waiver of sovereign immunity in Georgia

2024Cf. RTT Assocs., Inc., 299 Ga. at 82 (2) (explaining “[g]eneral rules of contract law that might otherwise support a claim for breach of contract damages between private parties, however, will not support a claim against the state or one of its agencies if the contract is not in writing so as to trigger the waiver of sovereign immunity.”). 27 Polo Golf and Country Club Homeowners Ass’n, Inc., 306 Ga. at 793-94 (2) (b) (punctuation omitted); see Wood v. Barnes, 318 Ga. 300, 304 (2) ( 898 SE2d 448 ) (2024) (“Establishing a violation of Georgia’s impairment clause, under either a theory of contra

2023Further, the “burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it.” Ga. Dep’t of Labor v. RTT Assoc., Inc., 299 Ga. 78, 81 (1) ( 786 SE2d 840 ) (2016).

2016The plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State’s sovereign immunity. [Gilbert v. Richardson, 264 Ga. 744, 748 (3) ( 452 SE2d 476 ) (1994)] (subsection (e) of the amendment “confers upon the legislature the authority to waive sovereign immunity”); see also Woodard v. Laurens County, 265 Ga. 404 (1) ( 456 SE2d 581 ) (1995) (“A waiver of sovereign immunity is a mere privilege, not a right, and the extension of that privilege is solely a matter of legislative grace.”).

2016The plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State’s sovereign immunity. [Gilbert v. Richardson, 264 Ga. 744, 748 (3) ( 452 SE2d 476 ) (1994)] (subsection (e) of the amendment “confers upon the legislature the authority to waive sovereign immunity”); see also Woodard v. Laurens County, 265 Ga. 404 (1) ( 456 SE2d 581 ) (1995) (“A waiver of sovereign immunity is a mere privilege, not a right, and the extension of that privilege is solely a matter of legislative grace.”).

2020See Gates, 291 Ga. at 353 (“It follows that, where, as here, a local entity purchases automobile liability insurance in an amount greater than the prescribed limits set forth for a waiver of sovereign immunity under OCGA § 36-92-1 et seq., the entity waives sovereign immunity to the extent of its insurance coverage as required by OCGA § 33-24-51 (b).”).

2017Our Supreme Court has interpreted this second-tier to “provide[ ] for the waiver of sovereign immunity to the extent a local [government] entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.” Gates, supra, 291 Ga. at 352-353 .

2022Elliott, however, concerned the construction of an insurance policy document that specifically included “loading and unloading” of the vehicle in the definition of the term “use.” Id. at 50 (1). 2 See Gish, supra, 302 Ga. App. at 860 (2) (explaining that in contrast to cases involving automobile insurance policies, where a term such as “use” may be broadly construed to effectuate coverage, statutes which provide for a waiver of sovereign immunity are to be strictly construed against a finding of waiver). 8 “use” cannot be construed “to embrace all its possible meanings and ramifications” becau

2019Furthermore, statutes "providing for a waiver of sovereign immunity are in derogation of the common law and thus are to be strictly construed against a finding of waiver." (Citation omitted; emphasis supplied.) Gish v. Thomas , 302 Ga. App. 854 , 860 (2), 691 S.E.2d 900 (2010).

2019See Woodard, 265 Ga. at 406 (1) (because a waiver of sovereign immunity was a “mere privilege,” tort plaintiffs were not authorized to challenge disparities in the extension of that privilege on equal protection grounds). 3.

2016The plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State’s sovereign immunity. [Gilbert v. Richardson, 264 Ga. 744, 748 (3) ( 452 SE2d 476 ) (1994)] (subsection (e) of the amendment “confers upon the legislature the authority to waive sovereign immunity”); see also Woodard v. Laurens County, 265 Ga. 404 (1) ( 456 SE2d 581 ) (1995) (“A waiver of sovereign immunity is a mere privilege, not a right, and the extension of that privilege is solely a matter of legislative grace.”).

2016(Citations and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671-672 (1) (a) ( 570 SE2d 1 ) (2002). 2 We recognize that “this Court has consistently held that the purchase of a GIRMA coverage agreement as authorized by OCGA § 36-85-1 et seq., constitutes the purchase of liability insurance for purposes of the waiver of sovereign immunity, and does so to the extent of the liability coverage purchased.” (Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) ( 722 SE2d 755 ) (2012).

2016(Citations and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671-672 (1) (a) ( 570 SE2d 1 ) (2002). 2 We recognize that “this Court has consistently held that the purchase of a GIRMA coverage agreement as authorized by OCGA § 36-85-1 et seq., constitutes the purchase of liability insurance for purposes of the waiver of sovereign immunity, and does so to the extent of the liability coverage purchased.” (Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) ( 722 SE2d 755 ) (2012).

2023I, § 2, ¶ V (b) (1) (specifically waiving sovereign immunity for declaratory judgments and injunctive relief, effective January 1, 2021). 13 See, e.g., Donaldson v. Dep’t of Transp., 262 Ga. 49, 53 (3) ( 414 SE2d 638 ) (1992) (“It is a well settled principle of law that acts of the legislature are ordinarily given prospective effect unless the language of the act imperatively requires retroactive application.”); Anthony v. Penn, 212 Ga. 292, 293 ( 92 SE2d 14 ) (1956) (“Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retro

2023I, § 2, ¶ V (b) (1) (specifically waiving sovereign immunity for declaratory judgments and injunctive relief, effective January 1, 2021). 13 See, e.g., Donaldson v. Dep’t of Transp., 262 Ga. 49, 53 (3) ( 414 SE2d 638 ) (1992) (“It is a well settled principle of law that acts of the legislature are ordinarily given prospective effect unless the language of the act imperatively requires retroactive application.”); Anthony v. Penn, 212 Ga. 292, 293 ( 92 SE2d 14 ) (1956) (“Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retro

2023As the party seeking to benefit from the waiver of sovereign immunity in this case, Tibbetts “bears the burden of proving such waiver.” Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 685 (1) ( 722 SE2d 403 ) (2012) (citation and punctuation omitted).

2023As the party seeking to benefit from the waiver of sovereign immunity in this case, Tibbetts “bears the burden of proving such waiver.” Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 685 (1) ( 722 SE2d 403 ) (2012) (citation and punctuation omitted).

2026It is well-settled in Georgia that “without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown.” Currid v. DeKalb State Ct. Probation Dep’t, 285 Ga. 184, 187 ( 674 SE2d 894 ) (2009) (emphasis omitted).

2026It is well-settled in Georgia that “without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown.” Currid v. DeKalb State Ct. Probation Dep’t, 285 Ga. 184, 187 ( 674 SE2d 894 ) (2009) (emphasis omitted).

2012It is axiomatic that “[t]he party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver.” (Citations omitted.) Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. 878, 881 (1) ( 630 SE2d 85 ) (2006).

2012It is axiomatic that “[t]he party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver.” (Citations omitted.) Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. 878, 881 (1) ( 630 SE2d 85 ) (2006).

2012Further, an implied contract “will not support a waiver of sovereign immunity under the provisions of the Georgia Constitution.” Merk v. DeKalb County, 226 Ga. App. 191, 193 (1) ( 486 SE2d 66 ) (1997).

2012Further, an implied contract “will not support a waiver of sovereign immunity under the provisions of the Georgia Constitution.” Merk v. DeKalb County, 226 Ga. App. 191, 193 (1) ( 486 SE2d 66 ) (1997).

2023If it is, there is a waiver of sovereign immunity, not for the claim, but for the action.” (emphasis supplied; footnote omitted)), superseded by constitutional amendment as stated in Lathrop, 301 Ga. at 422 (II) (B).

2018The statutory language upon which the majority has relied is not a waiver of sovereign immunity, express or implied.4 Rather, it is a declaration that those who 4 “The constitutional doctrine of sovereign immunity bars any suit against the [s]tate to which it has not given its consent, including suits against state departments, agencies, and officers in their official capacities[.]” Lathrop v. Deal, 301 Ga. 408, 444 (IV) ( 801 SE2d 867 ) (2017).

2023Sys. of Ga. v. Daniels, 264 Ga. 328, 329 ( 446 SE2d 735 ) (1994) (explaining that the party seeking to benefit from the waiver of sovereign immunity has the burden of proving waiver); Jenkins, 347 Ga. App. at 449 (“The trial court’s factual findings will, of course, be sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (punctuation omitted)); Williams, 341 Ga. App. at 290 (same). 6 Ashby, 354 Ga. App. at 864; see Conway v. Jones, 353 Ga. App. 110 , 111 (1) ( 836 SE2d 538 ) (2019) (“Any suit against the State barred by sovere

2021“We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” (Citations and punctuation omitted.) Everson v. DeKalb County School Dist., 344 Ga. App. 665 , 666 (1) ( 811 SE2d 9 ) (2018); see Fulton County School Dist. v. Jenkins, 347 Ga. App. 448, 449 ( 820 SE2d 75 ) (2018).

2022Servs., 340 Ga. App. 183, 183 ( 796 SE2d 903 ) (2017) (“[T]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.”). 4 See RTT Assocs., Inc., 299 Ga. at 81 (1) (“Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.”); Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo); Beasley v. Ga. Dep’t of Corr., 360

2022Servs., 340 Ga. App. 183, 183 ( 796 SE2d 903 ) (2017) (“[T]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.”). 4 See RTT Assocs., Inc., 299 Ga. at 81 (1) (“Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.”); Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo); Beasley v. Ga. Dep’t of Corr., 360

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2017On these facts, we conclude that the trial court did not abuse its discretion under OCGA § 9-11-12 (d) by deferring its ruling on the motion until trial on the merits. 1 *199 The second GTCA exception to the waiver of sovereign immunity on which the DPS based its OCGA § 9-11-12 (b) (1) motion to dismiss for lack of subject matter jurisdiction is set forth in OCGA § 50-21-24 (7), which provides in relevant part that "the state shall have no liability for losses resulting from ... [a]ssault [or] battery...." Under this exception, "where [the plaintiff's] loss results from assault or battery, the

2017On these facts, we conclude that the trial court did not abuse its discretion under OCGA § 9-11-12 (d) by deferring its ruling on the motion until trial on the merits. 1 *199 The second GTCA exception to the waiver of sovereign immunity on which the DPS based its OCGA § 9-11-12 (b) (1) motion to dismiss for lack of subject matter jurisdiction is set forth in OCGA § 50-21-24 (7), which provides in relevant part that "the state shall have no liability for losses resulting from ... [a]ssault [or] battery...." Under this exception, "where [the plaintiff's] loss results from assault or battery, the

2022But statutes that provide for a waiver of sovereign immunity . . . are in 4 derogation of the common law and thus are to be strictly construed against a finding of waiver.” (Citations and punctuation omitted; emphasis supplied.) Bd. of Commrs. of Putnam County v. Barefoot, 313 Ga. App. 406, 408-409 (1) ( 721 SE2d 612 ) (2011).

2022But statutes that provide for a waiver of sovereign immunity . . . are in 4 derogation of the common law and thus are to be strictly construed against a finding of waiver.” (Citations and punctuation omitted; emphasis supplied.) Bd. of Commrs. of Putnam County v. Barefoot, 313 Ga. App. 406, 408-409 (1) ( 721 SE2d 612 ) (2011).

2024Consequently, “we must look to the understanding of the common law 3 We note that “though the relevant text of our State Constitution regarding sovereign immunity has undergone certain revisions leading up to its current form in the Georgia Constitution of 1983 as amended in 1991, those provisions generally address only the waiver of sovereign immunity.” City of College Park, 306 Ga. at 305 (1) (a). 4 doctrine of sovereign immunity in Georgia by 1974 — the date at which Georgia gave the doctrine constitutional status.” City of College Park, 306 Ga. at 305 (1) (a).

2024Consequently, “we must look to the understanding of the common law 3 We note that “though the relevant text of our State Constitution regarding sovereign immunity has undergone certain revisions leading up to its current form in the Georgia Constitution of 1983 as amended in 1991, those provisions generally address only the waiver of sovereign immunity.” City of College Park, 306 Ga. at 305 (1) (a). 4 doctrine of sovereign immunity in Georgia by 1974 — the date at which Georgia gave the doctrine constitutional status.” City of College Park, 306 Ga. at 305 (1) (a).

2024Rampell v. Williams, 217 Ga. App. 292, 293-294 (2) ( 457 SE2d 224 ) (1995).

2024Rampell v. Williams, 217 Ga. App. 292, 293-294 (2) ( 457 SE2d 224 ) (1995).

2023Sys. of Ga. v. Daniels, 264 Ga. 328, 329 ( 446 SE2d 735 ) (1994) (explaining that the party seeking to benefit from the waiver of sovereign immunity has the burden of proving waiver); Jenkins, 347 Ga. App. at 449 (“The trial court’s factual findings will, of course, be sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (punctuation omitted)); Williams, 341 Ga. App. at 290 (same). 6 Ashby, 354 Ga. App. at 864; see Conway v. Jones, 353 Ga. App. 110 , 111 (1) ( 836 SE2d 538 ) (2019) (“Any suit against the State barred by sovere

2023Sys. of Ga. v. Daniels, 264 Ga. 328, 329 ( 446 SE2d 735 ) (1994) (explaining that the party seeking to benefit from the waiver of sovereign immunity has the burden of proving waiver); Jenkins, 347 Ga. App. at 449 (“The trial court’s factual findings will, of course, be sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (punctuation omitted)); Williams, 341 Ga. App. at 290 (same). 6 Ashby, 354 Ga. App. at 864; see Conway v. Jones, 353 Ga. App. 110 , 111 (1) ( 836 SE2d 538 ) (2019) (“Any suit against the State barred by sovere

2016We recognize that “this Court has consistently held that the purchase of a GIRMA coverage agreement as authorized by OCGA § 36-85-1 et seq., constitutes the purchase of liability insurance for purposes of the waiver of sovereign immunity, and does so to the extent of the liability coverage purchased.” (Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) ( 722 SE2d 755 ) (2012).

2016We recognize that “this Court has consistently held that the purchase of a GIRMA coverage agreement as authorized by OCGA § 36-85-1 et seq., constitutes the purchase of liability insurance for purposes of the waiver of sovereign immunity, and does so to the extent of the liability coverage purchased.” (Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) ( 722 SE2d 755 ) (2012).

2002From the express grant of the power to sue and to be sued to a governmental entity, such “language means only that the entity has the status and capacity to enter our courts, and does not signify a waiver of sovereign immunity against suit.” Self v. City of Atlanta, 259 Ga. 78, 80 (1) ( 377 SE2d 674 ) (1989).

2002From the express grant of the power to sue and to be sued to a governmental entity, such “language means only that the entity has the status and capacity to enter our courts, and does not signify a waiver of sovereign immunity against suit.” Self v. City of Atlanta, 259 Ga. 78, 80 (1) ( 377 SE2d 674 ) (1989).

2017In the context of the doctrine of sovereign immunity, “statutes . . . providing for a waiver of sovereign immunity are in derogation of the common law and thus are 8 to be strictly construed against a finding of waiver.” Gish v. Thomas, 302 Ga. App. 854, 860 ( 691 SE2d 900 ) (2010); see also Smith v. Chatham County, 264 Ga. App. 566, 568-69 (1) ( 591 SE2d 388 ) (2003).”Moreover, the doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” Bd. of Regents of Univ.

2017In the context of the doctrine of sovereign immunity, “statutes . . . providing for a waiver of sovereign immunity are in derogation of the common law and thus are 8 to be strictly construed against a finding of waiver.” Gish v. Thomas, 302 Ga. App. 854, 860 ( 691 SE2d 900 ) (2010); see also Smith v. Chatham County, 264 Ga. App. 566, 568-69 (1) ( 591 SE2d 388 ) (2003).”Moreover, the doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” Bd. of Regents of Univ.

1997The law is well established that sovereign immunity is not an affirmative defense and that the waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver. [Cit.]” Dept. of Human Resources v. Poss, 263 Ga. 347 (1) ( 434 SE2d 488 ) (1993).

1997The law is well established that sovereign immunity is not an affirmative defense and that the waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver. [Cit.]” Dept. of Human Resources v. Poss, 263 Ga. 347 (1) ( 434 SE2d 488 ) (1993).

2012“The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county’s negligence, unless the negligence of its ‘officer, agent, servant, attorney, or employee’ arises from the use of a motor vehicle. [Cits.]” Simmons v. Coweta County, 229 Ga. App. 550, 552 ( 494 SE2d 362 ) (1997).

2012“The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county’s negligence, unless the negligence of its ‘officer, agent, servant, attorney, or employee’ arises from the use of a motor vehicle. [Cits.]” Simmons v. Coweta County, 229 Ga. App. 550, 552 ( 494 SE2d 362 ) (1997).

2025“Nowhere in the statute has the Legislature specifically provided that sovereign immunity has been waived and the extent of such waiver, and, without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown.” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 ( 674 SE2d 894 ) (2009) (citation, punctuation omitted, emphasis in original); see also CSX Transp. v. City of Garden City, 277 Ga. 248, 249 (1) ( 588 SE2d 688 ) (2003) (“This Court has long recognized that sovereign immunity applies to all actions w

2025“Nowhere in the statute has the Legislature specifically provided that sovereign immunity has been waived and the extent of such waiver, and, without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown.” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 ( 674 SE2d 894 ) (2009) (citation, punctuation omitted, emphasis in original); see also CSX Transp. v. City of Garden City, 277 Ga. 248, 249 (1) ( 588 SE2d 688 ) (2003) (“This Court has long recognized that sovereign immunity applies to all actions w