Amica Mutual Insurance Company v. Gwinnett County

• Court: Court of Appeals of Georgia
• Decided: February 19, 2013
• Docket: A12A1068
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

February 19, 2013

In the Court of Appeals of Georgia A12A1068. AMICA MUTUAL INSURANCE COMPANY v. GWINNETT COUNTY POLICE DEPARTMENT, et al.

MCFADDEN, Judge.

In January 2008, a standoff occurred between officers of the Gwinnett County

Police Department and an aggravated assault suspect whom they were trying to arrest

pursuant to a warrant. The standoff damaged the house in which the suspect was

living. That house belonged to Lynn Christopher, who had homeowner’s insurance

with Amica Mutual Insurance Company. After reimbursing Christopher, Amica

brought a subrogation action against the Police Department and Gwinnett County,

asserting a claim of inverse condemnation. The defendants moved to dismiss under

OCGA § 9-11-12 (b) (6), and the trial court granted their motion. Amica does not

contest the dismissal of its action against the Police Department, but it appeals from the dismissal of its action against the County. Because we find that, as a matter of

law, the County was entitled to sovereign immunity against Amica’s claim, we affirm.

A motion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) State v. Singh, 291 Ga. 525, 528 (3) (731 SE2d 649) (2012).

Pertinently, Amica alleged in its complaint that the actions of the law enforcement

officers during the standoff caused significant damage to Christopher’s house, that

the County inflicted this damage “for the public purpose of exercising its police

power over [the aggravated assault suspect],” that this amounted to a taking by the

County for which it was required to pay compensation under the Georgia

Constitution’s eminent domain provision, Ga. Const. of 1983, Art. I, Sec. III, Par. I,

and that this provision waived the County’s sovereign immunity. See generally Ga.

Const. of 1983, Art. I, Sec. II, Par. IX (e) (extending sovereign immunity to the state

and all of its departments and agencies, except as specifically provided in this

paragraph, and providing that this sovereign immunity can be waived only by an act

2 of the General Assembly that specifically provides for such waiver); Rutherford v.

DeKalb County, 287 Ga. App. 366, 367 (1) (651 SE2d 771) (2007) (sovereign

immunity set forth in Ga. Const. of 1983, Art. I, Sec. II, par. IX (e) extends to

counties).

The eminent domain provision of the Georgia Constitution states that “private

property shall not be taken or damaged for public purposes without just and adequate

compensation being first paid.” Ga. Const. of 1983, Art. I, Sec. III, Par. I (a). It is true

that this provision waives sovereign immunity and that, consequently, a county may

be liable for a claim of inverse condemnation if its actions constitute a taking for

public purposes under the provision. See Rabun County v. Mountain Creek Estates,

280 Ga. 855, 856 (1) (632 SE2d 140) (2006); Rutherford, 287 Ga. App. at 369 (2).

But the Supreme Court of Georgia has held that the constitutional provision

“prohibiting the taking of private property for a public purpose without compensation

ha[s] no relevance to the exercise of the police power by the state or its political

subdivisions.” (Citation omitted.) Lewis v. DeKalb County, 251 Ga. 100, 103 (2) (303

SE2d 112) (1983) (interpreting similar language in prior version of constitution). This

Court also has recognized a distinction between a state’s ability to exercise its police

3 power and its ability to exercise the power of eminent domain addressed in the

Georgia Constitution:

The power of eminent domain is that sovereign power to take property for a public use or purpose, and this cannot even be done without just and adequate compensation. On the other hand, the police power is that power by which the Government may destroy or regulate the use of property in order to promote the health, morals and safety of the community, and the police power may be exercised without making compensation for the impairment of the use of property or any decrease in the value of property.

(Citation and punctuation omitted.) McCoy v. Sanders, 113 Ga. App. 565, 569-570

(148 SE2d 902) (1966).

The allegations in Amica’s complaint – that the house was damaged by the

actions of law enforcement officers during their attempt to arrest the aggravated

assault suspect and the ensuing standoff with the suspect – disclose that Christopher’s

house was damaged pursuant to an exercise of police power. See generally Pope v.

City of Atlanta, 242 Ga. 331, 333 (249 SE2d 16) (1978) (describing state’s “inherent

police power”). Amica acknowledges as much in its complaint. As a matter of law,

the County is entitled to sovereign immunity against a claim based on damage caused

by an exercise of police power. See Bray v. Houston County, 180 Ga. App. 166, 168

4 (348 SE2d 709) (1986) (“The safeguarding of society by the prosecution of crimes

against it is a sovereign attribute inherent in all governments, and for mistakes in

exercising this sovereign right there can be no liability against the government

without its consent.”) (citations omitted). Because the exercise of police power is

distinct from the exercise of the power of eminent domain and does not fall within the

waiver of sovereign immunity set forth in the Georgia Constitution’s eminent domain

provision, there is no evidence that Amica could introduce within the framework of

its complaint that would allow it to avoid sovereign immunity and obtain relief from

the County. Consequently, the trial court did not err in dismissing Amica’s claim

against the County. See Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 483 (614

SE2d 761) (2005).

Judgment affirmed. Barnes, P. J., and McMillian, J., concur.