Georgia Dept. of Human Resources v. Poss, S93G0571

• Decision Date: 20 September 1993
• Docket Number: No. S93G0571,S93G0571
• Citation: 263 Ga. 347,434 S.E.2d 488
• Parties: GEORGIA DEPARTMENT OF HUMAN RESOURCES v. POSS et al.
• Court: Georgia Supreme Court

Page 488

434 S.E.2d 488

263 Ga. 347

GEORGIA DEPARTMENT OF HUMAN RESOURCES v. POSS et al.

No. S93G0571.

Supreme Court of Georgia.

Sept. 20, 1993.

Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., William M. Droze, Asst. Atty. Gen., State Law Dept. Atlanta, for GA Dept. of Human Resources.

Robert H. Benfield, Jr., Clint W. Sitton, Middleton & Anderson, Harris Tower, Atlanta, for Poss.

BENHAM, Justice.

We granted certiorari after a divided Court of Appeals reversed in part the grant of summary judgment to the Georgia Department of Human Resources (DHR), which had asserted sovereign immunity as the ground for judgment in its favor. Poss v. DHR, 206 Ga.App. 890, 426 S.E.2d 635 (1992).

When appellees filed this renewal action of a suit brought and dismissed in federal court (see Poss v. Georgia Regional Hosp. of Augusta, Ga., 676 F.Supp. 258 (S.D.Ga.1987), aff'd Poss v. Azar, 874 F.2d 820 (11th Cir.1989)), they named only DHR as a defendant. In their complaint, appellees alleged the department was negligent in failing to train and supervise its staff; in failing to establish rules, regulations, and procedures designed to protect seriously ill patients; and in failing to provide adequate facilities to carry out such care. ¹ Citing Price v. Dept. of Transp., 257 Ga. 535, 361 S.E.2d 146 (1987), and Mayor, etc., of Flemington v. Boatwright, 259 Ga. 175, 377 S.E.2d 843 (1989), DHR asserted that appellees' claims were barred by sovereign immunity. The Court of Appeals distinguished Price on the ground that it involved a derivative liability claim and, after recognizing that the presence of liability insurance protection constitutes a waiver of sovereign immunity (see 1983 Ga. Const. Art. I, Sec. II, Para. IX), ² held that DHR was not entitled to summary judgment as it had not shown the non-existence of insurance coverage.

1. Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8(c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. See Kelleher v. State of Ga., 187 Ga.App. 64, 369 S.E.2d 341 (1988). Thus, appellees, not appellant, had the burden of establishing that DHR had waived sovereign immunity by obtaining liability insurance protection covering appellees' claim.

2. The insurance coverage provided in the case at bar is identical, in pertinent part, to the coverage provided in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 302, 357 S.E.2d 569 (1987), and Price v DOT, supra, 257 Ga. at 536, 361 S.E.2d 146. The policy provides comprehensive general liability insurance for personal injury, bodily injury, death and property damage caused by or resulting from negligence in the performance of duties within the scope of an insured's employment with a participating entity. The term "insureds" is defined within the policy as:

1) Employees of the State of Georgia, employed by participating Departments or Agency, at the time of an occurrence covered hereinafter.

2) All employees of participating Authorities and Instrumentalities of the State of Georgia, for an occurrence hereinafter covered.

3) Board Members designated by participating entities.

4) Elected or appointed members of participating entities.

Thus, the insurance policy covers the individuals who comprise the department, and the department, not itself an "insured," is provided coverage to the extent it is vicariously liable for the actions of its personnel. Martin v. DPS, supra, 257 Ga. at 303, 357 S.E.2d 569; Price v. DOT, supra, 257 Ga. at 537, 361 S.E.2d 146 (where on motion for reconsideration, this court determined that sovereign immunity was not waived if a departmental employee was not made a party defendant). Sovereign immunity is waived only to the extent of the insurance coverage. Martin v. DPS, supra.

The negligence alleged in the case at bar (failure to train and supervise; failure to enact rules and regulations; failure to provide adequate facilities) is attributable to unnamed personnel of DHR. DHR's sovereign immunity is waived to the extent of the insurance coverage provided for the department's vicarious liability for the negligence of its personnel. Martin v. DPS, supra, 257 Ga. at 303, n. 2, 357 S.E.2d 569 n. 2. However, the department personnel by whom the alleged negligence was committed have never been parties to the action, and the two- and four- year statutes of limitation for personal injury and property damage have expired. See OCGA §§ 9-3-31, 9-3-33. ³ The periods of limitation having expired, and appellees being unable now to make the allegedly negligent department personnel parties to the renewal action (see Patterson v. Rosser...