Board of Regents of University System of Georgia v. Daniels, A92A2051

• Decision Date: 03 March 1993
• Docket Number: No. A92A2051,A92A2051
• Citation: 208 Ga.App. 195,430 S.E.2d 45
• Parties: , 83 Ed. Law Rep. 473 BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DANIELS, et al.
• Court: Georgia Court of Appeals

Page 45

430 S.E.2d 45

208 Ga.App. 195, 83 Ed. Law Rep. 473

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. DANIELS, et al.

No. A92A2051.

Court of Appeals of Georgia.

March 3, 1993.

Reconsideration Denied March 29, 1993.

Certiorari Granted Nov. 10, 1993.

Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Alfred L. Evans, Jr., Sr. Asst. Attys. Gen., for appellant.

William J. Murray, Americus, for appellees.

COOPER, Judge.

In this wrongful death action, we granted appellant's application for discretionary appeal to determine whether the trial court erred in denying appellant's motion to modify the judgment against it on sovereign immunity grounds following this court's decision in an earlier appeal that two of appellant's employees could not be liable as a matter of law. See Walker v. Daniels, 200 Ga.App. 150(1), 407 S.E.2d 70 (1991).

Appellees' son drowned in a campus pool. On the evening of the drowning, appellant's employees had closed and locked the pool, cancelling the usual recreational swim period because they had not hired lifeguards for the new term. However, two students who had worked as lifeguards at the pool in the past convinced the campus police dispatcher to have a policeman unlock the pool. The pool was opened, with those two students serving as lifeguards, and the drowning occurred. Appellees sued appellant and various individuals. After a jury trial, judgment for $1,500,000 was entered against appellant, two of appellant's full-time employees and one of the student lifeguards. On appeal, we reversed the judgment as to the two full-time employees but affirmed as to appellant and the student lifeguard. Appellant then moved to limit the judgment on sovereign immunity grounds to $250,000, the coverage available under its self-insurance plan. Appellant argued that its excess insurance policy would have covered the liability of the full-time employees, but did not cover the liability of the student lifeguard. Appellant's motion was denied and this appeal followed.

The parties agree that appellant's waiver of immunity in this case is governed by former Ga. Const.1983, Art. I, Sec. II, Par. IX, which provided that the sovereign immunity of a State agency with respect to a tort claim was waived if and to the extent the claim was covered by insurance. See Price v. Dept. of Transp., 257 Ga. 535, 361 S.E.2d 146 (1987). At the time this drowning occurred, appellant had two insurance policies in effect. The first was a self-insurance plan and covered the liability of insureds up to $250,000 per occurrence. The second was a comprehensive general liability insurance policy issued and administered by the Department of Administrative Services ("DOAS"), another State agency, which covered the liability of insureds up to $5,000,000 per occurrence. Both policies contained almost identical provisions which...