Toombs County, Georgia v. O'Neal, 42075

• Decision Date: 29 May 1985
• Docket Number: No. 42075,42075
• Citation: 254 Ga. 390,330 S.E.2d 95
• Parties: TOOMBS COUNTY, GEORGIA v. O'NEAL.
• Court: Georgia Supreme Court

Page 95

330 S.E.2d 95

254 Ga. 390

TOOMBS COUNTY, GEORGIA v. O'NEAL.

No. 42075.

Supreme Court of Georgia.

May 29, 1985.

Julian B. Smith, Jr., Doremus and Jones, P.C., Metter, for Toombs County, Georgia.

Hugh B. McNatt, Jiles M. Barfield, Vidalia, for Carolyn O'Neal.

GREGORY, Justice.

On August 19, 1983, appellee fell in the lobby of the Toombs County Jail. She injured her leg in the fall and initially incurred approximately $9,000 in medical expenses. Thereafter, appellee brought this negligence action against appellant Toombs County, seeking recovery of medical expenses and damages for pain and suffering. The parties have stipulated that Toombs County carries a liability policy of insurance which affords coverage under these circumstances, and which was in effect at the time of appellee's fall. The county filed a motion to dismiss the action, OCGA § 9-11-12(b)(6), on the basis of sovereign immunity. The trial court denied the motion to dismiss, concluding that under Article I, Section II, Paragraph IX of the Constitution of the State of Georgia, 1983, the county had waived sovereign immunity to the extent it had liability insurance covering appellee's claim. We granted the county's application to appeal and now affirm.

1. The county argues the trial court incorrectly concluded that Article I, Section II, Paragraph IX of the 1983 Constitution (hereafter referred to as the Article I provision) waives sovereign immunity of a county in these circumstances.

The predecessor to the Article I provision was Article VI, Section V, Paragraph I of the Constitution of the State of Georgia, 1976 (former Code Ann. § 2-3401). It authorized the General Assembly to establish a State Court of Claims with jurisdiction to try cases involving personal injury or property damage "against the State of Georgia, its agencies or its political subdivisions." Further, this provision unequivocably reserved sovereign immunity to the state by providing, "Nothing contained herein shall constitute a waiver of the immunity of the State from suit, but such sovereign immunity is expressly reserved except to the extent of any waiver of immunity provided in this Constitution, and such waiver or qualification of immunity as is now or may hereafter be provided by act of the General Assembly." [Emphasis supplied.] This court held in Nelson v. Spalding County, 249 Ga. 334, 335, 290 S.E.2d 915 (1982), that while "the reservation of immunity clause refers only to 'the State,' " the reservation of immunity includes both state agencies and counties.

During the 1982 session the General Assembly proposed what is now the Article I provision in question as an amendment to the 1976 Constitution. Ga.Laws 1982, p. 2546 § 1. The Article I provision was submitted to the voters at the 1982 General Election and ratified on November 2, 1982. It became effective, as an amendment to the 1976 Constitution, on January 1, 1983, and was adopted, without change, as part of the 1983 Constitution.

The Article I provision initially reserves sovereign immunity "to the State and all of its departments and agencies." We conclude, as we did in Nelson, supra, that this constitutional reservation of sovereign immunity to "the State" is a constitutional reservation of sovereign immunity to the counties of the State of Georgia. It cannot escape notice that the people ratified the Article I provision with full knowledge of the construction this court had placed on the reservation of sovereign immunity to "the State." ¹ We have found nothing to indicate that the electorate did not intend to extend sovereign immunity to counties or to waive sovereign immunity as to counties in the instances enumerated in the Article I provision. We hold, therefore, that under Article I, Section II, Paragraph IX of the Constitution of the State of Georgia, 1983, sovereign immunity is extended to the counties of the State of Georgia. Under that same provision, as applies to the facts of this case, the defense of sovereign immunity for Toombs County is waived "as to those actions for the recovery of damages for any claim against [the county] ... for which liability insurance protection for such claim has been provided but only to the extent of any liability insurance provided." Therefore, the trial court correctly denied Toombs County's motion to dismiss.

2. Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, 1983, (hereafter referred to as the Article IX provision) provides, "The General Assembly may waive the immunity of counties, municipalities and school districts by law." Appellant argues that it is inconsistent to construe the Article I provision as we have in view of the Article IX provision. Appellant maintains that since Article I provides that "the sovereign immunity of the State or any of its departments and agencies may hereafter be waived further by Act of the General Assembly ...," it cannot be concluded that both provisions are intended to apply to counties.

We do not agree that Article I is inconsistent with Article IX. The Article IX provision came into being with the adoption of the 1983 Constitution, and became effective on July 1, 1983. As stated above, the Article I provision was proposed as an amendment to the 1976 Constitution, and was ratified by the voters in light of the construction this court had placed on its predecessor in Nelson v. Spalding County, supra. The Article I provision became effective January 1, 1983. Had the Article IX provision not been added to the 1983 Constitution, there would be no question but that the Article I provision was intended to reserve sovereign immunity to the counties through the reservation of sovereign immunity to "the State," as had its predecessor. We hold the addition of the Article IX provision to the 1983 Constitution does not alter the construction to be given to the Article I provision. Admittedly since the authority to waive the sovereign immunity of the State, and concomittantly that of the counties of the State, is given to the General Assembly by...