DeKalb County School District v. Bowden

339 S.E.2d 356, 177 Ga. App. 296, 1985 Ga. App. LEXIS 2576
CourtCourt of Appeals of Georgia
DecidedDecember 4, 1985
Docket70415
StatusPublished
Cited by12 cases

This text of 339 S.E.2d 356 (DeKalb County School District v. Bowden) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeKalb County School District v. Bowden, 339 S.E.2d 356, 177 Ga. App. 296, 1985 Ga. App. LEXIS 2576 (Ga. Ct. App. 1985).

Opinions

Benham, Judge.

This is an appeal from the Superior Court of DeKalb County, in which we once again are faced with interpreting one of the many and varied facets of a doctrine that is derived from antiquity but has present day application: governmental immunity.

Appellee was seriously injured in a collision between a car in which she was a passenger and a truck owned by appellant DeKalb County School District and driven by an employee of appellant. In its answer to appellee’s personal injury suit, appellant raised the defense of governmental immunity. Both sides moved for summary judgment, appellee seeking a ruling that appellant’s employee was negligent, that appellant’s employee was acting within the scope of his employment when the collision occurred, and that appellant had waived the defense of governmental immunity by purchasing liability insurance pursuant to OCGA § 33-24-51; appellant basing its motion on the position that governmental immunity barred the suit. We granted appellant’s application for interlocutory appeal to review the denial of appellant’s motion and the grant of appellee’s motion on the issue of governmental immunity.

OCGA § 33-24-51 reads in pertinent part as follows:

“(a) A municipal corporation, a county, or any other political [297]*297subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.

“(b) Whenever a municipal corporation, a county or any other political subdivision of this state shall purchase the insurance authorized by subsection (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 official duties, 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 governmental 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.

“(c) The municipal corporation, county, or any other political subdivision of this state shall be liable for negligence as provided in this Code section only for damages suffered while the insurance is in force but in no case in an amount exceeding the limits or the coverage of the insurance policy.

“(d) . . . [I]f the 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.”

“[T]he school district of each county is one of the ‘other political subdivisions’ referred to in [the statute], which may be sued in any case coming within the terms of that law.” Ray v. Cobb County Bd. of Education, 110 Ga. App. 258, 259 (138 SE2d 392) (1964).

It is unquestioned in the record that appellant has purchased liability insurance for a premium of $94,000. However, the policy provides for an “Insured’s Retained Limit” of $100,000 per occurrence and $170,000 per year. Under that provision, it is the obligation of the insured “to pay the ultimate net loss sustained under the policy up to the ‘Insured’s Retained Limit — Per Occurrence’ [$100,000] provided, however, the Named Insured’s total annual obligation for such loss shall be limited to the amount stated in item la of the Declarations as Insured’s Retained Limit-Annual Aggregate [$170,000]. The Company will pay all subsequent damages covered by the policy, subject to [insurer’s] Limit of Liability [$400,000] . . .” It is appellant’s position [298]*298that since its governmental immunity is waived only to the extent of its insurance coverage and there is no coverage for the first $100,000 of liability, there is no waiver of governmental immunity as to that first $100,000 per occurrence. We agree with this position.

The issue presented is very intriguing in light of the statutory language and the interpretation given to it. The statute gives the school board the option of obtaining liability insurance and waiving its governmental immunity defense, or foregoing liability insurance and retaining its governmental immunity defense. However, the legal waters were muddied considerably with the case of Davis v. City of Macon, 122 Ga. App. 665 (178 SE2d 557) (1970), which dealt with the purchase of liability insurance by a municipality. The policy contained a “self-insured retention” clause in the amount of $10,000. The Davis court, in analyzing the case, concluded that municipalities within a certain population range were allowed to self-insure. Then it proceeded to search the record, including supplemental briefs and census updates, to find if the City of Macon fell within the population range. The Davis court found that it did. Therefore, the City of Macon was entitled to self-insure, and governmental immunity was effectively waived.

The language in Davis, at 667, which we deem to muddy the water significantly, is as follows: “While [OCGA § 33-24-51] provides for waiver of governmental immunity by the purchase of insurance [cits.], it is clear from the wording of the statute that waiver applies only to the extent of the applicable insurance coverage purchased by the municipality; and, unless there is other applicable legislation authorizing it to become a self-insurer, it is without authority to so act and waive its immunity from liability for damages arising out of the exercise of governmental functions. Boone v. City of Columbus, 87 Ga. App. 701 (75 SE2d 338). And compare City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752).” Additionally, Davis at 670, states: “Thus we agree with plaintiff that under the facts here the city has waived its governmental immunity under [OCGA § 33-24-51] by the purchase of this policy of insurance, provided the city meets the requirements of Ga. L. 1960, p. 2709 [population range].”

Under Boone and City of Calhoun, decided in 1953 and 1966 respectively, this court found that application of the equitable waiver principle amounted to an unauthorized encroachment on state powers and disallowed waiver of governmental immunity. However, these cases are significant only from a historical and developmental standpoint, since through statute the state here has deliberately and unequivocally authorized the relinquishment of the defense of governmental immunity without any limiting provision as to self-retention clauses.

The language which apparently threw the Davis court off track

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DeKalb County School District v. Bowden
339 S.E.2d 356 (Court of Appeals of Georgia, 1985)

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Bluebook (online)
339 S.E.2d 356, 177 Ga. App. 296, 1985 Ga. App. LEXIS 2576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dekalb-county-school-district-v-bowden-gactapp-1985.