                                United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 96-8998.

 Craig C. DeHART; Jeannie I. DeHart, As the parents and Natural Guardians and Conservators
of Adam Shane DeHart, Plaintiffs-Appellees,

                                                v.

            LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant.

                                         Jan. 23, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-
1627-CC), Clarence Cooper, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

       PER CURIAM:

       CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO ARTICLE

VI, SECTION VI, PARAGRAPH IV, OF THE GEORGIA CONSTITUTION.

       TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES

THEREOF:

       In this action in diversity, Craig C. DeHart and Jeannie I. DeHart ("the DeHarts") seek a

declaration that a liability insurance policy issued by Liberty Mutual Insurance Company ("Liberty

Mutual") to Senn Trucking Company of Georgia, Inc. ("Senn Trucking Company") was in effect on

May 26, 1988; on that date, a Senn Trucking Company employee caused an automobile collision



   *
     Honorable Stanley Marcus was a U.S. District Judge of the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997 he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
to occur that resulted in catastrophic injury to the DeHarts' son, Adam Shane DeHart. Because this

case presents unresolved questions of Georgia law that are determinative of this appeal, we defer

our decision pending certification of several issues posed by the parties to the Supreme Court of

Georgia. See Gossard v. Adia Services, Inc., 120 F.3d 1229, 1230 (11th Cir.1997).

                                             I. FACTS

       For purposes of the issues presented for certification, the following facts underlying this

appeal are undisputed: The Georgia Public Service Commission ("GPSC") has promulgated

regulations providing that motor carrier liability insurance policies properly registered with the

GPSC are continuous until not less than thirty days after the GPSC receives actual written notice that

such coverage will terminate. See R1-17, Exh. F. The regulations further require that insurers certify

coverage by filing a "Form E" and provide notice of termination of coverage by filing a "Form K."

See R1-9 at 2 (describing certification and cancellation procedures under GPSC regulations). Under

Georgia law, a person having a cause of action in tort or contract against a motor carrier may join

in the same action both the motor carrier and its insurance carrier. See O.C.G.A. § 46-7-12(e).

       Liberty Mutual filed Form E certificates of liability insurance coverage with the GPSC on

June 26, 1986, certifying that it provided liability insurance coverage for Senn Trucking Company.

The language of the policy specified that the term of the policy was in effect from June 26, 1986,

through May 26, 1987. On May 27, 1987, the policy issued by Liberty Mutual to Senn Trucking

Company expired by its own terms. Liberty Mutual, however, did not file a Form K with the GPSC

advising that the policy had been terminated. On that same date, Senn Trucking Company acquired

a liability insurance policy from National Continental Insurance Company.

       On May 26, 1988, an automobile collision involving a Senn Trucking Company vehicle and

an automobile in which Adam Shane DeHart was a passenger occurred on a highway in North
Carolina. As previously stated, this accident resulted in serious bodily injury to DeHart. At the time

of this incident, Liberty Mutual's Form E providing notice of its coverage of Senn Trucking

Company continued to be on file with the GPSC; at the same time, Senn Trucking Company also

received coverage purchased from National Continental Insurance Company.

        The DeHarts initially filed suit for damages in state court against, inter alia, Senn Trucking

Company, National Continental Insurance Company, and Liberty Mutual. The DeHarts and Liberty

Mutual each moved for summary judgment, which was denied by the trial court. The Georgia Court

of Appeals reversed as to the denial of summary judgment on behalf of Liberty Mutual and, after

determining that it was bound by National Union Fire Ins. Co. v. Marty, 197 Ga.App. 642, 399

S.E.2d 260 (Ga.Ct.App.1990)1, resolved that Liberty Mutual had been joined improperly under

Georgia law because the accident had occurred outside the state of Georgia. See Liberty Mut. Ins.

Co. v. Dehart, 206 Ga.App. 858, 426 S.E.2d 592 (1992).

        The DeHarts subsequently filed the instant action in federal district court seeking declaratory

relief in the form of a determination as to whether Liberty Mutual was liable to satisfy all or part of

the judgment sought against Senn Trucking Company. Specifically, the DeHarts requested that the

court decide whether Georgia's regulatory scheme concerning continuous coverage in the absence

of official notice of termination applied in this instance; that is, whether Liberty Mutual's liability

insurance policy "extended by operation of law, beyond the initial term thereof, and so as to include

the date of loss in this case, by reason of [Liberty Mutual's] ... failure to file an effective notice of

cancellation of the said liability insurance policy with the Georgia PSC." R1-9 at 3. Again, both


   1
    In Marty, the Georgia Court of Appeals decided that Georgia law authorizing joinder of
motor carriers and their respective liability insurers in a direct prejudgment action did not apply
when the accident giving rise to suit had occurred outside the state of Georgia. See Marty, 197
Ga.App. at 643-44, 399 S.E.2d at 262 (where accident occurred in Florida, "joinder of the motor
carrier's insurer was not authorized by Georgia's direct action statute.").
parties moved for summary judgment. The district court reasoned that Johnson v. Woodard, 208

Ga.App. 41, 429 S.E.2d 701 (Ga.Ct.App.1993) (en banc ), a case decided by the Georgia Court of

Appeals subsequent to Marty, dictated that, notwithstanding the expiration of Liberty Mutual's

policy with Senn Trucking Company, Liberty Mutual's failure to file the requisite Form K with the

GPSC rendered the policy effective as to the general public on the date of the accident.2 As a result,

the court concluded that Liberty Mutual was subject to liability for damages in the action against

Senn Trucking Company and granted summary judgment in favor of the DeHarts.

                                        II. CONTENTIONS

        On appeal, Liberty Mutual argues that the applicable statutory language establishing the

GPSC and prescribing its jurisdiction expressly limits its regulatory reach to the public highways

of the state of Georgia. As a result, Liberty Mutual contends, the continuous coverage regulations

at issue here are not applicable to extra-territorial operations of a motor carrier certified by the

GPSC. In support of this proposition, Liberty Mutual suggests that Georgia statutory and decisional

law implicitly have restricted the jurisdiction of the GPSC to the regulation of common carriers upon

the highways of this state. For instance, Liberty Mutual points to statutory language establishing

the regulatory power of the GPSC:

                [T]he Commission is vested with power to regulate the business of any person
        engaged in the transportation as a common carrier of persons or property, either or both, for
        hire by motor vehicle on any public highway of this state.

O.C.G.A. § 46-7-2. Liberty Mutual additionally notes a statutory distinction between interstate and

intrastate commerce as evidence that regulations promulgated by the GPSC were intended to have

no extra-territorial effect:

                In circumstances where a motor common or contract carrier is engaged in both


   2
    The parties agree that Marty and Woodard are in direct conflict.
       interstate and intrastate commerce, it shall nevertheless be subject to all the provisions of this
       article so far as it separately relates to commerce carried on exclusively in this state. It is not
       intended that the Georgia Public Service Commission shall have the power of regulating the
       interstate commerce of such motor common or contract carrier, except to the extent
       expressly authorized by this article as to such commerce.... When a motor common carrier
       is engaged in both intrastate and interstate commerce, it shall be subject to all the provisions
       of this article so far as they separately related to commerce carried on in this state.

Ga.Code Ann. § 46-7-36.

       Liberty Mutual also points to decisions of the Georgia courts that tend to support its view

of the territorial reach of the GPSC. See, e.g., Marty, 197 Ga.App. at 643, 399 S.E.2d at 262 ("[T]he

cases cited by plaintiff provide no authority for the joinder of the insurer when the accident occurred

outside the State of Georgia."); Dehart, 206 Ga.App. at 859, 426 S.E.2d at 593 ("[T]he purposes

of the statute and the State's interest in ensuring and expediting compensation of injured parties are

not implicated where the accident does not occur in the State.").

       Liberty Mutual further suggests that, even if we were to conclude that the GPSC regulation

requiring continuous coverage of a motor carrier absent the filing of a Form K obtains with equal

force when the loss occurs outside the state of Georgia, public policy concerns militate against

applying this continuous coverage provision when the motor carrier has procured identical coverage

from another insurer and that subsequent coverage was in effect at the time of the loss.

       The DeHarts submit that in Johnson v. Woodard, the Georgia Court of Appeals

authoritatively determined that the territorial scope of the GPSC's regulatory framework is not

confined to the state of Georgia. The DeHarts further contend, therefore, that Liberty Mutual's

reliance on judicial construction of statutory language relating to the establishment and jurisdiction

of the GPSC in cases such as Marty and its progeny is misplaced because Johnson, which controls

the outcome of this case, effectively overruled Marty. The DeHarts additionally aver that Liberty

Mutual's contention regarding the "stacking" of insurance policies finds no basis in either the plain
language of Georgia's statutes or the decisions of Georgia's courts.

                               III. QUESTIONS TO BE CERTIFIED

          1. Does the GPSC regulatory provision mandating that motor carrier liability insurance

policies properly registered with the GPSC are continuous until not less than thirty days after the

GPSC receives actual written notice that such coverage will terminate—i.e., the continuous coverage

provision—have extraterritorial application such that coverage is mandated when a motor vehicle

collision occurs outside the state of Georgia?

          2. Where an insurer has certified to the GPSC that it insures a Georgia motor carrier and,

notwithstanding the expiration of the policy in question, fails to notify the GPSC that such

certification has been canceled prior to the loss, and the motor carrier subsequently purchases a

second policy also in effect at the time of the loss, does Georgia law permit extension of the GPSC

continuous coverage provision to provide "stacking" of the two policies with respect to the motoring

public?

          Our statement of the questions to be certified is intended as a guide and is not meant to

restrict the scope of inquiry by the Supreme Court of Georgia. The entire record of this case,

together with copies of the briefs, shall be transmitted to the court.

          QUESTIONS CERTIFIED.
