SATILLA COMMUNITY v. SATILLA HEALTH

• Decision Date: 11 October 2001
• Docket Number: No. A01A1747.,A01A1747.
• Citation: 555 S.E.2d 188,251 Ga. App. 881
• Parties: SATILLA COMMUNITY SERVICE BOARD v. SATILLA HEALTH SERVICES, INC. et al.
• Court: Georgia Court of Appeals

555 S.E.2d 188

251 Ga. App. 881

SATILLA COMMUNITY SERVICE BOARD v. SATILLA HEALTH SERVICES, INC. et al.

No. A01A1747.

Court of Appeals of Georgia.

October 11, 2001.

Whelchel, Brown, Readdick & Bumgartner, Richard K. Strickland, Brunswick, for appellant.

Taylor, Odachowski & Sperry, Philip R. Taylor, Atlanta, Hall, Booth, Smith & Slover, Atlanta, Michael G. Frick, Decatur, W. Grady Pedrick, Waycross, John R. Thigpen, Sr., Blackshear, for appellees. ELDRIDGE, Judge.

This is an interlocutory appeal from the denial of the motions for summary judgment of Satilla Community Service Board ("SCSB"), third-party defendant and fourth-party defendant, to the third-party action by C. David Joyner, guardian of the property of Patricia Fields, defendant and third-party plaintiff, and the fourth-party action brought by John F. Michaels, M.D., and Satilla Health Services, Inc., third-party defendants and fourth-party plaintiffs. We affirm as to the denial of summary judgment as to implied contract indemnity and reverse as to denial of summary judgment for sovereign immunity as to tort contribution and workers' compensation as the exclusive remedy for implied indemnity in tort and for contribution for joint tortfeasors.

SCSB contracted with Satilla Park Hospital, a subdivision of Satilla Health Services, to accept and treat SCSB's clients/patients for mental health services. Fields, a SCSB client, was admitted as an emergency psychiatric patient to Satilla Park Hospital operated by Satilla Health Services and staffed by Dr. Michaels. On March 4, 1998, Fields was released from the hospital. On March 5, 1998, under her treatment plan devised by SCSB and Dr. Michaels, Fields went to SCSB; there, she stabbed to death Marie W. Rowell, her SCSB caseworker, who was acting in the scope of her employment for SCSB.

Rowell's estate and her child's guardian sued Joyner, as guardian of the property of Fields, for the tort and wrongful death. On May 19, 2000, Joyner brought a third-party action against Dr. Michaels, Fields' psychiatrist at Satilla Health Services, and against Satilla Park Hospital for contribution and implied indemnity. Dr. Michaels and Satilla Health Services, in turn, brought a fourth-party action against SCSB. On May 19, 2000, Joyner amended the third-party action to add SCSB as an additional third-party defendant. SCSB filed a motion for summary judgment against the third- and fourth-party actions, which was denied.

SCSB contends that the trial court erred in denying its motions for summary judgment as to the third- and fourth-party actions against it.

1. (a) SCSB contends that it is entitled to sovereign immunity from tort liability as an agency or department of the state. We agree.

Under Article I, Section II, Paragraph IX (d) of the 1983 Constitution of Georgia and the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., the State of Georgia has sovereign immunity for itself, its officers, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions except to the extent of statutory waivers of such immunity. Miller v. Ga. Ports Auth., 266 Ga. 586, 588-589, 470 S.E.2d 426 (1996). A community service board is either a state agency or department within the constitution and Georgia Tort Claims Act and is subject to sovereign immunity to the extent it is not waived. See Youngblood v. Gwinnett Rockdale &c. Svc. Bd., 273 Ga. 715, 716-717, 545 S.E.2d 875 (2001). Under OCGA § 50-21-24(7), the "assault and battery" exclusion from waiver of sovereign immunity extends not only to state employees but also to other parties that are tortfeasors. "The focus, therefore, is not on the duty allegedly breached by the State but on the act causing the underlying loss regardless of who committed the act." Id. at 717(3), 545 S.E.2d 875; see also Dept. of Human Resources v. Coley, 247 Ga.App. 392, 394(1), 544 S.E.2d 165 (2000). Therefore, SCSB is entitled to summary judgment as to any tort theory of contribution and implied indemnity for a tort in the nature of an assault and battery, including murder. Youngblood v. Gwinnett Rockdale &c. Svc. Bd., supra (barring contribution for assault and battery among joint tortfeasors); see generally, as to the right of contribution among joint tortfeasors, Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 476-477, 306 S.E.2d 290 (1983); Rolleston v. Cherry, 226 Ga.App. 750, 754(2)(a), 487 S.E.2d 354 (1997) (joint tortfeasors liable for contribution and indemnity). Thus, the trial court should have granted summary judgment as to the third-party claim of Joyner and the fourth-party action of Dr. Michaels and Satilla Health Services sounding in tort for contribution or common law indemnity for tort.

(b) SCSB has no sovereign immunity as to claims sounding in breach of contract or indemnity as a contractual right, because the Constitution waived sovereign immunity based upon theories of contract liability. 1983 Ga. Const., Art. I, § II, Par. IX (c); Youngblood v. Gwinnett Rockdale &c. Svc. Bd., supra at 717-718(4), 545 S.E.2d 875; Miller v. Ga. Ports Auth., supra at 588-589, 470 S.E.2d 426; Waters v. Glynn County, 237 Ga.App. 438, 439(1), 514 S.E.2d 680 (1999). Fields was a client of SCSB for whom it contracted with Satilla Health Services to treat her. Satilla Health Services had a written contract with SCSB to treat clients sent for mental health services, i.e., Fields. Thus, Joyner on Fields' behalf raised the issue that she was a third-party beneficiary of this written contract and that SCSB breached the contract, requiring SCSB to do client screens, to make a history, to do physical exams, and to provide medication, which failure contributed to Dr. Michaels' failure to hospitalize Fields or to properly medicate her as a danger to others, because of SCSB's failure to provide an adequate case history, indicating her prior violent propensities and criminal history. OCGA § 9-2-20(b); Youngblood v. Gwinnett Rockdale &c. Svc. Bd., supra.

Satilla Health Services had a contractual relationship with SCSB, which gave rise to this action, and on which it sued SCSB for contractual indemnity even though the contract did not expressly confer such a right. In fact, Satilla Health Services expressly indemnified SCSB from the acts or omissions of Satilla Health Services, its agents, employees, and subcontractors. Such express indemnity would include separate or concurrent acts or omissions of Satilla Health Services with SCSB, involving Rowell's murder by Fields. However, the contract said nothing regarding acts or omissions of concurrent negligence of SCSB, Satilla Health Services, and subcontractor, Dr. Michaels which caused injury or death. Further, the contract was silent as to indemnity by SCSB to Satilla Health Services for the acts or omissions of SCSB's agents, employees, and subcontractors concurring in any injury or death. Thus, Satilla Health Services' fourth-party action sounds in implied contract of indemnity.

Dr. Michaels, as a subcontractor of Satilla Health Services, was not a signer of the agreement between SCSB and Satilla Health Services; however, Satilla Health Services acted only through its agents, employees, and subcontractors, as contemplated by the contract and the express indemnity to SCSB. SCSB expected Satilla Health Services to function in such fashion, because the written agreement stated that "[n]othing contained in this contract shall be construed to constitute [Satilla Health Services] or any of its employees, agents, or subcontractors as a partner, employee, or agent of [SCSB]...." Therefore, Dr. Michaels also was a third-party beneficiary of the contract mandating SCSB's duties to screen Fields prior to admission, to do a history of Fields prior to her admission, to do physical examinations of Fields prior to admission, to provide medication prescribed by Satilla Health Services' physicians for Field's after admission, to develop a treatment and discharge plan in conjunction with Satilla Health Services for Fields after admission, and to daily review Fields' status with Satilla Health Services.

In order for a third party to have standing to enforce a contract under (OCGA § 9-2-20(b)) it must clearly appear from the contract that it was intended for his (or her) benefit. The mere fact that (the third party) would benefit from[the] performance of the agreement is not alone sufficient. Walls, Inc. v. Atlantic Realty Co., 186 Ga.App. 389, 391(1), 367 S.E.2d 278 (1988) [ (indemnity agreement) ].

(Punctuation and emphasis omitted.) Burton v. DeKalb County, 209 Ga.App. 638, 639, 434 S.E.2d 82 (1993).

It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him. Such an independent harm may be found because of the relationship between the parties, or because of defendant's calling or because of the nature of the harm. However, not all breaches of contract are also independent torts: where defendant's negligence ends merely in nonperformance of the contract and where defendant is not under any recognized duty to act apart from contract, the courts generally still see no duty to act affirmatively except the duty based on—and limited by—defendant's consent. In those circumstances, an action in tort may not be maintained for what is a mere breach through non-action or through ineffective performance (which is the same thing) of a contract duty—the duty must arise independent of contract to constitute a tort.

(Citations, punctuation and emphasis omitted.) Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148-149, 281 S.E.2d 586 (1981).

For the breach of a contract to give rise to a tort action, such breach of contract must also constitute a violation of a duty imposed by law to the public either by sta...