Blumsack v. Bartow County
| Decision Date | 29 October 1996 |
| Docket Number | No. A96A2146,A96A2146 |
| Citation | 223 Ga.App. 392,477 S.E.2d 642 |
| Parties | , 96 FCDR 3923 BLUMSACK et al. v. BARTOW COUNTY. |
| Court | Georgia Court of Appeals |
J. Phillip Boston, Evan M. Altman, for appellants.
Jenkins & Nelson, G. Carey Nelson III, Peter R. Olson, Cartersville, Carter & Ansley, Burke B. Johnson, Smith & Associates, Elisa A. R. Roberts, Jack O. Morse, Atlanta, for appellee.
Appellants appeal from the trial court's grant of summary judgment to Bartow County on March 6, 1996.
Mr. Blumsack ("the decedent") was severely injured, and subsequently died as a result of a collision which occurred on May 4, 1994, between the automobile he was driving and a pick-up truck which was owned by appellee and being driven by Charles A. Chesser, an employee of Jim Ellington d/b/a Jim Ellington Transmission ("Jim Ellington"). At the time of the collision, appellee's truck was being test-driven, following a transmission repair at Jim Ellington. The decedent was exiting his employer's parking lot and attempting to make a left-hand turn onto Bells Ferry Road. A large commercial truck with an attached long flat-bed trailer was parked on the southbound shoulder of Bells Ferry Road near the exit/entrance of such parking lot. When the decedent exited the parking lot, Mr. Chesser, who was travelling southbound on such road, collided with the driver's side of the decedent's vehicle. The original bumper on the front of appellee's truck had been replaced with a "bumper/bracket" that had been fabricated (manufactured) and attached to the subject pick-up truck by an employee of appellee. Such "bumper/bracket" served as a mounting point for an electric winch and removable boom which were used for the purpose of maintaining the appellee's water and sewer department's sewage pump stations. At the time of the subject collision, appellee had a policy of insurance which listed the subject vehicle.
1. Appellants argue in their first enumeration of error that the "trial court erred in granting summary judgment as the appellee's policy of liability insurance, which covered appellee for its own negligence, under Georgia law waived sovereign immunity to the extent of the policy limits of the insurance coverage."
In general, counties have sovereign immunity under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. Sovereign immunity can only be waived by an act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of such waiver. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995). 1
Pursuant to OCGA § 33-24-51(a), a county has the authority to "secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury ... arising by reason of ownership, maintenance, operation, or use of any motor vehicle by ... (the) county...." Subsection (b) of this statute provides that if the county "provide[s] liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased." OCGA § 33-24-51(a) gives counties the right to purchase insurance; OCGA § 33-24-51(b) describes when insurance operates to waive sovereign immunity.
Subsection (a) is a very broad grant of power to buy insurance, and allows a county to purchase insurance for liability to any person for personal or property damage that arises out of the use, ownership, or maintenance of a vehicle, whether the vehicle is being used in a governmental capacity or not. However, subsection (b) creates a more limited circumstance where immunity is waived by the insurance. Immunity is waived under subsection (b) only to the extent a county purchases "insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties." Even though a county may purchase insurance on county vehicles being used in non-governmental undertakings, subsection (b) does not waive immunity unless the negligent act was caused by the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties. The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to damages caused by the county's negligence unless the negligence of its officers, agents, servants, attorneys, or employees arises from the use of a motor vehicle. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994); accord Woodard, supra.
At the time of the accident, appellee had purchased a policy of insurance which covered the subject vehicle. However, the policy excluded from coverage as an insured anyone "using a covered 'auto' while he or she is working in the business of selling, servicing, repairing, or parking 'autos' unless that business is yours." (Emphasis supplied.) The facts are undisputed that appellee's truck had been taken to Jim Ellington for repair work. At the time of the accident, the truck was being test driven by an employee of Jim Ellington. Therefore, the driver of the vehicle would not be an insured under the terms and conditions of appellee's policy of insurance, and appellee would not have insurance coverage for this incident. Thus, since OCGA § 33-24-51(b) waives sovereign immunity only to the extent that appellee has insurance, sovereign immunity has not been waived by appellee for any claim due to the negligence of the driver of the truck under the theories of vicarious liability, imputed liability from ownership, or respondeat superior. See Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987); Mims v. Clanton, 215 Ga.App. 665, 452 S.E.2d 169 (1994); DeKalb County School Dist. v. Bowden, 177 Ga.App. 296, 339 S.E.2d 356 (1985).
However, appellants allege that, even if appellee did not have insurance coverage that covered the county truck while it was in the exclusive possession of Jim Ellington, appellee did, in fact, have a liability insurance policy that covered negligence relating to "ownership" and/or "maintenance" of the vehicle, and that appellee's act of replacing the original truck bumper with one that had been fabricated (manufactured) by an employee of appellee was a negligent act which, combined with the negligence of the other defendants in this action, resulted in the death of the deceased. 2
When appellee delivered its truck to Jim Ellington for the purpose of repair, and surrendered the entire control of the vehicle to Jim Ellington, the relationship between appellee and Jim Ellington was not one of master and servant or principal and agent, but was one of bailment. Appellee, because of mere ownership, would not be liable...
To continue reading
Request your trial
-
Coffey v. Brooks County
...the narrow interpretation given to OCGA § 33-24-51 with regard to waiver of sovereign immunity, see, e.g., Blumsack v. Bartow County, 223 Ga.App. 392, 396(1), 477 S.E.2d 642, any claim against Rowe in his official capacity that he had failed to report the flooded road's condition while acti......
-
Chamlee v. Henry County Bd. of Educ.
...452 S.E.2d 476; Woodard, 265 Ga. 404, 456 S.E.2d 581; Long, 219 Ga.App. at 856-857, 467 S.E.2d 186; and Blumsack v. Bartow County, 223 Ga.App. 392, 393-396(1), 477 S.E.2d 642 (1996), for the rule that sovereign immunity is waived only if an official representative of the Board acting in his......
-
Simmons v. Coweta County
...arises from the use of a motor vehicle. Gilbert v. Richardson, supra; accord Woodard v. Laurens County, supra; Blumsack v. Bartow County, 223 Ga.App. 392, 477 S.E.2d 642 (1996); see also Crider v. Zurich Ins. Co., 222 Ga.App. 177, 474 S.E.2d 89 (1996). For purposes of waiver of sovereign im......
-
Seay v. Cleveland
...immunity through the purchase of automobile liability insurance, is limited to the facts of that case); Blumsack v. Bartow County, 223 Ga.App. 392, 396, 477 S.E.2d 642 (1996) (finding that the purchase of liability insurance for the operation of a vehicle does not waive immunity for actions......
-
Local Government Law - R. Perry Sentell Jr.
...student. Id. 281. Id. at 184, 521 S.E.2d at 80. 282. Id. at 189, 521 S.E.2d at 83. 283. The court said that Blumsack v. Bartow County, 223 Ga. App. 392, 477 S.E.2d 642 (1996), "held that sovereign immunity is waived only if the negligent act arises from the 'use' of the vehicle, as opposed ......
-
Local Government Law - R. Perry Sentell, Jr.
...district's immunity. Id. at 667, 482 S.E.2d at 285. Justice Fletcher dissented without opinion. 258. O.C.G.A. Sec. 33-24-51 (1996). 259. 223 Ga. App. 392, 477 S.E.2d 642 (1996). 260. Id. at 392, 477 S.E.2d at 642. The driver was an employee of a transmission shop at which the truck had been......
-
What's the "use": Vehicle Maintenance Liability Barred by Sovereign Immunity Amendment Intended to Promote Waiver
...at 82.22. Id.23. Id. at 188-89, 521 S.E.2d at 82-83.24. In so ruling, the Georgia Court of Appeals overruled Blumsack v. Bartow County, 223 Ga. App. 392, 477 S.E.2d 642 (1996). In Blumsack, a county vehicle collided with a citizen's vehicle, killing the citizen driver as he pulled out of a ......
-
Education Law - Jerry A. Lumley
...184-85, 521 S.E.2d at 80 (citing O.C.G.A. Sec. 33-24-51(b)). 303. Id. at 186, 521 S.E.2d at 81. 304. Id. at 187, 521 S.E.2d at 82. 305. 223 Ga. App. 392, 477 S.E.2d 642 (1996), overruled by Chamlee v. Henry County Bd. of Educ. 306. Id. at 396, 477 S.E.2d at 646. 307. 239 Ga. App. at 188, 52......