Ward v. Bulloch County
| Decision Date | 16 March 1988 |
| Docket Number | No. 45155,45155 |
| Citation | 258 Ga. 92,365 S.E.2d 440 |
| Parties | WARD v. BULLOCH COUNTY et al. |
| Court | Georgia Supreme Court |
Robert C. Semler, D. Gary Lovell, Jr., Webb, Carlock, Copeland, Semler & Stair, Gerald M. Edenfield, Atlanta, for Wayne Ward.
James B. Franklin, Becky J. Sasher, Franklin & Taulbee, P.C., Statesboro, for Bulloch County et al.
At issue on appeal is the interpretation of Article I, Section II, Paragraph 9 of the Constitution of the State of Georgia which waives sovereign immunity "... 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 for such claims has been provided but only to the extent of any liability insurance provided." (emphasis added)
Plaintiff Wayne Ward suffered an injury during his incarceration in Bulloch County Correctional Institute. Ward sued the county and the correctional institute alleging his injury resulted from the negligence of a correctional institute employee. Bulloch County had purchased a general liability insurance policy covering negligent acts of its employees. However, a declaratory judgment action filed by the insurer determined the insurer had no obligation to defend this action, or pay the claim, because the county had not complied with the notice terms of the policy. The county waited seventeen months to present Ward's claim to the insurer. No evidence of bad faith was offered. In granting defendants' motion for summary judgment the trial court held that sovereign immunity had been reinstated, since the insurer had no obligation to defend against or pay Ward's claim. Ward appeals the grant of summary judgment.
The county is not required to purchase liability insurance and is entitled to sovereign immunity in the absence of insurance; however, the mere purchase of liability insurance does not automatically waive sovereign immunity. Rather, sovereign immunity is waived only when the insurer of a state entity satisfies a claim under the coverage provided. If payment is not required under the contract, and bad faith has not been shown, there is no waiver of immunity. Martin v. Georgia Department of Public Safety, 257 Ga. 300, 303, 357 S.E.2d 569 (1987).
Judgment affirmed.
All Justices concur, except SMITH and WELTNER, JJ., who dissent.
I disagree with the majority's opinion that, "the mere purchase of liability insurance does not automatically waive sovereign immunity." Martin v....
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