CopyCited 5 times | Published | Supreme Court of Georgia | Feb 4, 2019 | 305 Ga. 126
...e company to review the Court of Appeals' decision in State of Georgia v. International Indemnity Company,
343 Ga.App. 647,
809 S.E.2d 64 (2017) ( Intl. Indem. Co. ). The dispositive issue presented is whether the official immunity provision in OCGA §
33-37-8.1 applies to claims for a "surcharge" and attorney fees **127against the State Insurance Commissioner and two other state employees, all in their official capacities as the liquidator and his deputies, and against a private company involved in the liquidation. As explained below, because the Court of Appeals incorrectly concluded that §
33-37-8.1 may be applicable to these parties, we reverse the part of the Court of Appeals' judgment allowing the claims to proceed against the state officer and employees in their official capacities, but we affirm the part of the judgment allowing the case to proceed against the private company.
1....
...The State then moved to dismiss Sun States' claims against it, **128asserting that they were claims for a money judgment against the State (the liquidator, deputy liquidator, and assistant deputy liquidator) that were barred by sovereign immunity and by official immunity under both the Liquidation Act, see OCGA §
33-37-8.1 (b), and the Georgia Tort Claims Act, see OCGA §
50-21-20 et seq.3 Reg Tech joined in the motion, arguing in part that because Reg Tech worked under the direction of the State, it is entitled to the same statutory immunities as the liqu...
...The court explained that although the term "surcharge" is not found in the Liquidation Act, it "is a concept found in fiduciary law" that imposes liability on a fiduciary for willful or negligent misconduct in the administration of his duties. The trial court also ruled that the official immunity granted by OCGA §
33-37-8.1 (b) to "the receiver and his or her employees" might not apply to court-imposed surcharges, but even if it does, Sun States could introduce evidence showing "intentional or willful and wanton misconduct," which would eliminate any official immunity under §
33-37-8.1 (b).
The State and Reg Tech immediately appealed from the trial court's denial of their motion to dismiss, and the Court of Appeals affirmed in part and reversed in part....
...s the extent of such a waiver, nor could a waiver be implied from the provisions in the Act that the trial court had cited. See id. at 652-653,
809 S.E.2d 64.5
In Division 3, the Court of Appeals affirmed the trial court's holding that even if OCGA §
33-37-8.1 (b) granted official immunity to the liquidator and his deputies, " 'evidence could be introduced to show that intentional or willful or wanton conduct of the liquidator or his deputies permitted the payment of excessive or improper administrative expenses of the [International Indemnity] estate.' " Intl....
...Co.,
343 Ga.App. at 653,
809 S.E.2d 64 (quoting Sun States I,
332 Ga.App. at 203,
770 S.E.2d 43 ). The Court of Appeals therefore affirmed the trial court's ruling that it would " 'consider further evidence in connection with the applicability of OCGA §
33-37-8.1 (b) to this matter,' " and remanded the State's case to the trial court " 'for consideration of Sun States' objections related [to the discharge] and ... the relief Sun States seeks in accordance with OCGA §
33-37-8.1 (b).' " Intl....
...ith Reg Tech's arguments as follows:
Reg Tech states that it joins in the appeal of the state and raises the same issues, arguing that the trial court erred in finding a waiver of sovereign immunity and in finding that the official immunity of OCGA §
33-37-8.1 (b) does not apply to this case....
...The State and Reg Tech each petitioned for certiorari, arguing that while the Court of Appeals correctly held that sovereign immunity was not waived by the Liquidation Act, the court erred in remanding for consideration of their misconduct under OCGA §
33-37-8.1 (b) rather than concluding that sovereign immunity bars all of Sun States' claims....
...petition for certiorari to challenge that holding.6 The only question *810properly before us is whether the Court **131of Appeals was correct in concluding that the trial court should further consider the application of official immunity under OCGA §
33-37-8.1 (b) (which is quoted above in footnote 3). Subsection (a) of §
33-37-8.1 says:
For the purposes of this Code section, the persons entitled to protection under this Code section are:
(1) All receivers responsible for the conduct of a delinquency proceeding under this chapter, including present and former rece...
...dered employees of the receiver for purposes of this Code section.
Because Sun States' claims are against the liquidator (receiver) and his deputies only in their official capacities, and because Reg Tech is not entitled to any protection under OCGA §
33-37-8.1, this official immunity provision actually has no application in these cases.
(a) Sovereign immunity and official immunity are distinct doctrines....
...te has not consented." (citation omitted) ).7
Sun States now asserts that it brought its surcharge claim against the Insurance Commissioner and his deputies in their **132personal capacities, thereby invoking the official immunity provision in OCGA §
33-37-8.1 (b) along with its exception for "liability caused by the intentional or willful and wanton misconduct of the receiver or any employee." But Sun States has not pointed to any filings it made in the trial court or anything else in the rec...
...city under OCGA §
9-11-25 (d) (1) twice during the pendency of these cases. Sun States made no attempt to keep Commissioner Oxendine personally in the case or to add either Commissioner Hudgens or Commissioner Beck in his personal capacity. Because §
33-37-8.1 (b) 's official immunity provision does not apply to state officers or employees sued in their official capacities - that is, to the State - the Court of Appeals erred in remanding Case No. S18G0493 for the trial court to consider evidence of intentional or willful and wanton misconduct by the liquidator and his deputies rather than simply holding that official immunity is irrelevant.
(b) OCGA §
33-37-8.1 (b) 's official immunity provision also has no application to Sun States' claims against Reg Tech, because Reg Tech is plainly not covered by that provision. OCGA §
33-37-8.1 (a) (2) says that the official immunity provided by this Code section does not protect "professional persons or firms who are retained by the receiver as independent contractors and their employees." It is undisputed that Reg Tech is a private corporation that was retained as a contractor to assist with International Indemnity's liquidation. Thus, Reg Tech is not entitled to any immunity afforded by §
33-37-8.1 (b), even if Reg Tech has not engaged in any misconduct....
...Hudgens became Insurance Commissioner, and he was automatically substituted for Oxendine as a party in this action in his official capacity. See OCGA §
9-11-25 (d) (1). On January 14, 2019, Jim Beck replaced Hudgens as Insurance Commissioner, so Beck has now been automatically substituted as a party.
OCGA §
33-37-8.1 (b) says:
The receiver and his or her employees shall have official immunity and shall be immune from suit and liability, both personally and in their official capacities, for any claim for damage to or loss of property, personal injury...
...The court indicated that it was remanding Sun States' claims against Reg Tech for the same consideration the trial court was to give to the claims against the State, apparently referring to deciding whether there is evidence of misconduct that would eliminate the protection afforded by §
33-37-8.1 (b)....
Published | Supreme Court of Georgia | Feb 4, 2019 | 305 Ga. 126
...an insurance company to review the Court of Appeals’ decision in State of
Georgia v. International Indemnity Company,
343 Ga. App. 647 (809 SE2d 64)
(2017) (Intl. Indem. Co.). The dispositive issue presented is whether the official
immunity provision in OCGA §
33-37-8.1 applies to claims for a “surcharge”
and attorney fees against the State Insurance Commissioner and two other state
employees, all in their official capacities as the liquidator and his deputies, and
against a private company involved in the liquidation. As explained below,
because the Court of Appeals incorrectly concluded that §
33-37-8.1 may be
applicable to these parties, we reverse the part of the Court of Appeals’
judgment allowing the claims to proceed against the state officer and employees
in their official capacities, but we affirm the part of the judgment allowing the
case to proceed against the private company.
1....
...The State
then moved to dismiss Sun States’ claims against it, asserting that they were
claims for a money judgment against the State (the liquidator, deputy liquidator,
and assistant deputy liquidator) that were barred by sovereign immunity and by
official immunity under both the Liquidation Act, see OCGA §
33-37-8.1 (b),
and the Georgia Tort Claims Act, see OCGA §
50-21-20 et seq.3 Reg Tech
3
OCGA §
33-37-8.1 (b) says:
The receiver and his or her employees shall have official immunity and shall be
3
joined in the motion, arguing in part that because Reg Tech worked under the
direction of t...
...against
the liquidator were dismissed, there could be no claims against Reg Tech. The trial court did not
address these arguments; neither did the Court of Appeals; neither do we.
4
granted by OCGA §
33-37-8.1 (b) to “the receiver and his or her employees”
might not apply to court-imposed surcharges, but even if it does, Sun States
could introduce evidence showing “intentional or willful and wanton
misconduct,” which would eliminate any official immunity under §
33-37-8.1
(b).
The State and Reg Tech immediately appealed from the trial court’s denial
of their motion to dismiss, and the Court of Appeals affirmed in part and
reversed in part....
...ibes the extent of such a
waiver, nor could a waiver be implied from the provisions in the Act that the
trial court had cited. See id. at 652-653.5
In Division 3, the Court of Appeals affirmed the trial court’s holding that
even if OCGA §
33-37-8.1 (b) granted official immunity to the liquidator and
his deputies, “‘evidence could be introduced to show that intentional or willful
5
Specifically, the Court of Appeals considered OCGA §§
33-37-20 (a) (4) and (...
...estate.’” Intl. Indem. Co.,
343 Ga. App. at 653 (quoting Sun States I, 332 Ga
App. at 203). The Court of Appeals therefore affirmed the trial court’s ruling
that it would “‘consider further evidence in connection with the applicability of
OCGA §
33-37-8.1 (b) to this matter,’” and remanded the State’s case to the trial
court “‘for consideration of Sun States’ objections related [to the discharge] and
. . . the relief Sun States seeks in accordance with OCGA §
33-37-8.1 (b).’” Intl.
Indem....
...arguments as follows:
Reg Tech states that it joins in the appeal of the state and raises the
same issues, arguing that the trial court erred in finding a waiver of
sovereign immunity and in finding that the official immunity of
OCGA §
33-37-8.1 (b) does not apply to this case....
... The State and Reg Tech each petitioned for certiorari, arguing that while
the Court of Appeals correctly held that sovereign immunity was not waived by
the Liquidation Act, the court erred in remanding for consideration of their
misconduct under OCGA §
33-37-8.1 (b) rather than concluding that sovereign
immunity bars all of Sun States’ claims....
...d was not fully briefed here by
8
before us is whether the Court of Appeals was correct in concluding that the trial
court should further consider the application of official immunity under OCGA
§
33-37-8.1 (b) (which is quoted above in footnote 3)....
...not be considered employees of the receiver for purposes of this
Code section.
Because Sun States’ claims are against the liquidator (receiver) and his
deputies only in their official capacities, and because Reg Tech is not entitled
to any protection under OCGA §
33-37-8.1, this official immunity provision
actually has no application in these cases.
the parties, and there is no need for this Court to decide these issues at this time.
9
(a) Sovereign immunity and official immunity are distinct
doctrines....
...to which the State has not consented.” (citation omitted)).7
Sun States now asserts that it brought its surcharge claim against the
Insurance Commissioner and his deputies in their personal capacities, thereby
invoking the official immunity provision in OCGA §
33-37-8.1 (b) along with
its exception for “liability caused by the intentional or willful and wanton
misconduct of the receiver or any employee.” But Sun States has not pointed
7
The Georgia Constitution addresses sovereign...
...substituted in his official capacity under OCGA §
9-11-25 (d) (1) twice during
the pendency of these cases. Sun States made no attempt to keep Commissioner
Oxendine personally in the case or to add either Commissioner Hudgens or
Commissioner Beck in his personal capacity. Because §
33-37-8.1 (b)’s official
immunity provision does not apply to state officers or employees sued in their
official capacities – that is, to the State – the Court of Appeals erred in
remanding Case No....
...ech’s records.”
11
intentional or willful and wanton misconduct by the liquidator and his deputies
rather than simply holding that official immunity is irrelevant.
(b) OCGA §
33-37-8.1 (b)’s official immunity provision also has
no application to Sun States’ claims against Reg Tech, because Reg Tech is
plainly not covered by that provision. OCGA §
33-37-8.1 (a) (2) says that the
official immunity provided by this Code section does not protect “professional
persons or firms who are retained by the receiver as independent contractors and
their employees.” It is undisputed that Reg Tech is a private corporation that
was retained as a contractor to assist with International Indemnity’s liquidation.
Thus, Reg Tech is not entitled to any immunity afforded by §
33-37-8.1 (b),
even if Reg Tech has not engaged in any misconduct....
...not participating.
Sun States’ claims against Reg Tech for the same consideration the trial court was to give to the
claims against the State, apparently referring to deciding whether there is evidence of misconduct
that would eliminate the protection afforded by §
33-37-8.1 (b)....
