Price v. Department of Transp. of Georgia, 44582

• Court: Georgia Supreme Court
• Writing for the Court: GREGORY
• Citation: Price v. Department of Transp. of Georgia, 361 S.E.2d 146, 257 Ga. 535 (Ga. 1987)
• Decision Date: 07 October 1987
• Docket Number: No. 44582,44582
• Parties: PRICE b/n/f v. DEPARTMENT OF TRANSPORTATION OF GEORGIA.

Page 146

361 S.E.2d 146

257 Ga. 535

PRICE b/n/f v. DEPARTMENT OF TRANSPORTATION OF GEORGIA.

No. 44582.

Supreme Court of Georgia.

Oct. 7, 1987.

Reconsideration Denied Oct. 28, 1987.

Hilliard P. Burt, Terry J. Marlowe, Burt & Burt, Albany, for Hattie Eileen Price, b/n/f.

Michael J. Bowers, Atty. Gen., Beverly B. Martin and Charles M. Richards, Asst. Attys. Gen., Sharon A. Gay, for Dept. of Transp. of Georgia.

Goodman & Bush, James E. Goodman, F. Clay Bush, Stephen H. DeBaun, amici curiae.

GREGORY, Justice.

We granted the writ of certiorari in Price v. Department of Transportation, 182 Ga.App. 353, 356 S.E.2d 45 (1987), to determine whether providing liability insurance covering employees of the Department of Transportation (DOT) waived the sovereign immunity of DOT. The application was brought to this court at the time we were considering the related case of Martin v. Georgia Department of Public Safety, 257 Ga. 300, 357 S.E.2d 569 (1987). In Price the Court of Appeals affirmed the trial court's judgment which held there was no waiver of sovereign immunity. We reverse.

Price filed suit by next friend in Dougherty Superior Court praying for damages for personal injuries suffered in an automobile collision in Albany on May 10, 1983. ¹ She alleged the negligence of two automobile drivers caused a collision with her vehicle forcing her off the roadway and down a high fill which was on a bridge approach. She alleged the roadway was part of the state highway system under the jurisdiction of DOT and that it was maintained in an extremely hazardous condition. She particularly pointed to the absence of guard rails. A later amendment to the complaint named three employees of DOT, the maintenance area manager, district traffic and safety engineer and state road design engineer, whose negligence in the design and maintenance of the roadway she alleged contributed to her injuries and damages. The suit named DOT and its three employees as defendants together with the other automobile drivers, City of Albany, Dougherty County and two private corporations.

DOT moved to be dismissed and later for summary judgment on the basis of sovereign immunity. Discovery disclosed the existence of a certificate showing that comprehensive general liability insurance was provided under the Liability Trust Fund of the State of Georgia covering the three employees of DOT named in the suit. The certificate showed there was coverage for "PERSONAL INJURY ... caused by or resulting from error, omission or negligence in the performance of duties within the scope of an insured's employment...." More specifically coverage was extended in the following language: "The fund will pay on behalf of any insured, all sums which the insured shall become legally obligated to pay as damages ... arising out of the performance of or failure to perform official duties in the insured's capacity as an officer or employee and caused by the insured...." ² Notwithstanding the presence of insurance for the employees the trial court granted DOT summary judgment on the ground of sovereign immunity. The Court of Appeals affirmed while recognizing that the Georgia Constitution waives sovereign immunity where insurance is provided, but pointing out the policy here provided coverage only for employees of the DOT and not for the DOT itself.

We begin our analysis with the language of the Constitution. Art. I, Sec. II, Par. IX, of the 1983 Constitution extends sovereign immunity to the state and all its departments and agencies. However, there are certain waivers. "[T]he 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 for such claims has been provided but only to the extent of any liability insurance provided."

We note the waiver speaks of "actions" and of "claims." ³ For certain actions there is a waiver of sovereign immunity. They are: (1) Those actions involving a claim against the state, or any department or agency, (2) for which liability insurance protection for such claims has been provided, (3) but only to the extent of insurance provided. So the task is to determine if the claim asserted here is of the type described in the constitution. If it is, there is a waiver of sovereign immunity, not for the claim, but for the action. This is an action against both employees of DOT and DOT itself. DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior. That is why it is a defendant in this action.

Now we shall determine if this is the type claim described in the waiver. Is it a claim against the state, a department or agency? Price alleged the employees of DOT were negligent in performing their duties as employees in their supervision of design, construction and maintenance of the roadway. Is this a claim against the state (DOT) or only against employees? Recently, we looked at this issue in the context of deciding whether sovereign immunity extends to the acts of state employees. Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980). We observed "... where an officer or agent of the state is sued in his official capacity or where such officers are sued for acting in areas where they are vested with discretion and empowered to exercise judgment in matters before them ..." it is a suit against the state and...