Price v. Department of Transp.

• Decision Date: 12 March 1987
• Docket Number: No. 73213,73213
• Citation: 182 Ga.App. 353,356 S.E.2d 45
• Parties: PRICE v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

Page 45

356 S.E.2d 45

182 Ga.App. 353

PRICE v. DEPARTMENT OF TRANSPORTATION.

No. 73213.

Court of Appeals of Georgia.

March 12, 1987.

Rehearing Denied March 30, 1987.

Certiorari Granted May 19, 1987.

Hilliard P. Burt, Terry J. Marlowe, Albany, for appellant.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Roland F. Matson, Sr. Asst. Atty. Gen., Beverly B. Martin, Asst. Atty. Gen., for appellee.

James E. Goodman, F. Clay Bush, Stephen H. Debaun, Atlanta, amici curiae.

BEASLEY, Judge.

Sovereign Immunity. Hattie Price by her mother, Margaret Price, sued the Department of Transportation and others as a result of serious and disabling injuries sustained in a multi-automobile collision on May 10, 1983. It was alleged that Hayes lost control of his truck, it crossed the centerline and collided head-on with Price's car, and the rear of her car was then struck by Thomas' vehicle traveling behind her. Price's car left the roadway, overturned, and fell twenty-two feet down the embankment. She alleged that the part of the roadway from which the car fell was an approach to a bridge and was situated on top of a high fill with steep sides, no guardrails, and no other obstruction to prevent vehicles from plunging down.

Defendants were jointly Hayes, Thomas, the contractors which participated in building the roadway, the City of Albany, Dougherty County, and DOT. ¹ The claim against DOT was for negligence and for creating a nuisance. DOT invoked sovereign immunity and, as requested, the court treated its amended motion to dismiss as one for summary judgment in accordance with OCGA § 9-11-12(c), since affidavits were included. The motion was denied on the basis that DOT had waived the defense of sovereign immunity because its employees had been provided with liability insurance protection. DOT's motion for reconsideration resulted in a grant of summary and final judgment in its favor.

On appeal, plaintiff submits the evidence shows that DOT employees were covered by insurance written through a private carrier during the time of the alleged negligent acts and omissions and by insurance through the Liability Trust Fund of the Department of Administrative Services on the date of injury.

1. Plaintiffs in pending litigation other than the case at bar have filed an amicus curiae brief, which DOT moves to dismiss. We deny that motion, Court of Appeals Rule 13, but we will not consider any portions of the amicus curiae's argument which would constitute an attempted expansion of the original appeal. Shaver v. Aetna Fin. Co., 148 Ga.App. 740, 741, 252 S.E.2d 684 (1979).

2. The state constitution provides a qualified sovereign immunity: "Sovereign immunity extends to the state and all of its departments and agencies. However, ... 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 for such claims has been provided but only to the extent of any liability insurance provided...." Ga. Const. 1983, Art. I, Sec. II, Par. IX(a) (effective January 1, 1983). ² See Thigpen v. McDuffie County Bd. of Education, 255 Ga. 59, 335 S.E.2d 112 (1985).

Appellant claims that the alleged negligence of DOT, i.e., employees' work on the design, planning, construction, and maintenance of the bridge approach, occurred in a period from January 1971 through January 1977. This period intersected the period when DOT's employees were covered for potential errors and omissions by a $500,000 general liability insurance policy written through Admiral Insurance Company (July 1975 to July 1980) and the period when DOT employees' coverage for errors and omissions was through the Liability Trust Fund of the Department of Administrative Services.

The argument is that although DOT did not carry an insurance policy naming the department itself rather than DOT employees as an insured, DOT can act only through its employees so that DOT was covered for the incident in question by liability insurance protection constituting waiver of constitutional sovereign immunity. The argument continues with the proposition that the trial court erroneously applied OCGA §§ 45-9-4 and 45-9-5 to her claims against DOT.

Section 4 authorizes the commissioner of administrative services to purchase liability insurance or contracts of indemnity insuring or indemnifying officers, officials, or employees of departments of the state, such as DOT, against personal liability for damages arising out of or in connection with the performance of their duties, under a master policy or on a blanket coverage basis. Section 5 provided at the time of incident: "Nothing in this article shall constitute a waiver of the immunity of the state from any action." Effective March 12, 1986,...