United States: Non-Emergency Transport Vehicle Issues Under Georgia's Motor Carrier Act

Last Updated: February 14 2018
Article by Drew Eckl & Farnham, LLP

In 2012, the Georgia legislature enacted the Georgia Motor Carrier Act of 2012. One of the stated objectives of the Act was to transfer regulations of motor carriers and limousine carriers from the Georgia Public Service Commission to the Georgia Department of Public Safety. See O.C.G.A. 40-1-51.  Georgia lawmakers codified a list of definitional terms to be applied in interpreting the Act. See O.C.G.A. § 40-1-100.  For example, the term "carrier" means a person who undertakes the transporting of goods or passengers for compensation. O.C.G.A § 40-1-100(1). The term "for compensation," as used in the definition of carrier, means an activity relating to a person engaged in the transportation of goods or passengers for compensation. O.C.G.A. § 40-1-100(8). And later the Act defines the term "passenger" as a person who travels in public conveyance by virtue of a contract, either express or implied, with the carrier as the payment of the fare or that which is accepted as an equivalent thereof. O.C.G.A § 40-1-100(13). Finally, the term "motor carrier" is defined in O.C.G.A § 40-1-100(12) as every person owning, controlling, operating, or managing any motor vehicle, including the lessees, receivers, or trustees of such persons or receivers appointed by any court, used in the business of transporting for hire persons, household goods, or property or engaged in the activity of nonconsensual towing hire over any public highway in Georgia.

More importantly, the Georgia legislature codified specific exemptions that excluded certain motor carriers from the statutory scope of O.C.G.A § 40-1-100(12) defining "motor carrier." If an exemption applies, Georgia courts have held that there is no direct action against the insurer of an exempt motor carrier. Bailey v. Occidental Fire & Cas. Co., 193 Ga. App. 710, (1989); Lewis v. Hays Trucking, Inc., 701 F. Supp. 2d 1300 (N.D. Ga. 2010). But these exemptions will only apply where the motor vehicle is engaged exclusively in the exempt activity. Smith v. Commercial Transp., Inc., 220 Ga. App. 866 (1996). And "the burden of proof as to whether [an] exemption is applicable lies with the party claiming it, and there is no burden on the opposing party to prove that the truck is not within the exemption." Jarrard v. Clarendon Nat. Ins. Co., 267 Ga. App. 594 (2004). 

Applicable to the analysis of non-emergency transport vehicles are the exemptions found in O.C.G.A § 40-1-100(12)(vii) and O.C.G.A § 40-1-100(12)(viii). O.C.G.A § 40-1-100(12)(vii) excludes from the statutory definition of motor carrier "[v]ehicles..." that are "privately owned and operated for profit or not for profit, capable of transporting not more than ten persons for hire when such vehicles are used exclusively to transport persons who are elderly, disabled, in route to receive medical care or prescription medication, or returning after receiving medical care or prescription medication" and O.C.G.A. § 40-1-100(12)(viii) which specifically excludes ambulances. In Georgia, most non-emergency transport vehicles are owned and operated by for profit, private companies. Therefore, Georgia courts normally apply the exemptions found in O.C.G.A. § 40-1-100(12)(vii) when analyzing cases involving non-emergency transport vehicles, rather than O.C.G.A. § 40-1-100(12)(v) and (vi), which exclusively applies to motor vehicles operated not for profit and motor vehicles owned exclusively by the United States government.  

While the statutory language is clear in excluding ambulances from the definition of "motor carrier" under O.C.G.A § 40-1-100(12)(B)(viii), the Georgia Court of Appeals clarified whether a non-emergency medical transportation van fell within an exemption to the motor carrier definition under O.C.G.A § 40-1-100(12)(B)(vii) in Mornay v. National Union Fire Ins. Co. of Pittsburgh, PA. 331 Ga. App. 112 (2015). In this case, the Department of Community Health contracted with Southeastrans to act as a broker of non-emergency medical transportation to Medicaid members in Georgia. Id at 112. Later, Southeastrans contracted with the company Drop-4-Care Transportation to provide the transportation services pursuant to the contract between the Department of Community Health and Southeastrans. Id. On the date of the accident, Southeastrans dispatched a Drop-4-Care van to transport Sylvia Mornay from her nursing home to a medical appointment. The accident occurred when the Drop-4-Care van, a 2002 Ford Ecoline E-350, stopped too quickly which resulted in Mornay flipping over in her wheel chair, ultimately causing injuries that lead to her death. Id.

Applying the statutory exemption, the Mornay court reasoned that because the van was retrofitted to transport a wheelchair, and, because of this modification, the van was only "capable," as the term is used in O.G.G.A § 40-1-100(12)(viii), of transporting one passenger in a wheelchair and three ambulatory passengers. Id at 114. Despite the vans original design of carrying at least 12 people, it was not capable of transporting more than 10 persons. Therefore, because the van was used exclusively for medical transport and was not capable of transporting more than 10 persons, the van was not a motor carrier under O.C.G.A. § 40-1-100(12)(A).

Since an ambulance and a non-emergency medical transport vehicle can be classified under a specific statutory exemption pursuant to O.C.G.A. § 40-1-100(12)(B), an additional issue to consider is whether the high standard of care required for a "common carrier of passengers" is applicable when the exemption applies. O.C.G.A. § 46-9-1 statutorily establishes a high standard of care for "common carriers." The statute states that "carriers as such are bound to exercise ordinary diligence" and "common carriers" as such are bound to use extraordinary diligence, and in cases of loss the presumption of law is against them, and no excuse avails them unless the loss was occasioned by the act of God or the public enemies of the state." Additionally, O.C.G.A. § 46-9-132 provides that a "carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence." It's interesting to note that while the previous Code section used the term "common carriers," O.C.G.A. § 40-1-100 did not carry this term forward, instead opting for the term "motor carrier." Therefore, "common carriers" and "motor carriers" most likely classify as one in the same for liability purposes under O.C.G.A. § 46-9-1. See Ga. Law of Torts § 26:5, footnote 5.

Prior to the 2012 enactment of the Georgia Motor Carrier Act, the court held that an ambulance is a common carrier, and therefore subject to the heightened standard of extraordinary diligence pursuant to O.C.G.A § 46-9-1. Bricks v. Metro Ambulance Service, Inc., 177 Ga. App. 62 (1985). But the Georgia Court of Appeals relied heavily on the repealed statutory definition of "common carrier," which has since been replaced by the current statutory authority found in O.C.G.A. § 40-1-100. This statute now defines common carriers as motor carriers, and expressly exempts ambulances, among others, from the statutory definition of motor carrier. Therefore, it seems that an argument can be made that an ambulance is no longer subject to the high standard of care under O.C.G.A. § 46-9-1, because an ambulance is exempt from the statutory definition of a motor carrier. See O.C.G.A § 40-1-100(B)(viii). As a consequence, the high standard of care for common carriers established in O.C.G.A. 46-9-1 may not apply to ambulances or any other exempt vehicles, such as non-emergency transport vehicles, under this statutes authority. To date, no Georgia Court of Appeals decision has decided whether an ambulance or non-emergency transport vehicle, as exempted from the definition of motor carrier (or common carrier), precludes it from the high standard of care under O.C.G.A § 46-9-1 or O.C.G.A § 46-9-132. Ultimately, the heightened standard of care will likely apply in non-emergency vehicle cases, primarily because of well-established Georgia law and the unique control a non-emergency transport vehicle has over its passengers. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions