Gilbert v. Richardson, A93A2221
Decision Date | 19 June 1995 |
Docket Number | No. A93A2221,A93A2221 |
Citation | 458 S.E.2d 405,217 Ga.App. 612 |
Parties | GILBERT et al. v. RICHARDSON et al. |
Court | Georgia Court of Appeals |
Sovereign immunity. Walker Superior Court. Before Judge Wood.
Hill & Henry, W. Ralph Hill, Jr., Lafayette, for appellants.
Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napolitan, George W. Carpenter, Stuart F. James, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Larry L. Cash, Chattanooga, TN, for appellees.
In Gilbert v. Richardson, 211 Ga.App. 795, 440 S.E.2d 684 (1994), we affirmed the trial court's grant of summary judgment to the defendants on the grounds that they were immune to suit under the doctrine of sovereign immunity. The Supreme Court granted certiorari and affirmed in part and reversed in part our decision in Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).
Prior to the 1991 amendment, Art. I, Sec. II, Par. IX of the 1983 Constitution provided for a waiver of sovereign immunity for any claim against "the state or any of its departments and agencies" to the extent of any liability insurance. Under the 1983 Constitution the courts interpreted the phrase "the state or any of its departments and agencies" to include counties, county school boards, municipalities, Board of Regents, and hospital authorities. See Hiers v. City of Barwick, 262 Ga. 129, 414 S.E.2d 647 (1992) (municipalities); Wilson v. Bd. of Regents, etc., of Ga., 262 Ga. 413, 419 S.E.2d 916 (1992) (Board of Regents); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga.App. 347, 411 S.E.2d 75 (1991) (hospital authorities); Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59, 335 S.E.2d 112 (1985) ( ).
The 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution (1991 amendment) provided sovereign immunity extended to the except to the extent provided for by the Georgia legislature. Under the Georgia Tort Claims Act (GTCA), although the "state" waives its sovereign immunity to the extent of insurance, the statute specifically excludes "counties, municipalities, school districts, other units of local government, [or] hospital authorities" from the definition of "state." OCGA § 50-21-22(5).
The Supreme Court has construed differently the same phrase contained in the pre-1991 amendment versus the post-1991 amendment for the apparent purpose of changing the impact of the GTCA. The Supreme Court has determined that the 1991 amendment does include counties but does not include municipalities. See Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, supra ( ); City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994) ( ).
In this case, the plaintiffs brought suit against the Walker County sheriff and deputy sheriff seeking damages for injuries sustained in a collision with the deputy sheriff while the deputy was responding to an emergency call. The Supreme Court noted that it had previously determined that the phrase "state or any of its departments or agencies" contained in former Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution included counties of the State of Georgia. The Court reasoned that Gilbert, supra at 747, 452 S.E.2d 476.
However, the Supreme Court disregarded its opinion in City of Thomaston, where it interpreted the phrase "the state and all of its departments and agencies" as contained in the 1991 amendment so as not to include municipalities. City of Thomaston, supra at 7, 439 S.E.2d 906. The Court reasoned, "although in Hiers we construed the language in former Art. I, Sec. II, Par. IX to include municipalities, we cannot allow that construction, which effectuated the intent behind the 1983 provision, to bind this Court to a construction which directly conflicts with the obvious intent of the drafters of the 1991 amendment and contravenes the cardinal rule of construction." City of Thomaston, supra at 6, 439 S.E.2d 906.
The Supreme Court in City of Thomaston inferred that the intent of the 1991 amendment was ...
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Miller v. Georgia Ports Authority
...pre-1991 amendment versus the post-1991 amendment for the apparent purpose of changing the impact of the GTCA." Gilbert v. Richardson, 217 Ga.App. 612, 458 S.E.2d 405 (1995) (physical precedent only). Moreover, relying on past precedent leads to the conclusion that the Authority is not a de......