O.C.G.A.

O.C.G.A. § 45-9-5 (2019)

Article not waiver of immunity from action or provision of liability insurance protection

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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Nothing in this article shall constitute a waiver of the immunity of the state from any action. The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution.

History

(Ga. L. 1977, p. 1051, § 3; Ga. L. 1986, p. 150, § 2.)

Annotations

Law reviews. - For article, ‘‘The Fall and Rise of Official Immunity,’’ see 25 Ga. St. B.J. 93 (1988). For article, ‘‘Local Gov-

ernment Tort Liability: the Summer of ’92,’’ see 9 Ga. St. U.L. Rev. 405 (1993).

JUDICIAL DECISIONS Waiver of sovereign immunity. - Establishment of comprehensive general liability trust fund for Department of Public Safety employees, covering negligence in performance of official acts, constituted a waiver of sovereign immunity to the extent of the available insurance in the case of an accident resulting from a high-speed chase by police. Martin v. Georgia Dep’t of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987), cert. denied, 484 U.S. 998, 108 S. Ct. 685, 98 L. Ed. 2d 638 (1988). Although O.C.G.A. § 45-9-5 expresses a legislative intent that sovereign immunity of the state is not to be waived through the furnishing of insurance authorized by O.C.G.A. § 45-9-4, the language of the Constitution (Ga. Const. 1983, Art. I, Sec. II, Para. IX) forces the court to reach a contrary result. Price v. Department of Transp., 257 Ga. 537, 361 S.E.2d 146 (1987).

Fired state employee’s monetary claims against a state agency in federal court under the Age Discrimination in Employment Act, Title I of the Americans with Disabilities Act, and 42 U.S.C. § 1981 were dismissed because the General Assembly had not waived its sovereign immunity under the Eleventh Amendment by enacting the Fair Employment Practices Act, O.C.G.A. § 45-9-5, which permitted a state agency to purchase insurance on behalf of the agency’s employees; passage of § 45-9-5did not amount to the State of Georgia’s waiver of the state’s sovereign immunity in federal court because sovereign immunity could never be implicitly waived. Jackson v. Oconee Cmty. Serv. Bd., No. 5:06-CV-55 (WDO), 2006 U.S. Dist. LEXIS 38057 (M.D. Ga. June 8, 2006). Cited in Price v. Department of Transp., 182 Ga. App. 353, 356 S.E.2d 45 (1987).

RESEARCH REFERENCES ALR. - Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 ALR 436. Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 ALR 1438.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 ALR Fed. 851.

ARTICLE 2 MEMBERS OF GOVERNING BODIES OF MUNICIPALITIES, COUNTIES, AND OTHER PUBLIC BODIES

Notes of Decisions

Cited in 5 cases, 1987–1992 · leading case: Hiers v. City of Barwick, 414 S.E.2d 647 (Ga. 1992).

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Hiers v. City of Barwick, 414 S.E.2d 647 (Ga. 1992). · cites it 16× “OCGA § 45-9-5. This language is almost identical to OCGA § 36-85-20, the statute at *132 issue here.”

Donaldson v. Dep't of Transp., 414 S.E.2d 638 (Ga. 1992). · cites it 4× “2, the provision in the enabling legislation, OCGA § 45-9-5, attempting nevertheless to preserve immunity, was inconsistent with the constitution and ineffective.”

Swofford v. Cooper, 360 S.E.2d 624 (Ga. Ct. App. 1987). · cites it 4× “After adoption of the new constitution, the legislature reiterated this position in 1986 when it amended this section, which has been codified as OCGA § 45-9-5, to include the following explicit statement of its intent: "The exercise of authority provided in this article shall…”

Martin v. Georgia Dep't of Pub. Saf., 357 S.E.2d 569 (Ga. 1987). · cites it 2× “insuring or indemnifying such officers, officials or employees to the extent that they are not immune from liability against personal liability, for damages arising out of the performance of their duties or in any way connected therewith.”

Price v. Dep't of Transp., 361 S.E.2d 146 (Ga. 1987). · cites it 2× “2 We recognize that OCGA § 45-9-5 expresses a legislative intent that sovereign immunity of the state is not to be waived through the furnishing of insurance authorized by OCGA § 45-9-4.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.