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

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. 

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