Chamlee v. Henry County Bd. of Educ.

• Decision Date: 16 July 1999
• Docket Number: No. A99A0526.,A99A0526.
• Parties: CHAMLEE et al. v. HENRY COUNTY BOARD OF EDUCATION et al.
• Court: Georgia Court of Appeals

521 S.E.2d 78

236 Ga. App. 183

CHAMLEE et al. v. HENRY COUNTY BOARD OF EDUCATION et al.

No. A99A0526.

Court of Appeals of Georgia.

July 16, 1999.

Certiorari Denied October 29, 1999.

Eidson & Associates, James A. Eidson, Timothy R. Brennan, Hapeville, for appellants.

Smith, Welch & Brittain, A.J. Welch, Jr., McDonough, Harper, Waldon & Craig, Russell D. Waldon, Jonathan M. Adelman, Atlanta, for appellees.

POPE, Presiding Judge.

Samuel and Linda Jane Chamlee brought suit individually and on behalf of their son Samuel Chamlee, Jr. against Jeff Ianitello and the Henry County Board of Education arising out of a car accident. The Chamlees appeal summary judgment in favor of both defendants.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga.App. 802, 803, 500 S.E.2d 591 (1998); Lane v. Spragg, 224 Ga.App. 606, 481 S.E.2d 592 (1997). The record shows that Ianitello was employed by the Board as an automotive shop instructor at Henry County High School and that Samuel was a student in his class. As a part of the instruction, students got hands-on training by working on cars owned by students and teachers at the school. As a part of the class, Mike Felix, another student, or Samuel test drove a car owned by another teacher. During the test drive on public roads, Samuel was injured in an accident.

The Chamlees brought suit alleging that Ianitello negligently instructed and allowed Felix and Samuel to leave the classroom unsupervised, contrary to Board of Education rules, and that the Board failed to establish sufficient policies to protect against such an accident. The trial court granted summary judgment to Ianitello on the ground of official immunity and to the Board on the ground of sovereign immunity. The Chamlees appeal.

1. The court concluded Ianitello was performing discretionary functions when he supervised and controlled his shop class even though he may have acted in violation of specific school policies, and that he did not act maliciously or with intent to injure. Therefore he was covered by official immunity. See Perkins v. Morgan County School Dist., 222 Ga.App. 831, 835(2), 476 S.E.2d 592 (1996); Wright v. Ashe, 220 Ga.App. 91, 469 S.E.2d 268 (1996). The Chamlees contend that because Ianitello violated several school policies, his inadequate supervision of Samuel and Felix constituted negligent performance of ministerial duties, and therefore he was not entitled to official immunity.

The Chamlees identify three school policies allegedly violated. A review of the depositions of the principal and the assistant principal shows that the Chamlees completely failed to establish that any of the three so-called policies applied to the situation where a shop teacher might allow a student to test drive a car. In fact, both the principal and the vice-principal testified that there was no policy covering use by students of vehicles in the automotive shop class, nor is there one today.

Even if it is possible to construe these policies as applying to automotive shop class, Ianitello is protected from liability by official immunity. Official immunity "protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption." Guthrie v. Irons, 211 Ga.App. 502-503(1), 439 S.E.2d 732 (1993), disapproved on separate grounds, Gilbert v. Richardson, 264 Ga. 744, 750(4), 452 S.E.2d 476 (1994). The determination of whether an action is discretionary or ministerial must be made on a case-by-case basis, 211 Ga.App. at 504(2),439 S.E.2d 732, but monitoring, supervising and otherwise controlling students are considered discretionary acts. Perkins, 222 Ga.App. at 835(2),476 S.E.2d 592; Lewis v. McDowell, 194 Ga.App. 429, 431(3), 390 S.E.2d 605 (1990). Supervision of students is considered discretionary even where specific school policies designed to help control and monitor students have been violated. Perkins, 222 Ga.App. at 835(2),476 S.E.2d 592; Wright, 220 Ga.App. at 93-94,469 S.E.2d 268; see also Guthrie, 211 Ga.App. at 504-505(2),439 S.E.2d 732.

The policies at issue here all relate to the monitoring, supervision and control of students in and around the school during school hours and for extracurricular activities. As such, the implementation of those policies is discretionary in nature and therefore protected by official immunity. Perkins, 222 Ga.App. at 835, 476 S.E.2d 592; Wright, 220 Ga.App. at 93-94, 469 S.E.2d 268.

2. The Chamlees contend the court erred when it held both that the Board was immune from suit based on the doctrine of sovereign immunity and that immunity was not waived by the purchase of liability insurance pursuant to OCGA § 33-24-51.

Sovereign immunity can be waived only by a specific act of the General Assembly. Art. I, Sec. II, Par. IX. OCGA § 33-24-51(b) provides that sovereign immunity is waived if the pertinent subdivision of the state purchases insurance as described in OCGA § 33-24-51(a), ¹ but only if the insurance "provide[s] liability coverage for the negligence of a duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties" and only "to the extent of the amount of insurance so purchased." OCGA § 33-24-51(b). The mere purchase of insurance coverage does not constitute waiver. Woodard v. Laurens County, 265 Ga. 404, 405(1), 456 S.E.2d 581 (1995).

In this case, the Board identified two insurance agreements in response to the following interrogatory,

Please state whether there is in existence any insurance agreement under which any... insurance business may be liable to satisfy part or all of any judgment which may be entered in this action, or to indemnify or reimburse payments made to satisfy any such judgment.

The Board also indicated that one of the insurers had denied coverage under its policy. Neither policy is in the record. Construing this evidence and all inferences therefrom in favor of the Chamlees requires a conclusion that the Board has purchased the insurance described in OCGA § 33-24-51(a), i.e., insurance that covers claims arising out of the ownership, maintenance, operation, or use by the automotive shop class of any motor vehicle which is being examined or repaired by the class, regardless of whether it is owned by the school.

The next question is whether the Board's insurance policy covers "the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties." OCGA § 33-24-51(b). Again, without the policy and with a concession by the Board that there is some coverage, we must conclude that the identified policy or policies provide this coverage.

One question remains however. That is whether the claim arising out of the injuries in this case would be covered by the policy. Although, in determining whether there has been a waiver, similar cases speak only in terms of whether the defendant has purchased the type of insurance described in OCGA § 33-24-51(b), ultimately these cases examine whether the facts of the case fall within such coverage. See, e.g., Butler v. Dawson County, 238 Ga.App. 808, 518 S.E.2d 430 (1999) (no waiver despite insurance where damages caused by county's negligence not connected with motor vehicles); Saylor v. Troup County, 225 Ga.App. 489, 490, 484 S.E.2d 298 (1997) (no waiver because injury not covered by the policy); Lincoln County v. Edmond, 231 Ga.App. 871, 873-874(1), 501 S.E.2d 38 (1998) (no waiver because non-use of motor vehicle not encompassed in definition of policy in OCGA § 33-24-51(a)); Long v. Hall County Bd. of Commrs., 219 Ga.App. 853, 857(2)(b), 467 S.E.2d 186 (1996) (no waiver because liability was not predicated on official's use of an insured vehicle, but rather on the negligent failure to prevent an inmate from escaping); Crider v. Zurich Ins. Co., 222 Ga.App. 177, 179-180(2), 474 S.E.2d 89 (1996) (waiver where backhoe was a "motor vehicle" within the meaning of OCGA § 33-24-51(a)).

Accordingly, even if the defendant has purchased the type of insurance described in OCGA § 33-24-51(a) and (b), if the claim does not fall within the type of coverage described in subsection (a) as limited by subsection (b), then sovereign immunity is not waived. Resolution of whether sovereign immunity has been waived necessarily requires an analysis of whether the defendant has purchased the type of insurance defined in OCGA § 33-24-51(a) and (b) and whether the claim falls within that coverage.

Therefore, the final issue in this case is whether the Chamlees' claim arises out of "the negligence of a duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties" such that it would be covered by the policy. To answer this question, the trial court relied on Gilbert, 264 Ga. at 748-749(4), 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 or her professional capacity was actually using, i.e., driving, the vehicle.

In Gilbert v. Richardson, 264 Ga. at 748-749(4), 452 S.E.2d 476, the Supreme Court had to address whether sovereign immunity was waived by liability insurance coverage provided by the defendant county's participation in the Georgia Interlocal Risk Management Agency (GIRMA). Id. at 745, 452 S.E.2d 476. The plaintiff had been injured in an accident with a deputy sheriff who was responding to an emergency call within the scope of her employment. Id. There was no question that the accident was covered by the GIRMA insurance; the issue...