Litterilla v. Hospital Authority of Fulton County
| Decision Date | 27 February 1992 |
| Docket Number | Nos. S91G1002,S91G1050,s. S91G1002 |
| Citation | 262 Ga. 34,413 S.E.2d 718 |
| Parties | LITTERILLA v. HOSPITAL AUTHORITY OF FULTON COUNTY et al. HYDE et al. v. HOSPITAL AUTHORITY OF FULTON COUNTY. |
| Court | Georgia Supreme Court |
Hardy Gregory, Jr., Davis, Gregory & Christy, Vienna, William Q. Bird, William Q. Bird, P.C., Atlanta, for Angela Litterilla.
J. Melvin England, England, Weaver & Kytle, Atlanta, for Carl M. Hyde, et al.
Adrienne E. Marting, Powell, Goldstein, Frazer & Murphy, Atlanta.
Randall L. Hughes, James D. Meadows, Powell, Goldstein, Frazier & Murphy, Daryll Love, Love & Willingham, Atlanta, for Hospital Authority of Fulton County in No. S91G1050.
C. Edward Young, Powell, Goldstein, Frazer & Murphy, Atlanta.
This appeal involves two separate actions for negligence against the Hospital Authority of Fulton County, known as Northside Hospital. In both cases the hospital moved for summary judgment on the grounds of sovereign immunity. The trial courts denied the hospital's motions. The Court of Appeals granted the hospital's applications for interlocutory appeal, consolidated the two cases, and reversed. Hospital Authority of Fulton County v. Litterilla, 199 Ga.App. 345, 404 S.E.2d 796 (1991). We granted certiorari, asking:
Does the existence of the liability trust fund which protects the Hospital Authority of Fulton County result in a waiver of the authority's sovereign immunity, assuming that hospital authorities are entitled to such immunity?
Our question on certiorari assumes that the hospital authority is protected by sovereign immunity unless the existence of its liability trust fund constitutes a waiver. 1 We limit our review here to that issue.
The Georgia Constitution, which provides the source of sovereign immunity for both the state and counties, Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985), says, "... the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection has been provided, but only to the extent of any liability insurance provided." Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. The Hospital in this case admits that it has purchased an Umbrella Liability Policy which provides liability insurance in certain limits above a $2,000,000 "self-insurance plan" or "liability trust fund." It argues, however, that under the reasoning of Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990), and Ponder v. Fulton-DeKalb Hospital Authority, 256 Ga. 833, 353 S.E.2d 515 (1987), its "liability trust fund" does not constitute a waiver of sovereign immunity. We disagree.
The clear language of the constitutional amendment permits governmental entities to waive sovereign immunity by providing insurance protection for their own potential liability. Nothing in the constitution or the statutes requires governmental entities to elect commercial insurance coverage rather than self-insurance or a combination of self-insurance and commercial insurance. Logue, supra, did not involve a governmental agency that had elected to self-insure against its own potential liability. Rather, it involved a self-insurance program which provided liability insurance to cover governmental employees for their acts of negligence committed in the scope of their official duties. Programs of insurance designed to protect employees against their own negligence are, in essence, additional employee benefits which the legislature may regulate by statute. In Logue, because a program of self-insurance to cover official immunity was not authorized, we concluded that the employee was not covered by insurance so that there was no waiver of immunity.
Neither of the statutes at issue in Logue is applicable here. In this case, the entity that attempts to assert sovereign immunity has, itself, purchased an Umbrella Liability Policy and provided self-insurance to cover its own potential liability. Under the language of the constitutional provision, that insurance serves as a waiver of sovereign...
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