Gilbert v. Richardson

Decision Date24 January 1994
Docket NumberNo. A93A2221,A93A2221
Citation211 Ga.App. 795,440 S.E.2d 684
PartiesGILBERT et al. v. RICHARDSON, et al.
CourtGeorgia Court of Appeals

Hill & Henry, William R. Hill, Jr., LaFayette, for appellants.

Leitner, Warner & Moffitt, George W. Carpenter, Stuart F. James, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Larry L. Cash, Chattanooga, TN, for appellees.

BLACKBURN, Judge.

This action arose out of a motor vehicle collision on September 1, 1991, between the appellants, Tommy and Emma Sue Gilbert, and a Walker County deputy sheriff who was responding to an emergency call to back up another officer. The collision occurred as the Gilberts proceeded through an intersection pursuant to a green light and the deputy ran the red light. Whether or not the deputy utilized her lights and siren upon approaching the intersection was disputed.

On November 24, 1992, the Gilberts commenced this action against the deputy sheriff and the sheriff, seeking recovery for personal injuries and loss of consortium resulting from the collision. The trial court granted summary judgment for the defendants on the grounds that they were immune to suit under the doctrine of sovereign immunity, and this appeal followed.

1. Prior to the ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, the sovereign immunity of the State or any of its departments and agencies was waived in tort actions to the extent of any liability insurance provided. Although the former constitutional provision regarding sovereign immunity did not specifically refer to counties, it was applied to such as branches of the State. Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985).

The 1991 amendment to Art. I, Sec. II, Par. IX(e) extended sovereign immunity "to the state and all of its departments and agencies," regardless of any liability insurance purchased. Considering essentially the same language contained in the former constitutional provision, the Supreme Court concluded that the reservation of sovereign immunity to the State likewise reserved it for the counties. Toombs County v. O'Neal, supra. Similarly, the 1991 amendment's extension of sovereign immunity to the State and its departments and agencies must also apply to counties. The Gilberts' cause of action arose after the effective date of the 1991 amendment (January 1, 1991), and is governed by that amendment.

Subparagraph (e) of the amended Art. I, Sec. II, Par. IX provides that the sovereign immunity of the State and its departments and agencies can be waived only by an Act of the General Assembly, and subparagraph (a) specifies that one of the ways the General Assembly could waive the State's immunity would be by enacting a State Tort Claims Act. Subsequently, the Georgia Tort Claims Act, OCGA § 50- 21-20 et seq., was enacted, effective July 1, 1992. However, by its express terms, that Act does not apply to counties. OCGA § 50-21-22(5).

Nevertheless, nothing in the 1991 amendment limits Acts of the General Assembly waiving immunity to those enacted after the amendment, and nothing therein invalidates by implication any pre-existing Act that waived to some extent the immunity for the State and its departments and agencies, including counties. To hold otherwise would result in the legislature having to reenact existing laws, rather than simply leaving them in place. Further, repeals by implication are not favored. State Bd. of Ed. v. County Bd. of Ed. of Richmond County, 190 Ga. 588, 592, 10 S.E.2d 369 (1940). The only implication as to the repeal of existing waiver statutes is that the General Assembly intended not to disturb such statutes governing waiver of sovereign immunity for counties, inasmuch as it had the opportunity to void them when it enacted the Georgia Tort Claims Act and did not do so.

With regard to tort claims arising out of the operation of a motor vehicle owned by a county, OCGA § 33-24-51(b) provides that whenever a county purchases liability insurance for the negligence of any duly authorized agent or employee in the performance of his official duties, "its governmental immunity shall be waived to the extent of the amount of insurance so purchased." Cf. Ekarika v. City of East Point, 204 Ga.App. 731, 420 S.E.2d 391 (1992). Although it was enacted prior to the 1991 constitutional amendment, OCGA § 33-24-51(b) is such an Act of the General Assembly envisioned by the 1991 amendment, legislatively waiving sovereign immunity to the extent of any liability insurance purchased by a county. It follows that a county's purchase of liability insurance covering its law enforcement officers in their performance of their official duties results in a waiver of its sovereign immunity, to the extent of the amount of that insurance.

In this case, Walker County participated in a risk-sharing arrangement with the Association of County Commissioners of Georgia Interlocal Risk Management Agency, authorized under OCGA § 36-85-1 et seq. Under OCGA § 36-85-20, "[t]he exercise by a municipality or county of the authority provided in this chapter shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution of the State of Georgia. The participation by a municipality or county as a member of an agency authorized by this chapter shall not constitute the obtaining of liability insurance and no sovereign immunity shall be waived on account of such participation." (Emphasis supplied.)...

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4 cases
  • Gilbert v. Richardson
    • United States
    • Georgia Supreme Court
    • November 21, 1994
    ...in nature and, therefore, protected under the doctrine of official immunity. The Court of Appeals affirmed. Gilbert v. Richardson, 211 Ga.App. 795, 440 S.E.2d 684 (1994). 1. The common law doctrine of sovereign immunity, 1 adopted by this state in 1784, protected governments at all levels f......
  • Gilbert v. Richardson, A93A2221
    • United States
    • Georgia Court of Appeals
    • June 19, 1995
    ...Fletcher, Carriger, Walker, Hodge & Smith, Larry L. Cash, Chattanooga, TN, for appellees. BLACKBURN, Judge. 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 sui......
  • Canfield v. Cook County
    • United States
    • Georgia Court of Appeals
    • June 23, 1994
    ...to counties as subdivisions of the state. Toombs County v. O'Neal, 254 Ga. 390, 391(1), 330 S.E.2d 95 (1985); Gilbert v. Richardson, 211 Ga.App. 795(1), 440 S.E.2d 684 (1994). The 1990 amendment became applicable on January 1, 1991 to causes accruing after that date. Donaldson, supra; Parke......
  • Hawkins v. Plumback
    • United States
    • Georgia Court of Appeals
    • February 1, 1994
7 books & journal articles
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 47-1, September 1995
    • Invalid date
    ...Ga. at 745, 452 S.E.2d at 478. The trial court granted summary judgments for both defendants, and the court of appeals had affirmed in 211 Ga. App. 795, 440 S.E.2d -684 (1994). 264 Ga. at 745, 452 S.E.2d at 478. 265. 264 Ga. at 746, 452 S.E.2d at 478. See Ga. CONST, art. I, Sec. 2, para. 9.......
  • Torts - Cynthia Trimboli Adams and Charles R. Adams Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 47-1, September 1995
    • Invalid date
    ...no detailed record presented of what was done to locate defendant). 210. 264 Ga. 744, 452 S.E.2d 476 (1994). 211. Gilbert v. Richardson, 211 Ga. App. 795, 440 S.E.2d 684, affd in part & rev'd in part, 264 Ga. 744, 452 S.E.2d 476 (1994). 212. 1994 Torts, supra note 48, at 499. 213. GA. Const......
  • "official Immunity" in Local Government Law: a Quantifiable Confrontation
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 22-3, March 2006
    • Invalid date
    ...736 (Ga. Ct. App. 1993) (finding official immunity prevailed in student's action against principal and teacher); Gilbert v. Richardson, 440 S.E.2d 684, 687 (Ga. Ct. App. 1994) (noting the new amendment but actually applying Hennessy and finding official immunity prevailed in motorist's acti......
  • Insurance - Maximilian A. Pock
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 46-1, September 1994
    • Invalid date
    ...was driving a rental vehicle at the time of the collision and carried no insurance. Id. at 827, 440 S.E.2d at 683. 187. Id. at 828,440 S.E.2d at 684 (citing Empire Fire Co. v. Dobbins, 205 Ga. App. 700, 423 S.E.2d 396 (1992); Progressive Preferred Ins. Co. v. Browner, 209 Ga. App. 544, 433 ......
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