Bomia v. Ben Hill Cnty. Sch. Dist.

• Decision Date: 15 March 2013
• Docket Number: No. A12A1852.,A12A1852.
• Citation: 740 S.E.2d 185,320 Ga.App. 423
• Parties: BOMIA v. BEN HILL COUNTY SCHOOL DISTRICT, et al.
• Court: Georgia Court of Appeals

320 Ga.App. 423

740 S.E.2d 185

BOMIA

v.BEN HILL COUNTY SCHOOL DISTRICT, et al.

No. A12A1852.

Court of Appeals of Georgia.

March 15, 2013.

Dewey N. Hayes, Jr., Douglas, for Appellant.

Watson Spence, John M. Stephenson, Albany, for Appellees.

MILLER, Presiding Judge.

Deborah Bomia sued the Ben Hill County School District (the “ School District”) and its transportation director, Angie Dopson, for malicious prosecution, false arrest and wrongful discharge arising from Bomia's actions in leaving the scene and failing to report an accident involving the school bus she was operating. The trial court granted summary judgment to the defendants, finding that sovereign immunity barred Bomia's claims. Bomia appeals, contending that sovereign and official immunity did not bar her claims against the School District or Dopson.¹ For the reasons that follow, we affirm.

“On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations and punctuation omitted.) Campbell v. Landings Assn., 289 Ga. 617, 618, 713 S.E.2d 860 (2011).

So viewed, the evidence shows that Bomia was employed as a school bus driver with the School District. In January 2009, Bomia was operating a School District bus when she was involved in a motor vehicle accident. Bomia continued on her route and did not report the accident to law enforcement because she did not consider the damage to be significant.

Dopson subsequently reported the accident to the Ben Hill County Sheriff's Office. Dopson also went to the sheriff's department to request a copy of the police report. The sheriff's office issued a traffic citation to Bomia for violating OCGA § 40–6–273 (Failure to Report an Accident).² An application for a criminal warrant was prepared stating that Bomia had committed the offense of hit and run or leaving the scene of an accident. Following a hearing, the magistrate court dismissed the warrant application, and the traffic citation was also dismissed. Bomia was never arrested, placed in custody or detained as a result of the citation or the application for a criminal warrant.

The School District terminated Bomia's employment for violation of local procedures and state bus driver laws, failing to report an accident and leaving the scene of an accident. The School District also sued Bomia to recoverfor the damage to the school bus, and obtained a judgment against her in the amount of $1,000. Bomia did not assert any counterclaims against the School District in this suit. Instead, Bomia filed the instant suit against the School District and Dopson, individually and in her official capacity, raising claims of malicious prosecution, false arrest and wrongful discharge. The School District and Dopson answered, raising the defenses of sovereign and official immunity. The School District and Dopson also filed a motion for summary judgment on these grounds, and the trial court granted their motion.

Bomia contends that sovereign and official immunity did not bar her claims against the School District or Dopson. We disagree.

Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [S]tate, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [Bomia], not [the School District or Dopson], had the burden of [proof on this issue].

(Punctuation and footnotes omitted.) Georgia Dept. of Corrections v. James, 312 Ga.App. 190, 193, 718 S.E.2d 55 (2011).

Under Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, sovereign immunity extends to a county-wide school district, such as the School District. See Coffee County School Dist. v. Snipes, 216 Ga.App. 293, 294, 454 S.E.2d 149 (1995). Except as specifically provided in the Georgia Constitution, a school district's sovereign immunity may only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is waived and the extent of such a waiver. See Ga. Const., Art. I, Sec. II, Par. IX(e); see also Coffee County, supra, 216 Ga.App. at 294, 454 S.E.2d 149. Additionally, to the extent Bomia sued Dopson in her official capacity, it is well settled that suits against public employees in their official capacities are in reality suits against the State, and therefore involve sovereign immunity. See Cameron v. Lang, 274 Ga. 122, 126(3), 549 S.E.2d 341 (2001); Gilbert v. Richardson, 264 Ga. 744, 750(4), 452 S.E.2d 476 (1994).

The Georgia Tort Claims Act (“GTCA”), OCGA § 50–21–20 et seq., grants some waivers to the State's immunity; however, the GTCA expressly excludes school districts. See OCGA § 50–21–22(5). For losses arising out of claims for the negligent use of a covered motor vehicle, sovereign immunity for local government entities, such as the School District, is waived up to certain limits which are increased to the extent that local government entities purchase commercial liability insurance in excess of the set limits. See OCGA § 36–92–2(a)(3), (d)(3). However, the School District's liability for damages in excess of the amount of immunity waived under OCGA § 36–92–2 applies only to damages which are sustained while such liability insurance is in force and only to the extent of the limits or coverage of the insurance policy. See OCGA § 33–24–51(c).

1. In this case, the School District enjoyed sovereign immunity. See Coffee County, supra, 216 Ga.App. at 294, 454 S.E.2d 149. Nevertheless, Bomia argues that the School District waived its immunity up to the limits of its insurance coverage.

As the party seeking to benefit from a waiver, Bomia had the burden of establishing such waiver. See Georgia Dept. of Corrections, supra, 312 Ga.App. at 193, 718 S.E.2d 55. Furthermore, because Bomia is claiming that sovereign immunity was waived by the purchase of insurance, she had the burden of establishing that insurance protection covering her claims was procured and the limits of the insurance coverage available. See Woodard v. Laurens County, 265 Ga. 404, 406(1), 456 S.E.2d 581 (1995). However, Bomia points to no evidence in the record, and we have found none, showing the existence of a liability insurance policy. Moreover, Bomia failed to show that the waiver of immunity under OCGA § 36–92–2(a) for the negligent use of motor vehicles applied to her claims for malicious prosecution, false arrest and wrongful discharge because the School District's alleged liability for those claims was not predicated upon the School District 's negligent use of a motor vehicle. See Woodard, supra, 265 Ga. at 406(1), 456 S.E.2d 581; see also Tittle v. Corso, 256 Ga.App. 859, 864(2), 569 S.E.2d 873 (2002) (holding that waiver of immunity under OCGA § 33–24–51 did not apply because sheriff's deputy was not using patrol vehicle when alleged torts occurred). Since Bomia has failed to establish the waiver of sovereign immunity, her claims against the School District and Dopson in her official capacity were barred. See Teston v. Collins, 217 Ga.App. 829, 831(2), 459 S.E.2d 452 (1995).

2. Bomia also argues that Dopson was not entitled to immunity from suit in her individual capacity...