defense of sovereign immunity in Georgia

1992The Georgia Constitution, which provides the source of sovereign immunity for both the state and counties, Toombs County v. O’Neal, 254 Ga. 390 ( 330 SE2d 95 ) (1985), says, . . . the defense of sovereign immunity is waived 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 protection has been provided but only to the extent of any liability insurance provided.

1992The Georgia Constitution, which provides the source of sovereign immunity for both the state and counties, Toombs County v. O’Neal, 254 Ga. 390 ( 330 SE2d 95 ) (1985), says, . . . the defense of sovereign immunity is waived 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 protection has been provided but only to the extent of any liability insurance provided.

1996“A county’s sovereign immunity has been waived pursuant to OCGA § 33-24-51 (b), but only ‘to the extent of the amount of liability insurance purchased for the negligence of (county) officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.’ (Emphasis supplied.) Gilbert v. Richardson, [ 264 Ga. 744 ,] supra at 749 (4). [In the cases sub judice,] OCGA § 33-24-51 (b) does not apply because the liability of [the Hall County Board of Commissioners and the county Correctional Institute] is not predicated upon their alleged negligent use of an insured motor vehicle.

1996“The defense of sovereign immunity to tort liability cannot be waived by the mere purchase of insurance coverage. [Cit.]” Woodard v. Laurens County, 265 Ga. 404 ( 456 SE2d 581 ) (1995). 1 Pursuant to OCGA § 33-24-51 (a), a county has the áuthority to “secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by . . . (the) county. . . .” Subsection (b) of this statute provides that if the county “providefs] liability coverage for the negl

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

1992The trial court’s retroactive application of the 1990 amendment to the Georgia Constitution eliminating the waiver of the defense of sovereign immunity by the acquisition of liability insurance, was error under Donaldson v. Dept. of Transp., 262 Ga. 49 ( 414 SE2d 638 ) (1992), and must be reversed.

1992The trial court’s retroactive application of the 1990 amendment to the Georgia Constitution eliminating the waiver of the defense of sovereign immunity by the acquisition of liability insurance, was error under Donaldson v. Dept. of Transp., 262 Ga. 49 ( 414 SE2d 638 ) (1992), and must be reversed.

2023In Kyle, the Supreme Court determined that the Georgia Lottery Corporation was entitled to assert the defense of sovereign immunity, again examining the legislation that created the corporation and its purpose of marketing and selling 8 lottery tickets to benefit the State’s educational system. 290 Ga. at 91 (1).

2019Phipps concur. 8 In anticipation that we might rule adversely to her on waiver, Patel makes an alternative argument, urging us to “closely review” the Supreme Court’s holding in Kyle and “abandon” the holding in that case that GLC is an instrumentality of the State and therefore was entitled to assert the defense of sovereign immunity. 290 Ga. at 88 (1).

2014Auth., 207 Ga. App. at 532 (3). 4 avoided by the defense of sovereign immunity.”6 No further explanation of what part of OCGA § 42-5-2 acts as an “express” waiver of sovereign immunity appears in the opinion.

2013Cantrell, supra at 514 (4) (citing OCGA § 42-4-4 (a) (2), pertinently providing that the sheriff shall provide persons confined in the jail with medical aid, and OCGA § 42-5-2 (a)); see Macon-Bibb County Hospital Auth. v. Houston County, 207 Ga. App. 530, 532 (3) ( 428 SE2d 374 ) (1993) (rejecting county’s claim that it was immune to suit for payment of inmate’s medical care costs, holding that “[t]he county’s immunity was waived by the legislature’s enactment of OCGA § 42-5-2, and its responsibility to pay all medical and hospital expenses may not be avoided by the defense of sovereign immuni

2014The interpretations of this Code section, however, vary throughout our case law depending on whether the party seeking to establish a waiver is an inmate or a medical provider.7 In cases involving an inmate’s claim against the State or its subdivision for failure to provide medical care, this Court has taken the view contrary to Macon-Bibb Co. and held that OCGA § 42-5-2 did not constitute an express waiver in such cases.8 As recently explained by the Supreme Court in Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,9 if the plain language of a statute “does not 6 Id. 7 S

2014The interpretations of this Code section, however, vary throughout our case law depending on whether the party seeking to establish a waiver is an inmate or a medical provider.7 In cases involving an inmate’s claim against the State or its subdivision for failure to provide medical care, this Court has taken the view contrary to Macon-Bibb Co. and held that OCGA § 42-5-2 did not constitute an express waiver in such cases.8 As recently explained by the Supreme Court in Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,9 if the plain language of a statute “does not 6 Id. 7 S

2014The interpretations of this Code section, however, vary throughout our case law depending on whether the party seeking to establish a waiver is an inmate or a medical provider.7 In cases involving an inmate’s claim against the State or its subdivision for failure to provide medical care, this Court has taken the view contrary to Macon-Bibb Co. and held that OCGA § 42-5-2 did not constitute an express waiver in such cases.8 As recently explained by the Supreme Court in Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,9 if the plain language of a statute “does not 6 Id. 7 S

2013Cantrell, supra at 514 (4) (citing OCGA § 42-4-4 (a) (2), pertinently providing that the sheriff shall provide persons confined in the jail with medical aid, and OCGA § 42-5-2 (a)); see Macon-Bibb County Hospital Auth. v. Houston County, 207 Ga. App. 530, 532 (3) ( 428 SE2d 374 ) (1993) (rejecting county’s claim that it was immune to suit for payment of inmate’s medical care costs, holding that “[t]he county’s immunity was waived by the legislature’s enactment of OCGA § 42-5-2, and its responsibility to pay all medical and hospital expenses may not be avoided by the defense of sovereign immuni

1995See Coffee County School Dist. v. Snipes, 216 Ga.App. 293, 294-295 , 454 S.E.2d 149 (1995). *103 Moreover, it is not clear that the General Assembly, in describing those entities which are subject to the Georgia Tort Claims Act, meant only to include those which could otherwise assert the defense of sovereign immunity.

1995See Coffee County School Dist. v. Snipes, 216 Ga.App. 293, 294-295 , 454 S.E.2d 149 (1995). *103 Moreover, it is not clear that the General Assembly, in describing those entities which are subject to the Georgia Tort Claims Act, meant only to include those which could otherwise assert the defense of sovereign immunity.

1998Moreover, as clarified in Gilbert v. Richardson, 264 Ga. 744, 750 (4), 753 (7) ( 452 SE2d 476 ), any cause of action averred against a municipal police officer in his official, as opposed to his personal/individual, capacity is “ ‘in reality suits against the [municipality] and, therefore, involve sovereign [governmental] immunity.’ ” Compare Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) ( 487 SE2d 512 ); but compare the pre-Gilbert cases of Banks v. Patton, 202 Ga. App. 168 ( 413 SE2d 744 ) (negligent performance of official discretionary act in responding to an emergency cal

1996“A county’s sovereign immunity has been waived pursuant to OCGA § 33-24-51 (b), but only ‘to the extent of the amount of liability insurance purchased for the negligence of (county) officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.’ (Emphasis supplied.) Gilbert v. Richardson, [ 264 Ga. 744 ,] supra at 749 (4). [In the cases sub judice,] OCGA § 33-24-51 (b) does not apply because the liability of [the Hall County Board of Commissioners and the county Correctional Institute] is not predicated upon their alleged negligent use of an insured motor vehicle.

1995Auth. of Clarke County, supra, 264 Ga. 40, 41 , 440 S.E.2d 195 (1994) ("hospital authorities, because they are neither the state nor a department or agency of the state, are not entitled to the defense of sovereign immunity").

1995Auth. of Clarke County, supra, 264 Ga. 40, 41 , 440 S.E.2d 195 (1994) ("hospital authorities, because they are neither the state nor a department or agency of the state, are not entitled to the defense of sovereign immunity").

2016Wolfe; Freeman, Mathis & Gary, Theodore Freeman, Wayne S. Melnick, for appellees. 1 An additional defendant, Wanda Murray, was dismissed from the suit. 2 The superior court also granted summary judgment to defendant Bennett; Appellant does not appeal that judgment. 3 As recognized in Presiding Judge Barnes’s concurring opinion in Tattnall County v. Armstrong, 333 Ga. App. 46 ( 775 SE2d 573 ) (2015), the terms “official immunity” and “qualified immunity are used interchangeably in Georgia case law to refer to the type of immunity that sometimes shields government employees from individual liabi

2016Wolfe; Freeman, Mathis & Gary, Theodore Freeman, Wayne S. Melnick, for appellees. 1 An additional defendant, Wanda Murray, was dismissed from the suit. 2 The superior court also granted summary judgment to defendant Bennett; Appellant does not appeal that judgment. 3 As recognized in Presiding Judge Barnes’s concurring opinion in Tattnall County v. Armstrong, 333 Ga. App. 46 ( 775 SE2d 573 ) (2015), the terms “official immunity” and “qualified immunity are used interchangeably in Georgia case law to refer to the type of immunity that sometimes shields government employees from individual liabi

2003See Davis v. City of Roswell, 250 Ga. 8, 9 (1) ( 295 SE2d 317 ) (1982) (where a federal right of action is asserted, it is controlled by federal law; accordingly, “[t]he supremacy clause of the Constitution prevents us from construing the federal rule to permit a state immunity defense”). 42 USC § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities *705 secured by the Constitution and laws,

2003See Davis v. City of Roswell, 250 Ga. 8, 9 (1) ( 295 SE2d 317 ) (1982) (where a federal right of action is asserted, it is controlled by federal law; accordingly, “[t]he supremacy clause of the Constitution prevents us from construing the federal rule to permit a state immunity defense”). 42 USC § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities *705 secured by the Constitution and laws,

1994Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 ( 404 SE2d 796 ) (1991), the Court of Appeals held, in part, that a hospital authority is a governmental entity entitled to the defense of sovereign immunity.

1994Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 ( 404 SE2d 796 ) (1991), the Court of Appeals held, in part, that a hospital authority is a governmental entity entitled to the defense of sovereign immunity.

1988Before the record was completed and transmitted to this court, the Rogerses filed in the trial court, on August 10, a motion for reconsideration of the order appealed from, seeking to offer additional proof to show that defendants were covered by a liability insurance trust fund as discussed by the Supreme Court in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (2) ( 357 SE2d 569 ) (1987), which became final on July 29, 1987, so as to render ineffective the defense of sovereign immunity to the extent of insurance coverage.

1988Before the record was completed and transmitted to this court, the Rogerses filed in the trial court, on August 10, a motion for reconsideration of the order appealed from, seeking to offer additional proof to show that defendants were covered by a liability insurance trust fund as discussed by the Supreme Court in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (2) ( 357 SE2d 569 ) (1987), which became final on July 29, 1987, so as to render ineffective the defense of sovereign immunity to the extent of insurance coverage.

2023Nevertheless, the trial court should not have pretermitted this threshold jurisdictional issue and instead “should have addressed whether the doctrine of sovereign immunity barred the claim[s] . . . brought against . . . [Watkins] in [her] official capacit[y].” Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 690 (1) n. 5 ( 859 SE2d 33 ) (2021).

2023Nevertheless, the trial court should not have pretermitted this threshold jurisdictional issue and instead “should have addressed whether the doctrine of sovereign immunity barred the claim[s] . . . brought against . . . [Watkins] in [her] official capacit[y].” Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 690 (1) n. 5 ( 859 SE2d 33 ) (2021).

2023In this case, Watkins raised the defense of sovereign immunity in her answer, but not in her motion for summary judgment, which “may explain why the trial court failed to address this defense in [its order] granting summary judgment to [Watkins].” Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311 (1) n. 4 ( 806 SE2d 550 ) (2017).

2023In this case, Watkins raised the defense of sovereign immunity in her answer, but not in her motion for summary judgment, which “may explain why the trial court failed to address this defense in [its order] granting summary judgment to [Watkins].” Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311 (1) n. 4 ( 806 SE2d 550 ) (2017).

2022See also OCGA § 50-21-1 (a) (“The defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract . . . entered into by the state, departments and agencies of the state, and state authorities.”). “[B]ecause sovereign immunity is jurisdictional, it requires the 20 plaintiff to prove any waiver thereto and is properly raised [as a defense] under OCGA § 9-11-12 (b) (1).” Spann v. Davis, 312 Ga. 843, 850 (2) n.11 (866 SE2d 371) (2021) (emphasis in original).

2022See also OCGA § 50-21-1 (a) (“The defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract . . . entered into by the state, departments and agencies of the state, and state authorities.”). “[B]ecause sovereign immunity is jurisdictional, it requires the 20 plaintiff to prove any waiver thereto and is properly raised [as a defense] under OCGA § 9-11-12 (b) (1).” Spann v. Davis, 312 Ga. 843, 850 (2) n.11 (866 SE2d 371) (2021) (emphasis in original).

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022Bryant argues that the trial court erred in finding that the exception in OCGA § 50-21-24 (6) applied to the general waiver of immunity found in OCGA § 50-21-23 (a).5 Subject to exceptions6 and limitations,7 the Act waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment.8 Relevant here, “[t]he 3 Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 ( 666 SE2d 383 ) (2008) (punctuation and footnote omitted). 4 Id. 5 Bryant does not dispute that “the Georgia Ports Au

2022To meet this burden, the plaintiff must show “that the contract sought to be enforced is in writing and contains all of the terms necessary to constitute a valid contract.” Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012).

2022To meet this burden, the plaintiff must show “that the contract sought to be enforced is in writing and contains all of the terms necessary to constitute a valid contract.” Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012).

2022Safety v. Davis, 285 Ga. 203, 206 ( 676 SE2d 1 ) (2009) (“The state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself.

2022Safety v. Davis, 285 Ga. 203, 206 ( 676 SE2d 1 ) (2009) (“The state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself.

2021However, sovereign immunity is not an affirmative defense and the City did not have a duty to “negate the 4 possibility that the defense of sovereign immunity had been waived.” Kelleher v. State of Ga., 187 Ga. App. 64, 64-65 (1) ( 369 SE2d 341 ) (1988) (emphasis supplied).

2021However, sovereign immunity is not an affirmative defense and the City did not have a duty to “negate the 4 possibility that the defense of sovereign immunity had been waived.” Kelleher v. State of Ga., 187 Ga. App. 64, 64-65 (1) ( 369 SE2d 341 ) (1988) (emphasis supplied).

2020See Hill v. Jackson, 336 Ga. App. 679, 683 (1), n.3 ( 783 SE2d 719 ) (2016); Tattnall County v. Armstrong, 333 Ga. App. 46, 52-53 ( 775 SE2d 573 ) (2015) (Barnes, J., concurring fully and specially), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016). 6 authority, and done without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 593 ( 678 SE2d 922 ) (2009); see Ga. Const. Art. 1, § 2, ¶ IX (d); OCGA § 50-21-24 (2).

2020See Hill v. Jackson, 336 Ga. App. 679, 683 (1), n.3 ( 783 SE2d 719 ) (2016); Tattnall County v. Armstrong, 333 Ga. App. 46, 52-53 ( 775 SE2d 573 ) (2015) (Barnes, J., concurring fully and specially), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016). 6 authority, and done without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 593 ( 678 SE2d 922 ) (2009); see Ga. Const. Art. 1, § 2, ¶ IX (d); OCGA § 50-21-24 (2).

2020See Hill v. Jackson, 336 Ga. App. 679, 683 (1), n.3 ( 783 SE2d 719 ) (2016); Tattnall County v. Armstrong, 333 Ga. App. 46, 52-53 ( 775 SE2d 573 ) (2015) (Barnes, J., concurring fully and specially), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016). 6 authority, and done without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 593 ( 678 SE2d 922 ) (2009); see Ga. Const. Art. 1, § 2, ¶ IX (d); OCGA § 50-21-24 (2).

2020See Hill v. Jackson, 336 Ga. App. 679, 683 (1), n.3 ( 783 SE2d 719 ) (2016); Tattnall County v. Armstrong, 333 Ga. App. 46, 52-53 ( 775 SE2d 573 ) (2015) (Barnes, J., concurring fully and specially), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016). 6 authority, and done without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 593 ( 678 SE2d 922 ) (2009); see Ga. Const. Art. 1, § 2, ¶ IX (d); OCGA § 50-21-24 (2).