Collier v. Whitworth, A92A1313

• Decision Date: 08 October 1992
• Docket Number: No. A92A1313,A92A1313
• Parties: COLLIER v. WHITWORTH.
• Court: Georgia Court of Appeals

Page 440

423 S.E.2d 440

205 Ga.App. 758

COLLIER v. WHITWORTH.

No. A92A1313.

Court of Appeals of Georgia.

Oct. 8, 1992.

Jerry L. Collier, pro se.

Michael J. Bowers, Atty. Gen., Daryl A. Robinson, Sr. Asst. Atty. Gen., Melissa J. Lunsford, Staff Atty., for appellee.

McMURRAY, Presiding Judge.

This is an action for damages for false imprisonment by a former prisoner of the state penal system against defendant Bobby K. Whitworth, Commissioner of the Georgia Department of Corrections. Plaintiff Jerry Larry Collier was formerly incarcerated under a sentence of two years, serve six months and the balance probated. Pursuant to an order of the Fulton Superior Court, plaintiff was given credit for time served from February 2, 1991. Plaintiff was released on August 4, 1991.

While plaintiff alleges that he was held beyond the end of his prison sentence, defendant contends that plaintiff was lawfully incarcerated until August 4, 1991. On opposing motions for summary judgment, the state court denied plaintiff's motion and granted defendant's motion for summary judgment. Held:

The sole issue argued by the parties is whether plaintiff's prison term was correctly calculated by the Department of Corrections. However, we must bypass this issue since the superior court's decision on summary judgment must be affirmed as a grant of summary judgment must be affirmed if right for any reason. In this case, the grant of summary judgment must be affirmed on the ground of the affirmative defense of official immunity, which defendant pleaded in his answer.

Since plaintiff's claim accrued in August 1991 the applicable sovereign immunity provision is the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. Curtis v. Bd. of Regents, etc., of Ga., 262 Ga. 226, 416 S.E.2d 510 (1992). With that amendment, the legislature replaced the insurance waiver clause with a provision stating that the "General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act." Ga. Const., Art. I, Sec. II, Par. IX (1983) (as amended January 1, 1991). See Curtis, supra at 227, 416 S.E.2d 510. The State Tort Claims Act (the "Act"), passed in 1992, "redr[e]w and redefine[d] the terms of the state's waiver of sovereign immunity," Curtis, supra, and was made retroactive to January 1, 1991, so that no group of plaintiffs would be left without a remedy. Id. at 228, 416 S.E.2d 510.

Rather than basing the waiver of immunity on the purchase of liability insurance as did the previous constitutional provision, the Act provides for a waiver of the state's sovereign immunity for "torts of state officers and employees while acting within the scope of their official duties or employment," OCGA § 50-21-23(a), unless the alleged...