Board of Regents of University System of Georgia v. Daniels
| Decision Date | 06 June 1994 |
| Docket Number | No. S93G1114,S93G1114 |
| Citation | 264 Ga. 328,446 S.E.2d 735 |
| Court | Georgia Supreme Court |
| Parties | , 93 Ed. Law Rep. 404 BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DANIELS et al. |
Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Alfred L. Evans, Jr., Sr. Asst. Attys. Gen., Atlanta, for appellant.
William J. Murray, Americus, for appellees.
This case presents procedural questions regarding the resolution of a defense of sovereign immunity. We granted certiorari to the Court of Appeals in Board of Regents of the University System of Georgia v. Daniels, 208 Ga.App. 195, 430 S.E.2d 45 (1993) to consider that court's decision in light of our recent opinion in Georgia Dept. of Human Resources v. Poss, 263 Ga. 347, 434 S.E.2d 488 (1993). We conclude the Court of Appeals erred in affirming the trial court's dismissal of the Board's claim of sovereign immunity, and remand for a determination of that issue.
The Daniels, plaintiffs in this wrongful death action, received a $1.5 million judgment against the various defendants, including the Board of Regents of the University System of Georgia, two full-time employees of the University System, and a Fort Valley State College student. Thereafter, the Court of Appeals reversed the judgment regarding the full-time employees, but affirmed against the Board and the Fort Valley State College student. Walker v. Daniels, 200 Ga.App. 150, 407 S.E.2d 70 (1991). The Board acknowledges waiver of sovereign immunity in the amount of $250,000, the coverage afforded under its policy of self-insurance. There is, however, certain excess coverage under a policy issued by the Department of Administrative Services (DOAS). This policy plainly covered the full-time university employees, but, by virtue of the holding in Walker, supra, they are no longer defendants. The Board asserts that the Fort Valley State College student is not an insured under the excess policy, and argues that the DOAS position to that effect controls. Without making a finding regarding the issue of coverage under the DOAS excess policy, the trial court dismissed the Board's motion to limit the judgment in this case to $250,000. 1
In Poss, we held that a waiver of sovereign immunity, i.e., the existence of coverage under an insurance policy, must be established by the party seeking to benefit from that waiver, and any implication to the contrary by the Court of Appeals is disapproved. Thus, the Daniels have the burden of establishing that the Board had waived sovereign immunity by obtaining liability insurance covering the Daniels' claim. Id. at 348(1), 434...
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