Department of Transp. v. Price

• Decision Date: 08 March 1993
• Docket Number: Nos. A92A1834,A92A1835,s. A92A1834
• Parties: DEPARTMENT OF TRANSPORTATION v. PRICE. DOUGHERTY COUNTY v. PRICE.
• Court: Georgia Court of Appeals

Page 602

430 S.E.2d 602

208 Ga.App. 320

DEPARTMENT OF TRANSPORTATION v. PRICE.

DOUGHERTY COUNTY v. PRICE.

Nos. A92A1834, A92A1835.

Court of Appeals of Georgia.

March 8, 1993.

Reconsideration Denied April 1, 1993.

Certiorari Denied July 15, 1993.

Michael J. Bowers, Atty. Gen., George P. Shingler, Sr. Asst. Atty. Gen., Cathy A. Cox-Brakefield, Asst. Atty. Gen., for appellant (case no. A92A1834).

W. Spencer Lee IV, Albany, for appellant (case no. A92A1835).

Burt & Burt, Hilliard P. Burt, Ben Kirbo, Albany, for appellee.

BIRDSONG, Presiding Judge.

We granted these interlocutory appeals to determine whether the trial court erred in applying OCGA § 32-2-6 to reinstate this suit against Dougherty County. Appellee Price originally filed suit against Dougherty County and the Georgia Department of Transportation for an injury which allegedly occurred on a county road. Summary judgment in favor of the county was previously granted on grounds of sovereign immunity, the county having purchased no liability insurance. See Constitution of Georgia 1983, Art. I, Sec. II, Par. IX.

Three years later, Price successfully moved to reinstate the suit against the county on grounds that OCGA § 32-2-6 provides a "total waiver" of the county's sovereign immunity. Both the county and DOT, which is required to defend the county, appeal. Held:

1. OCGA § 32-2-6(a) provides that DOT "shall defend ... and be responsible for all damages" for which a county is responsible "under existing laws whenever the cause of action accrues on a public road which ... [is] a part of the state highway system." The waiver of sovereign immunity plainly referred to in the statute and in the case authorities is the waiver of DOT's immunity, to the extent that DOT must be "vouched in" to answer for a suit against a county. Such a suit may be maintained against a county only if and to the extent that a county has waived its own sovereign immunity by purchasing liability insurance. See Dept. of Transp. v. Land, 181 Ga.App. 94, 97, 351 S.E.2d 470 (1986). If the county is not responsible for damages because of sovereign immunity, there is nothing for which DOT can be made responsible on the county's behalf. The statute says nothing about waiving a county's sovereign immunity and nothing in the statute creates a waiver of a county's immunity. It simply makes DOT responsible for the county's liability when the county is liable " 'under existing laws.' " Christian v. Monroe County, 203 Ga.App. 342, 344, 417 S.E.2d 37; OCGA § 32-2-6(a).

The trial court held three years ago that Dougherty County is not liable in this action because it had no liability insurance and thus retained its sovereign immunity; under OCGA § 32-2-6 there is nothing which DOT must defend or for which it must be responsible on behalf of the county.

In contending that OCGA § 32-2-6 provides a total waiver of the county's constitutional sovereign immunity, Price relies on language in Sikes v. Candler County, 247 Ga. 115, 118, 274 S.E.2d 464, and Powell v. Ledbetter Bros., 251 Ga. 649, 650, 307 S.E.2d 663. Price also quotes from Dept. of Transp. v. Land, 181 Ga.App. 94, 351 S.E.2d 470, affirmed in principle and reversed in part by Dept. of Transp. v. Land, 257 Ga. 657, 362 S.E.2d 372. Price also argues that DOT's waiver of its own immunity by the purchase of liability insurance for employees, as held on a previous appellate visit of this case in Price v. Dept. of Transp., 257 Ga. 535, 537, 361 S.E.2d 146, somehow works through § 32-2-6 to create a "total" or "partial waiver" of the county's immunity. Obviously, however, the fact that DOT may be liable as a defendant in its own behalf in this case does not create a waiver of the county's constitutional immunity. OCGA § 32-2-6 does not say or imply such a thing.

The idea that § 32-2-6 creates a statutory waiver is invented by Price out of thin air by lifting portions of sentences and passages out of their plain context, and by then labeling these lifted passages as "clear and consistent" substantive and procedural rules. Price's creations much resemble the emperor's clothes. From Sikes, supra 247 Ga. at 118, 274 S.E.2d 464 (and Dept. of Transp. v. Land, 181 Ga.App. at 96, 351 S.E.2d 470) is lifted a statement that "suit may be brought against the county." In context, however, the statement is that if and when suit "may be brought" against the county, DOT must defend it.

Price further creates the idea that § 32-2-6 is a statutory waiver of county immunity, by lifting this statement from Powell, supra 251 Ga. at 650, 307 S.E.2d 663: "This statute requires suit be brought against the county." But in context, the statement refers to the statutory scheme which requires DOT to defend a suit brought against the county and not vice versa.

Price also lifts her idea of a statutory waiver of county immunity from the statement in Powell, at 651, 307 S.E.2d 663, that an action alleging negligence on the part of the county "is an action where sovereign immunity exists and the statute provides the waiver." But one has only to read the case to see that the waiver referred to is the waiver of DOT's immunity, not the county's; Powell says that although DOT on its own behalf may have constitutional immunity in a case, that immunity "must be waived" where the county's immunity is waived, so that DOT can be required to defend the county and to pay the county's damages.

The trial court erred in reinstating this suit against the county on grounds that § 32-2-6(a) creates a statutory waiver of a county's immunity.

2. Price's attempt to file a supplemental record which Price says would show that the road was a county project, and her attempt to conduct deposition and discovery on such question to supplement the record therewith during the...