Daniels v. Decatur County
| Citation | 212 Ga.App. 378,441 S.E.2d 790 |
| Decision Date | 22 February 1994 |
| Docket Number | No. A93A1989,A93A1989 |
| Parties | DANIELS v. DECATUR COUNTY. |
| Court | United States Court of Appeals (Georgia) |
Beauchamp & Associates, Robert M. Beauchamp, Albany, for appellant.
Kirbo & Kendrick, David A. Kendrick, Bainbridge, for appellee.
In May 1992, Daniels filed a complaint for damages against Decatur County, alleging that as an inmate at the county correctional institute he was underneath a dump truck working on it in October 1991 when the deputy warden negligently drove a front-end loader into the rear end of the dump truck causing it to slide from a jack and drop onto Daniels.
The county asserted the defense of sovereign immunity under Ga. Const.1983, Art. I, Sec. II, Par. IX, as amended in 1990, and moved to dismiss on that ground.
In opposition, Daniels filed an insurance policy issued to the county providing commercial and motor vehicle liability coverage during the time in question. Daniels argued that the county's immunity is governed by Ga. Const.1983, Art. IX, Sec. II, Par. IX and OCGA § 33-24-51.
The trial court treated the county's motion to dismiss as one for summary judgment, having considered matters outside the pleadings, and granted it.
1. The 1983 Article I provision, upon which the county relies, extended sovereign immunity to the state and all of its departments and agencies, but provided that the defense of sovereign immunity was waived to the extent of any liability insurance provided. It additionally stated that sovereign immunity of the state or any of its departments and agencies could be waived further by Act of the General Assembly specifically providing that sovereign immunity was waived and the extent of the waiver.
By an amendment in 1990, which became effective on January 1, 1991, this provision was revised to extend sovereign immunity to all state departments and agencies, regardless of any insurance. Donaldson v. Dept. of Transp., 262 Ga. 49, 414 S.E.2d 638 (1992).
Subparagraph (a) of the amendment authorizes the General Assembly to waive the state's sovereign immunity from suit by enacting a State Tort Claims Act for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees. Subparagraph (e) provides, "The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver."
In 1992, the General Assembly enacted the Georgia Tort Claims Act. OCGA § 50-21-20 et seq. Subject to various exceptions and limitations, the state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. OCGA § 50-21-23(a). As used in the Act, "State" does not include counties, municipalities, school districts or other units of local government. OCGA § 50-21-22(5).
On the other hand, the Article IX provision, upon which the plaintiff stands, states: "The General Assembly may waive the immunity of counties, municipalities, and school districts by law." OCGA § 33-24-51(a) authorizes a municipal corporation, a county, or any other political subdivision of this state in its discretion to secure and provide insurance to cover liability for damages arising by reason of ownership, maintenance, operation, or use of any motor vehicle. Subsection (b) provides that whenever such an entity provides this liability insurance coverage, its governmental immunity shall be waived to the extent of the insurance purchased. Ekarika v. City of East Point, 204 Ga.App. 731, 732, 420 S.E.2d 391 (1992). The Article IX provision has not been amended, and the statute has not been expressly repealed.
In Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985), the plaintiff brought a negligence action against a county after falling in the lobby of the county jail. Although the county had in effect a liability policy affording coverage under these circumstances, it moved to dismiss on the basis of sovereign immunity. Notwithstanding the fact that counties have been generally recognized as political subdivisions of the state rather than state agencies or departments, the Supreme Court held that under the Article I provision Toombs County had waived its defense of...
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