Summerour v. City of Monroe

• Decision Date: 14 March 2022
• Docket Number: A21A1561
• Citation: 870 S.E.2d 848
• Parties: SUMMEROUR et al. v. CITY OF MONROE et al.
• Court: Georgia Court of Appeals

870 S.E.2d 848

SUMMEROUR et al.

v.CITY OF MONROE et al.

A21A1561

Court of Appeals of Georgia.

March 14, 2022

Reconsideration Denied March 30, 2022

Craig Thomas Jones, for Appellant.

Sara Elizabeth Brochstein, Dana Kristin Maine, Atlanta, for Appellee.

Barnes, Presiding Judge.

Mahlon Summerour, Jr. died shortly after being shot by a city police officer. A family member of the deceased brought this wrongful death action against the city and the officer. The trial court granted the defendants judgment on the pleadings on immunity grounds. For reasons explained below, that judgment is affirmed in part and vacated in part, and the case is remanded for proceedings not inconsistent with this opinion.

As the sole surviving child of the deceased, and as the personal representative of the estate, LaToya Summerour filed a complaint naming as defendants: (i) Sam Harrison, as the police officer who fired the shot; and (ii) the City of Monroe, as Harrison's employer at the time of the shooting (collectively, the Defendants). The complaint sought damages on claims of battery and negligence. The factual allegations of the complaint included the following:

At approximately 8:50 a.m. on October 19, 2018, Defendant Harrison and another City of Monroe police officer responded to a call about an oddly dressed "black or Hispanic" man walking down a street, holding what the caller believed to be either a BB gun or a shotgun in an unusual manner. Harrison and the other officer encountered the man, who turned out to be Mahlon Summerour, Jr., on foot near [a particular intersection] in the City of Monroe at approximately 9:00 a.m. He was wearing an orange shower curtain on his head and waiving a toy gun in the air. Harrison had dealt with Summerour on several occasions in the past and knew that he was mentally ill. Harrison approached Summerour and asked to see the gun, which was pointed straight up in the air and not toward anyone. Summerour said he was "making a movie," but that was clearly not the case. Harrison reached for the gun, but Summerour pulled it out of Harrison's reach and started to turn as if he were going to walk away. As Summerour was turning away from the officers, Harrison fired a single shot from his department-issued pistol which struck Summerour in the chest. Obviously bewildered, Summerour fell to the pavement, telling Harrison that the gun was not real as he writhed in pain and agony. In his subsequent statement to the GBI, Harrison repeatedly insisted that he thought the gun was real;¹ however, it should have been obvious to any police officer familiar with firearms that Summerour was holding a crude homemade copy of a vintage Thompson submachine gun which would have been too heavy for Summerour to wave in the air so effortlessly had it been an actual "Tommy" gun.

(Paragraph numbers omitted.) The complaint further alleged that, even if the gun had been real, it was not being pointed at anyone nor otherwise being used in a threatening manner; that Harrison gave no warning before using deadly force; that the other officer at the scene neither fired his weapon, nor gave any command; and that after Summerour was transported to a hospital, he died about an hour of being shot.

Regarding immunity, the complaint alleged that Harrison was not entitled to official immunity to the extent that he violated ministerial duties imposed by policy and training or to the extent that he acted with actual malice. The complaint alleged that the City was not entitled to sovereign immunity to the extent of its liability insurance coverage.

The Defendants responded by filing contemporaneously an answer and two motions. In their answer, they admitted that Harrison was an employee of the City's police department acting within the scope of his employment at all relevant times, but denied liability. In their motion for judgment on the pleadings, the City's claim of immunity was based on language within an insurance policy; Harrison's claim of immunity was based on a recording of aspects of the police encounter as captured by the second officer's body camera. In their other motion, the Defendants requested that the court stay discovery until it ruled on their motion for judgment on the pleadings.

After a hearing, the trial court granted the Defendants’ motion for judgment on the pleadings. In its order, the trial court expressly concluded that the insurance policy had not waived the City's sovereign immunity, and that the recording established that the officer was entitled to official immunity. LaToya Summerour (hereinafter "Summerour") challenges those rulings as follows.

1. Sovereign immunity.

Under Georgia law, municipal corporations are protected by sovereign immunity pursuant [to the Georgia Constitution's] Article IX, Section II, Paragraph IX, unless that immunity is waived by the General Assembly.^{[2 ]} With particular regard to municipal corporations, our General Assembly has enacted OCGA § 36-33-1 which reiterates that "it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability from damages." OCGA § 36-33-1 (a).

(Citations omitted.) City of Atlanta v. Mitcham , 296 Ga. 576, 577 (1), 769 S.E.2d 320 (2015). However, OCGA § 36-33-1 (a) provides an exception relating to insurance coverage:

A municipal corporation shall not waive its immunity by the purchase of liability insurance, ... unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.

OCGA § 36-33-1 (a). See CSX Transp. v. City of Garden City , 277 Ga. 248, 249 (1), 588 S.E.2d 688 (2003) ("In the context of tort liability, the legislature has authorized a narrow waiver of a municipality's sovereign immunity through the enactment of OCGA § 36-33-1 (a) [.]").

In the motion seeking judgment on the pleadings, the City argued that the policy at issue, which was attached to the answer, did not provide coverage for Summerour's claims. In particular, the City cited the policy language:

For any amount for which the insured would not be liable under applicable governmental or sovereign immunity but for the existence of this policy; and the issuance of this insurance shall not be deemed a waiver of any statutory immunities by or on behalf of any insured , nor of any statutory limits on the monetary amount of liability applicable to any insured were this policy not in effect; and as respects to any "claim", we expressly reserve any and all rights to deny liability by reason of such immunity, and to assert the limitations as to the amount of liability as might be provided by law.

(Emphasis added in Defendants’ appellate brief.) In support of such argument, the City relied on principles underlying cases such as Dugger v. Sprouse , 257 Ga. 778, 779, 364 S.E.2d 275 (1988) ("[W]here the plain terms of the policy provide that there is no coverage for the particular claim, the policy does not create a waiver of sovereign immunity as to that claim."), and Gatto v. City of Statesboro , 353 Ga. App. 178, 183-184 (2), 834 S.E.2d 623 (2019) (finding no waiver of sovereign immunity where the city's insurance policy included language: "We have no duty to pay damages on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.... This policy and any coverages associated therewith does not constitute, nor reflect an intent by you, to waive or forego any defenses of sovereign and governmental immunity available to any Insured, whether based upon statute(s), common law or otherwise, including Georgia Code Section 36-33-1, or any amendments"), affirmed on other grounds, 312 Ga. 164, 860 S.E.2d 713 (2021) (addressing whether the city's conduct fell within a so-called "nuisance exception" to sovereign immunity).

Without elaboration, the trial court concluded in its order that "the language in the City's of Monroe's Insurance Plan makes clear that Sovereign Immunity is not waived[.]" Summerour contests that ruling on two grounds.

(a) First, Summerour challenges the ruling on procedural grounds. She contends that it was improper for the trial court to decide the issue – whether the insurance policy waived the City's sovereign immunity – on motion for judgment on the pleadings. Summerour argues that the insurance policy constitutes materials outside the "four corners of the Complaint," and that the trial court's consideration of the policy thus required the court to first convert the Defendants’ motion into one for summary judgment and then allow her time to conduct discovery so as to fully develop the record. See generally OCGA § 9-11-12 (c).

This challenge is unavailing, given the stance taken by Summerour in the trial court. At the motion hearing, when focusing on whether the City's sovereign immunity was waived by its purchase of insurance, Summerour's counsel stated to the trial court, "[Y]ou can consider the insurance policy and whether that policy waives the City's sovereign immunity." Counsel acknowledged that this Court's decision in Gatto , 353 Ga. App. 178, 834 S.E.2d 623, was adverse to Summerour and that the trial court was bound by that decision, but pointed out that when the Supreme Court of Georgia granted certiorari in that case, that Court did not address the insurance question. Given that procedural background, Summerour's counsel posed to the trial court, "[M]y suggestion would be that you grant summary judgment on the sovereign immunity issue only, and the reason I say that is because under 9-11-56 any grant of summary judgment is directly appealable[.] ... Let it go on up on that issue on a direct appeal, and that appeal would not stop the rest of the case[.]" As counsel recapped later at the hearing, he was thus asking the trial court for a ruling "[s]olely on the insurance waiver issue."...