Adams v. Coweta County, A92A2130

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: POPE; CARLEY, P.J., and JOHNSON
• Citation: 208 Ga.App. 334,430 S.E.2d 599
• Parties: ADAMS et al. v. COWETA COUNTY et al.
• Docket Number: No. A92A2130,A92A2130
• Decision Date: 01 March 1993

Page 599

430 S.E.2d 599 208 Ga.App. 334 ADAMS et al.
v.
COWETA COUNTY et al. No. A92A2130. Court of Appeals of Georgia. March 1, 1993.
Reconsiderations Denied April 1, 1993.
Certiorari Denied Oct. 5, 1993.

Page 600

[208 Ga.App. 337] Novy, Jaymes & Vaughan, Eugene Novy, Deborah M. Vaughan, Atlanta, for appellants.

Michael J. Bowers, Atty. Gen., Charles M. Richards, Sr. Asst. Atty. Gen., Freeman & Hawkins, H. Lane Young II, Kimberly A. Houston, Atlanta, Glover & Davis, Newman, A. Mitchell Powell, Drew, Eckl & Farnham, W. Wray Eckl, Dennis, Corry, Porter & Gray, James S. Strawinski, Atlanta, for appellees.

[208 Ga.App. 334] POPE, Chief Judge.

Edward F. Adams II and Joseph Thierry were injured and Barbara Jean Bell was killed when the truck in which they were riding struck a guardrail on the Andrew Bailey Road Bridge in Coweta County. Adams, by his next friend, Edward F. Adams, Thierry and Ms. Bell's mother ("plaintiffs") brought a multi-count complaint against defendant/appellees Coweta County, Coweta County Department of Public Works, John Doe Employees of Coweta County ("Coweta County") and others, contending, inter alia, that the guardrails on the bridge were negligently designed, installed, maintained and repaired. Coweta County filed a motion to dismiss on the basis of sovereign immunity and plaintiffs' failure to file an expert affidavit with their complaint as required by OCGA § 9-11-9.1. The trial court granted the motion, and plaintiffs timely filed their appeal to this court.

1. Plaintiffs first contend that the trial court erred in granting Coweta County's motion to dismiss on the issue of sovereign immunity. We agree. "[T]he ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983 'must have prospective effect only and does not act to withdraw any waiver of sovereign [208 Ga.App. 335] immunity for actions pending on January 1, 1991, the amendment's effective date.' Donaldson v. Dept. of Transp., 262 Ga. 49, 54, 414 S.E.2d 638 [ (1992) ]. 'Under Georgia law, a waiver of sovereign immunity occurs at the time that the cause of action arises. Donaldson, supra. Therefore, sovereign immunity (is) waived to the extent of available insurance coverage as to any cause of action that accrued before the effective date of the constitutional amendment. The waiver was not withdrawn by the passage of the constitutional amendment and remains effective regardless of whether the action was filed before or after the effective date of the amendment.' Curtis v. Bd. of Regents etc., 262 Ga. 226, 228, 416 S.E.2d 510 [ (1992) ]. In the case at bar, although the complaint was filed after the effective date of the statute, it has not been controverted that the cause of action accrued before January 1, 1991. Accordingly, the waiver of any existing defense of sovereign immunity has not been withdrawn in this case." Dozier v. Clayton County Hosp. Auth., 206 Ga.App. 62, 63, 424 S.E.2d 632 (1992). See also Collier v. Whitworth, 205 Ga.App. 758, 423 S.E.2d 440 (1992); Rogers v. Sharpe, 206 Ga.App. 353, 425 S.E.2d 391 (1992).

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