Medical Center Hosp. Authority v. Andrews

• Citation: 250 Ga. 424,297 S.E.2d 28
• Decision Date: 16 November 1982
• Docket Number: No. 38964,38964
• Court: Georgia Supreme Court
• Parties: MEDICAL CENTER HOSPITAL AUTHORITY v. Robert E. ANDREWS et al.

Page 28

297 S.E.2d 28

250 Ga. 424

MEDICAL CENTER HOSPITAL AUTHORITY v. Robert E. ANDREWS et al.

No. 38964.

Supreme Court of Georgia.

Nov. 16, 1982.

Rehearing Denied Dec. 15, 1982.

L. Martelle Layfield, Jr., Jerry A. Buchanan, Albert W. Stubbs, Columbus, Scott R. Owens, J. Steven Garthe, John James, Jones, Bird & Howell, E. Kenneth Jones, Atlanta, Michael J. Bowers, Atty. Gen., Patrick W. McKee, Asst. Atty. Gen., for Medical Center Hosp. Authority.

William P. Trotter, La Grange, John D. Comer, Macon, J. Anderson Harp, Keenan & McColm, Don C. Keenan, Jack Spalding Schroeder, Jr., Walter Dodd, Driver, Connell & Hughes, H. Boyce Connell, Jr., Randall L. Hughes, E. Sumner, Atlanta (amicus).

B. Seth Harp, Jr., Arthur L. Smith, III, Columbus, for Robert E. Andrews, et al.

Charles M. Cork, III, Mullis, Reynolds, Marshall & Horne, Macon, Billy E. Moore, J. Sherrod Taylor, Jack T. Brinkley, Columbus (amicus).

CLARKE, Justice.

We granted certiorari primarily to consider the question of whether a hospital authority created pursuant to Code Ann. Chapter 88-18 enjoys sovereign immunity. The Court of Appeals held that it does not. Medical Center Hospital Authority v. Andrews, 162 Ga.App. 687, 292 S.E.2d 197 (1982). We agree and affirm.

1. In determining the main question before us, we must once again interpret the effect of a statutory provision that a public agency may "sue and be sued." There is no question that the doctrine of sovereign immunity exists in Georgia. There is also no question that sovereign immunity may be waived. Art. VI, Sec. V, Par. I, Constitution of Georgia, Code Ann. § 2-3401. The only issue is whether the words of the Hospital Authorities Law constitute a waiver, and this opinion deals only with those words as they appear in the Hospital Authorities Law.

In Knowles v. Housing Authority of Columbus, 212 Ga. 729, 95 S.E. 659 (1956), this court held that a clause in the housing act providing that a housing authority has the power to "sue or be sued" constituted a waiver of the state's immunity in an action against a housing authority. The Court of Appeals followed this decision in Hospital Authority of Hall County v. Shubert, 96 Ga.App. 222, 99 S.E.2d 708 (1957), and held that the phrase to "sue or be sued" in the Hospital Authority Act, Code Ann. Ch. 99-15 (the predecessor to Code Ann. Ch. 88-18) subjected the hospital authority to suits for damages for personal injuries. In Hipp v. Hospital Authority of Marietta, 104 Ga.App. 174, 121 S.E.2d 273 (1961), the Court of Appeals reiterated that "... the issue is settled, and the defendant hospital authority is subject to suit just as any private corporation." Id. at 175.

Thus a line of cases developed in which the use of the phrase "sue and be sued" in connection with the creation of the powers of a hospital authority was interpreted to mean a waiver of sovereign immunity. Contrary to the argument of appellant, this rule was not affected by this court's decision in Cox Enterprises, Inc. v. Carroll City/County Hospital Authority, 247 Ga. 39, 273 S.E.2d 841 (1981). There we simply held that a hospital authority is a governmental entity and that a governmental entity is absolutely barred from prosecuting a cause of action for libel whether that entity was functioning in a governmental or proprietary capacity at the time the cause of action arose.

The real question, as the Court of Appeals noted, is the effect of our two recent decisions in National Distributing Co. v. Department of Transportation, 248 Ga. [250 Ga. 425] 451, 283 S.E.2d 470 (1981), and McCafferty v. Medical College of Ga., 249 Ga. 62, 287 S.E.2d 171 (1982), upon the area of sovereign immunity as it relates to hospital authorities. Appellant insists that there is an inconsistency between these cases which has caused confusion in the law relating to sovereign immunity. We do not find any such inconsistency.

National Distributing Company, supra, did not disturb the rule that sovereign immunity may be waived by legislative act. It simply held that the waiver must be express in order to be effective. The court examined the language of Code Ann. § 95A-304, the statute alleged to have effected a waiver, and found that its words fell short of an express waiver. The court acknowledged that an earlier, but now repealed, statute, Code Ann. § 95-1505, had authorized the State Highway Department to "sue and be sued" and that in State Highway Department v. W.L. Cobb Construction Co., 111 Ga.App. 822, 143 S.E.2d 500 (1965), that code section was interpreted as an express waiver. This court continued its reasoning in National Distributing Company by pointing out the former code section was repealed by a 1973 act which contained new language: "May be sued in such actions as are permitted by law." The express nature of "sue and be sued" language in the former statute had been substantially modified in the new statute by the phrase "as are permitted by law." Thus, it was reasoned, that while the former statute may have waived sovereign immunity, there does not now exist such an express waiver and that the Department of Transportation is protected by sovereign immunity.

McCafferty, supra, on the other hand, deals with the Board of Regents of the University System of Georgia and the provisions of statutes and the state constitution affecting it. The language of the applicable provisions differs substantially from that of the Department of Transportation statute. In McCafferty, we held that the Board of Regents has no sovereign immunity because as originally created in 1931 the Board of Regents succeeded to all of the powers and duties of the University System of Georgia. Among these is the power to "plead and be impleaded" as declared by the creating act in 1785. We found in Busbee v. American Association of University Professors, 235 Ga. 752, 221 S.E.2d 437 (1975), that this language was the "historic language" enabling a body to sue and be sued. Id. at 753, 221 S.E.2d 437. We further found in Busbee that the use of the phrase "sue and be sued" as it related to the Board of Regents constituted an express legislative waiver of sovereign immunity. Id. at 758-59, 221 S.E.2d 437. After 1931, the statutory powers and duties of the Board of Regents were raised to constitutional status. Art. VIII, Sec. IV, Par. I of the Constitution of 1945 (Code Ann. § 2-6701). Therefore, an attempt by the legislature, in reaction to Busbee, supra, to reaffirm the doctrine of sovereign immunity as to the Board of Regents, was ineffective. We held in McCafferty that the enactment of Code Ann. § 32-101.1, an attempt to diminish the powers and duties of the Board of Regents, was contrary to the Constitution of Georgia and in no way diminished the power of the Board of Regents to sue or be sued. We concluded in McCafferty, therefore, that the sovereign immunity of the Board of Regents had been waived and that the legislative attempt to repeal the waiver was ineffective. In National Distributing Company, on the other hand, the sovereign immunity waiver had not been given constitutional status. Thus, the legislature was able to effectively repeal the sovereign immunity waiver.

A line of cases from the Court of Appeals interpreted the words "sue and be sued" as they apply to hospital authorities to mean a waiver of sovereign immunity. Following this interpretation the legislature enacted Code Ann. Chapter 88-18, the Hospital Authorities Law, which provided that hospital...