CopyCited 23 times | Published | Supreme Court of Georgia | Jul 2, 2012 | 729 S.E.2d 361, 2012 Fulton County D. Rep. 2152
...y insurance.7 The second tier, enacted by OCGA §
33-24-51 (b), and as revised in 2002, provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the *353limits prescribed in OCGA §
36-92-2....
...to the extent of the amount of insurance so purchased.
As revised, it now reads:
(b) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section
36-92-2....
...s Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section
36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased....
...The parties disagree as to whether the county’s policies provide that coverage. Thus, as the Court of Appeals noted, the trial court must determine on remand if the county’s insurance policies cover the tractor and bush hog.
In this regard, OCGA §
36-92-2 provides, in part:
(a) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits:
(1) $100,000.00 because of bodily injury or...
...he courts of this state! This chapter shall not be construed to affect any claim or cause of action otherwise permitted hy law and for which the defense of sovereign immunity is not available.
Glass.v. Gates, supra at 572.
OCGA§
36-92-1.
OCGA §
36-92-2 (b).
CopyCited 17 times | Published | Supreme Court of Georgia | Oct 11, 2023
...did not show that the decedent’s death, which occurred while he was
restrained in the back seat of a patrol car, arose from the sheriff’s
deputies’ “use” of the patrol car “as a vehicle,” which, under Court of
Appeals case law construing OCGA §§
33-24-51 (b) and
36-92-2, is a
prerequisite for a waiver of sovereign immunity for injuries arising
from the “negligent use of a covered motor vehicle.” McBrayer, 364
Ga....
...McBrayer thereafter timely petitioned this
Court for a writ of certiorari to the Court of Appeals. 1 We granted
her petition and posed these questions to the parties:
(1) Does “use” of a motor vehicle as provided in
OCGA §§
33-24-51 (b) and
36-92-2 require the motor
vehicle to be “actively in use” “as a vehicle” when the
injury arose? . . .
(2) Does loading a person into or restraining a
person in a patrol car constitute the “use” of a motor
vehicle as to which sovereign immunity is waived under
OCGA §§
33-24-51 (b) and
36-92-2?
As explained below, we hold that the Court of Appeals erred in
limiting the meaning of the word “use” in the phrase “use of a
covered motor vehicle” by reading into OCGA §§
33-24-51 (b) and 36-
92-2 the words “actively...
...decedent’s children, filed this wrongful death action
against Scarbrough in his official capacity [as Tift County
sheriff]. She claimed that the incident arose from the
deputies’ negligent use of a motor vehicle, as
contemplated by OCGA §
36-92-2, and that the patrol car
was a “covered vehicle,” as that phrase is used in OCGA
§§
33-24-51;
36-92-1; and
36-92-2....
...Scarbrough was a member of an Interlocal Risk Management Agency; that a
policy of automobile insurance covering the sheriff and his deputies was in full
force and effect; and that the patrol car was a “covered motor vehicle” as that
phrase is used in OCGA §§
33-24-51,
36-92-1 and
36-92-2....
...d. at 118 (2).
2. Analysis
6
At issue in this appeal is the meaning of the word “use,” as it
is employed in the phrase “use of a covered motor vehicle,” in the
text of OCGA §§
33-24-51 and
36-92-2,3 for purposes of determining
3 OCGA §
33-24-51 provides, in pertinent part and with the pertinent
text emphasized, as follows:
(a) A municipal corporation, a county, or any other political
subdivision of this sta...
...t, and
to pay premiums for the insurance coverage.
(b) The sovereign immunity of local government entities for
a loss arising out of claims for the negligent use of a covered motor
vehicle is waived as provided in Code Section
36-92-2....
...e liability coverage for the
negligence of any duly authorized officer, agent, servant, attorney,
or employee in the performance of his or her official duties in an
amount greater than the amount of immunity waived as in Code
Section
36-92-2, its governmental immunity shall be waived to the
extent of the amount of insurance so purchased....
...al immunity as
a defense; and the municipal corporation, county, or political
subdivision of this state or the insuring company may make only
those defenses which could be made if the insured were a private
person.
OCGA §
36-92-2 provides, in pertinent part and with the pertinent text
emphasized, as follows:
7
whether sovereign immunity has been waived....
...n, and, if it does
apply, a court lacks jurisdiction over the case and, concomitantly,
lacks authority to decide the merits of a claim that is barred.”
(footnote omitted)).
(b) Waiver of Sovereign Immunity
Code Sections
33-24-51 and
36-92-2 both expressly provide for
a waiver of a local government entity’s sovereign immunity and the
extent of such a waiver. OCGA §
33-24-51 (b) expressly states that
“[t]he sovereign immunity of local government entities for a loss
arising out of claims for the negligent use of a covered motor vehicle
is waived as provided in Code Section
36-92-2.” OCGA §
36-92-2 (a)
states that “[t]he sovereign immunity of local government entities
for a loss arising out of claims for the negligent use of a covered
11
motor vehicle is waived” up to specified monetary limits. OCGA §
36-92-2 (b) states that “[t]he sovereign immunity of local
government entities for a loss arising out of claims for the negligent
use of a covered motor vehicle is waived only to the extent and in the
manner provided in this chapter and only...
...construed as broadly as it is employed in the county’s insurance
policy. Scarbrough, however, argues that “use” should be construed
4 We do not address whether the patrol car at issue is a “covered motor
vehicle” as required by OCGA §
36-92-2 (a) (emphasis supplied). Scarbrough
has admitted that the patrol car was a covered motor vehicle as that phrase is
used in OCGA §§
33-24-51,
36-92-1, and
36-92-2.
12
narrowly to avoid a waiver of sovereign immunity....
...punctuation omitted).
Patton,
302 Ga. at 254. Only if the text of the statute presents an
ambiguity do we apply the canons of statutory construction
applicable to resolving ambiguities.
(d) The Meaning of “Use” in OCGA §§
33-24-51 and
36-92-2
In pertinent part, OCGA §
33-24-51 (b) waives the sovereign
immunity of local government entities for losses “arising out of
claims for the negligent use of a covered motor vehicle . . . as
provided in Code Section
36-92-2.” Code Section
36-92-2 (a) and (b)
set financial limits on the extent of the waiver for losses “arising out
of claims for the negligent use of a covered motor vehicle.” Neither
provision defines the word “use,” nor is the word defined elsewhere
in Chapter 92 of Title 36....
...a local government
entity for money for a loss caused by negligence of a local government entity,
officer, or employee using a covered motor vehicle while carrying out his or her
official duties or employment.” OCGA §
36-92-1 (1). See also OCGA §§
36-92-2
(b) (“The sovereign immunity of local government entities for a loss arising out
of claims for the negligent use of a covered motor vehicle is waived only to the
extent and in the manner provided in this chapter and only with respect to
actions brought in the courts of this state. This chapter shall not be construed
to affect any claim or cause of action otherwise permitted by law and for which
the defense of sovereign immunity is not available.”);
36-92-2 (c) (“Local
government entities shall have no liability for losses resulting from conduct on
any part of local government officers or employees which was not within the
scope of their official duties or employment.”);
36-92-3 (a) (“Any...
...patrol car without
having been “loaded” inside it by the deputies. Thus, the answers to
the questions we posed when granting certiorari are as follows: In
this case, the “use” of a motor vehicle as provided in OCGA §§ 33-24-
51 (b) and
36-92-2 is not limited by the terms “actively in use” “as a
vehicle.” Further, loading a person into or restraining a person in a
patrol car constitutes a “use” of a patrol car as to which sovereign
immunity is waived under OCGA §§
33-24-51 (b) and
36-92-2.
By reading into the statutes the terms “actively” and “as a
vehicle,” the Court of Appeals altered the plain meaning of “use” and
restricted the scope of the local government’s waiver of sovereign
immunity....
...301, 305 (656 SE2d 584) (2008).
22
Atlantic Specialty Ins. Co. v. City of College Park,
313 Ga. 294, 299
(2) (869 SE2d 492) (2022). In 2002 (although not effective until
2005), the General Assembly amended OCGA §
33-24-51 and added
OCGA §
36-92-2 to create what we described as a “two-tier” system
establishing waivers of sovereign immunity by a local government
for losses arising out of claims for the negligent use of covered motor
vehicles....
CopyCited 7 times | Published | Supreme Court of Georgia | Feb 15, 2022
...The Plaintiffs assert that the insurance
policy limit is $5,000,000 for the three deaths, while Atlantic
maintains that the policy limit is capped at $700,000 under the
relevant statutory scheme and the terms of the City’s policy. As the
parties agree, pursuant to OCGA §
36-92-2 (a) (3), the sovereign
immunity of local government entities is automatically waived up to
$700,000 in this instance, regardless of whether the City has a
liability insurance policy. However, OCGA §
36-92-2 (d) (3) provides
that “[a] local government entity [that] purchases commercial
liability insurance in an amount in excess of the [statutory
1 Individually, as personal representative of the Estate of Dorothy
Wright, as parent...
...See Atlantic
Specialty Ins. Co. v. City of College Park,
357 Ga. App. 556 (851 SE2d
189) (2020). This Court then granted Atlantic’s petition for certiorari
to decide whether the City’s insurance policy waives the City’s
sovereign immunity under OCGA §
36-92-2 (d) (3)....
...a declaratory judgment action in the United States District Court
for the Northern District of Georgia, seeking a declaration that the
Policy’s limit as to the Plaintiffs’ claims is $700,000 when reading
the Immunity Endorsements in connection with OCGA §
36-92-2.
OCGA §
36-92-2 says, in pertinent part:
(a) The sovereign immunity of local government
entities for a loss arising out of claims for the negligent
use of a covered motor vehicle is waived up to the
following limits: ....
...We also
note that no issues of liability (even up to $700,000) have been decided at this
point, and we express no opinion on those issues.
6
amount in excess of the waiver set forth in this Code section.” OCGA
§
36-92-2 (d) (3).
In the trial court, meanwhile, the Plaintiffs filed a motion for
partial summary judgment, seeking a ruling that the relevant Policy
limit is $5,000,000....
...7
In August 2019, the trial court ruled that the relevant Policy
limit is $5,000,000. The court held that the Immunity Endorsements
improperly attempted to “contract around” the sovereign immunity
waiver “requirements” of OCGA §§
36-92-2 and 33-24-51.7 Atlantic
7 OCGA §
33-24-51 says:
(a) A municipal corporation, a county, or any other political
subdivision of this state is authorized in its discretion to secure
and provide insurance to cove...
...r not, and
to pay premiums for the insurance coverage.
(b) The sovereign immunity of local government entities for
a loss arising out of claims for the negligent use of a covered motor
vehicle is waived as provided in Code Section
36-92-2....
...(a) of this Code section to provide liability coverage for the
negligence of any duly authorized officer, agent, servant, attorney,
or employee in the performance of his or her official duties in an
amount greater than the amount of immunity waived as in Code
Section
36-92-2, its governmental immunity shall be waived to the
extent of the amount of insurance so purchased....
...other political
8
appealed.
The Court of Appeals affirmed the trial court’s ruling. See
Atlantic Specialty Ins. Co.,
357 Ga. App. at 565. Asserting that the
legislature’s intent in enacting OCGA §§
36-92-2 and
33-24-51 was
to “protect members of the public by waiving the sovereign immunity
of local government entities with respect to claims for the negligent
use of a motor vehicle and establishing the limits of the amount of
the waiver...
...Assembly’s clear legislative intent.” Atlantic Specialty,
357 Ga. App.
at 562-563. The court asserted it is “undisputed that the policy
subdivision of this state shall be liable for damages in excess of the
amount of immunity waived as provided in Code Section
36-92-2
which are sustained only while the insurance is in force and only
to the extent of the limits or the coverage of the insurance policy.
(d) If a verdict rendered by the jury exceeds the limits of the
applicable insurance, the court shall reduce the amount of said
judgment or award to a sum equal to the applicable limits stated
in the insurance policy but not less than the amount of immunity
waived as provided in Code Section
36-92-2.
(e) Premiums on the insurance authorized by subsection (a)
of this Code section shall be paid from the general funds of the
municipal corporation, county, or political subdivision....
...In OCGA
§
36-33-1 (a), the General Assembly reiterated that sovereign
immunity for municipalities is the State’s public policy, while also
expressly providing several narrow waivers including through
10
operation of OCGA §§
33-24-51 and
36-92-2:
(a) Pursuant to Article IX, Section II, Paragraph IX
of the Constitution of the State of Georgia, the General
Assembly, except as provided in this Code section and in
Chapter 92 of this title, declares it is the pu...
...of the state
and such municipal corporations shall be immune from
liability for damages. A municipal corporation shall not
waive its immunity by the purchase of liability insurance,
except as provided in Code Section
33-24-51 or
36-92-2, or
unless the policy of insurance issued covers an occurrence
for which the defense of sovereign immunity is available,
and then only to the extent of the limits of such insurance
policy....
...and require them to procure liability insurance for the operation of
12
their vehicles.” Cameron,
274 Ga. at 127.
In 2002 (although not effective until 2005), the General
Assembly amended OCGA §
33-24-51 and added OCGA §
36-92-2.
See Ga....
...Assembly established an automatic waiver of sovereign immunity
for losses arising out of claims for the negligent use of covered motor
vehicles up to certain prescribed limits, including $700,000 for the
bodily injury or death of two or more persons in a single occurrence.
See OCGA §
36-92-2 (a) (3). The new §
36-92-2 (d) then listed three
ways by which a local government entity could increase the
immunity waiver....
...The one at issue here, in paragraph (d) (3), says
that “[t]he waiver provided by this chapter shall be increased to the
extent that . . . [t]he local government entity purchases commercial
liability insurance in an amount in excess of the waiver set forth in
this Code section.” OCGA §
36-92-2 (d) (3).
Thus, the enactment of the automatic immunity waiver in 2002
13
changed only the analysis with respect to a loss under the applicable
automatic waiver limit, as to which the local government entity’s
purchase of liability insurance is irrelevant....
...The second tier, enacted by OCGA §
33-24-51 (b), and as revised in
2002, provides for the waiver of sovereign immunity to the extent
a local entity purchases liability insurance in an amount exceeding
the limits prescribed in OCGA §
36-92-2.
Gates v....
...still requires coverage analysis like the pre-2002 version did to determine
whether the insurance that the local government entity purchased actually
covers the claim at issue.
14
The Court of Appeals misinterpreted OCGA §
36-92-2 (d) (3) to
mean that the purchase of liability insurance in excess of the
statutorily prescribed limit in subsection (a) waives sovereign
immunity to the limit of the insurance purchased for any sort of
claim....
...inable sum of money on a
15
specified contingency.’” (citation omitted)).
In accordance with this principle, while OCGA §
33-24-51 (b)
cross-references the waiver of sovereign immunity provided by
OCGA §
36-92-2, OCGA §
33-24-51 (c) specifies that a local
government entity is “liable for damages in excess of the amount of
immunity waived as provided in Code Section
36-92-2 which are
sustained only while the insurance is in force and only to the extent
of the limits or the coverage of the insurance policy.” Thus, for
example, a commercial liability policy covering only the negligent
use of a city...
...ce purchased” for
purposes of a claim arising from the negligent use of the city’s police
cars. Likewise, purchase of a commercial liability insurance policy
that expired prior to an accident would not be “insurance purchased”
under OCGA §
36-92-2 (d) (3) to raise the sovereign immunity
waiver for that accident above the automatic waiver limit.
The Court of Appeals asserted that Atlantic had attempted to
“contract around the legislature’s clear intent to increase
compen...
...16
a government motor vehicle.” Atlantic Specialty,
357 Ga. App. at
563. That might be true if Atlantic claimed that the Policy somehow
prevented the City from being liable for up to the $700,000
prescribed by the automatic waiver in OCGA §
36-92-2 (a) (3). But
Atlantic has never argued that the Immunity Endorsements allow
the City to avoid that waiver. Instead, Atlantic has argued only that
the City did not waive immunity for liability above $700,000 under
OCGA §
36-92-2 (d) (3).
Only the automatic waiver limits represent the General
Assembly’s “clear intent to increase compensation.” In amending
OCGA §
33-24-51 and enacting OCGA §
36-92-2 in 2002, the
legislature did not guarantee full compensation or require local
government entities to purchase liability insurance providing
compensation above the automatic waiver limits....
...” The excess
liability section’s Immunity Endorsement says the same thing.
These endorsements do not exclude claims for damages to which the
defenses of sovereign and governmental immunity do not apply.
Pursuant to OCGA §§
33-24-51 (b) and
36-92-2 (a) (3), the defenses
of sovereign and governmental immunity are clearly not applicable
to losses from the Plaintiffs’ claims up to $700,000....
...d-for
policy limits.
The Immunity Endorsements do not render the Policy’s higher-
than-$700,000 limits meaningless. The premiums that the City paid
purchased insurance coverage up to the automatic sovereign
immunity waiver limits in OCGA §
36-92-2 (a) and up to $5,000,000
in the aggregate for other claims to which sovereign immunity does
not apply....
...In fact, there is no
material difference in the controlling parts of the statutory schemes
or in the pertinent legal analysis. While a municipality’s sovereign
immunity for negligent use of a covered motor vehicle is waived
automatically up to the limit set forth in OCGA §
36-92-2 (a), a
municipality’s waiver of sovereign immunity based on the purchase
of insurance under both OCGA §
36-33-1 (a) and OCGA §§
36-92-2
(d) and
33-24-51 (b) and (c) is determined by examining whether the
11 This Court granted the Gattos’ petition for certiorari to review the
Court of Appeals’ holding regarding their nuisance claim (which we ultimately
affirm...
Published | Supreme Court of Georgia | May 11, 2015 | 769 S.E.2d 326
...supervision, whether in a governmental undertaking or not, and to
pay premiums for the insurance coverage.
(b) The sovereign immunity of local government entities for a
loss arising out of claims for the negligent use of a covered motor
vehicle is waived as provided in Code Section
36-92-2.7
7
OCGA §
36-92-2 provides:
(a) The sovereign immunity of local government entities for a loss
arising out of claims for the negligent use of a covered motor vehicle is
waived up to the following limits:
(1) $...
...e liability coverage for
the negligence of any duly authorized officer, agent, servant,
attorney, or employee in the performance of his or her official
duties in an amount greater than the amount of immunity waived as
in Code Section
36-92-2, its governmental immunity shall be
waived to the extent of the amount of insurance so purchased.
Neither the municipal corporation, county, or political subdivision
of this state nor the insuring company shall plead...
...e if the insured were a
private person.
(c) The municipal corporation, county, or any other political
subdivision of this state shall be liable for damages in excess of the
amount of immunity waived as provided in Code Section
36-92-2
which are sustained only while the insurance is in force and only to
the extent of the limits or the coverage of the insurance policy.
...
Thus, there is express statutory provision for the waiver of sovereign
immunity by a local governmental entity to the extent that it purchases liability
insurance in an amount in excess of the limits set forth in OCGA §
36-92-2.
(2) The local government entity becomes a member of an interlocal risk management
agency created pursuant to Chapter 85 of this title to the extent that coverage
obtained exceeds the amount of the...
