National Indemnity Company v. Ghaith Khudhair ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 27, 2018
The Court of Appeals hereby passes the following order:
A18I0126. NATIONAL INDEMNITY COMPANY v. GHAITH KHUDHAIR.
A18I0127. DABAKH FREIGHT SERVICES v. GHAITH KHUDHAIR.
On June 8, 2014, in South Carolina, a tractor-trailer driven by Fabakary
Jammeh rear-ended Ghaith Khudhair’s vehicle. Jammeh was transporting goods from
Atlanta to New Jersey for Dabakh Freight Services, Inc., a Georgia corporation that
maintained a business automobile liability insurance policy with National Indemnity
Company.
Khudhair subsequently filed this negligence action against Jammeh, Dabakh
Freight Services, and National Indemnity Company. National Indemnity Company
filed a motion for summary judgment and argued, inter alia, that application of OCGA
§ 40-2-140 (d) (4) to allow for a direct action against it as an insurer of a motor
carrier engaged in interstate commerce would render the statute unconstitutional
under Georgia Supreme Court precedent.1 Jammeh and Dabakh Freight Services each
filed motions for partial summary judgment on other grounds. The trial court issued
an order denying all of the summary judgment motions, finding, inter alia, that OCGA
§ 40-2-140 (d) (4) allows for a direct action against National Indemnity Company.
In Case No. A18I0126, National Indemnity Company has filed an application for
interlocutory review of the denial of its motion for summary judgment. It reiterates
its constitutional argument in its application. In Case No. A18I0127, Jammeh and
1
Khudhair maintains that National Indemnity Company improperly raised this
constitutional issue for the first time in its reply brief in support of its summary
judgment motion.
Dabakh Freight Services have filed an application for interlocutory review of the
denial of their motions for partial summary judgment.
The Georgia Supreme Court “has exclusive jurisdiction over all cases involving
construction of the Constitution of the State of Georgia and of the United States and
all cases in which the constitutionality of a law, ordinance, or constitutional provision
has been called into question.” Atlanta Independent School System v. Lane, 266 Ga.
657, 657 (1) (469 SE2d 22) (1996); Ga. Const. of 1983, Art. VI, Sec. VI, Para. II (1).
In light of National Indemnity Company’s constitutional argument below, the trial
court’s finding that OCGA § 40-2-140 (d) (4) allows for a direct action against it
appears to be “effectively a distinct ruling on the constitutional issues.” See Rouse
v. Dept. of Natural Resources, 271 Ga. 726, 728 (1) (524 SE2d 455) (1999); see also
Hancock County v. Williams, 230 Ga. 723, 724 (1) (198 SE2d 659) (1973). Thus, this
case appears to fall within the Supreme Court’s exclusive subject-matter jurisdiction.
We further note that the Supreme Court has “the ultimate responsibility for construing
the constitutional provisions regarding appellate jurisdiction.” Saxton v. Coastal
Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996).
Accordingly, Case No. A18I0126 is hereby TRANSFERRED to the Supreme
Court for disposition. In the interests of judicial economy and judicial comity, Case
No. A18I0127 is also TRANSFERRED to the Supreme Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/27/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.