrors language added in 2000, see Ga. L.2000, p. 1583, § 1, to the closely related former OCGA § 46-7-12, on which OCGA § 46-7-12.1 was modeled, see Ga. L.2005, p. 334 § 28-2.1-is a clear expression of the Legislature’s intent to prevent insurers from insulating themselves from liability under the Motor Carrier Act by failing to comply with its technical requirements. See Devore v. Liberty Mut. Ins. Co., 257 Ga.App. 7, 570 S.E.2d 87 (2002) (noting that 2000 amendment to Motor Carrier Act changed prior law, under which direct action against insurer was precluded if required forms had not been filed); Georgia Automobile Insurance Law, supra, § 46:6(a), (b) (same). The fact that the Legislature amended the Act for this purpose supports the conclusion that the insurer’s duty to the public stems from the Act as triggered through the insurance policy rather than from the insurer’s filings with the State. To the extent Georgia law has been construed otherwise, we reject that construction. See Kolencik v. Stratford Ins. Co., 2005 WL 3238614 (N.D.Ga. Nov.28, 2005) (holding that insurer not liable to injured third party under policy that had been cancelled prior to accident due to noncompliance with Motor Carrier Act filing requirements by insured motor carrier and insurer).

 

Though Canal decries as unfair the fact that EDB received discounted insurance rates as a result of the inclusion of the radius-of-use limitation of which Canal cannot now take advantage, we note that Canal “may have a separate cause of action for indemnification against its insured motor carrier for breach of the insurance policy provisions.” (Footnote omitted.) Georgia Automobile Insurance Law, supra, § 46.3.