Hiers v. City of Barwick

414 S.E.2d 647, 262 Ga. 129, 1992 Ga. LEXIS 245

• Court: Supreme Court of Georgia
• Decided: March 19, 1992
• Docket: S91A1307
• Status: Published

Opinions

Clarke, Chief Justice.

The Chief of Police of the City of Barwick tried to pull over a speeding car. When the speeder did not respond to the police car’s blue light, the Chief of Police pursued the car in a high-speed chase. Ultimately, the car being pursued collided with a car occupied by Donald and Virginia Hiers. The Hierses sued the City and the Chief of Police. The City and Chief of Police raised the defense of sovereign immunity. The Hierses asserted that immunity was waived to the extent of liability insurance. At the time of the accident the City was a member of the Georgia Interlocal Risk Management Agency (GIRMA), created pursuant to OCGA § 36-85-1 et seq. The City paid a premium of $8,597 to GIRMA in return for liability coverage of $500,000 per occurrence. The City nevertheless maintained that it was entitled to assert the defense of sovereign immunity. The trial court granted summary judgment in favor of the Chief of Police and the City without stating specific grounds. We reverse.

1. The Chief of Police and City assert that summary judgment in their favor was required by the passage and ratification of an amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983. They say that under the new constitutional provision sovereign and official immunity are not waived by the provision of liability insurance. They further assert that any waiver that may have existed under the previous constitutional provision was withdrawn by the passage of the new constitutional amendment. We recently rejected this argument in Donaldson v. Dept. of Transp., 262 Ga. 49 (414 SE2d 638) (1992), in which we held that a waiver of sovereign immunity cannot be withdrawn after a suit is filed in reliance on that waiver. Because this suit was filed before the effective date of the constitutional amendment, the new constitutional amendment does not apply. Id.

2. The next question before the court is whether the City’s participation in GIRMA, created by OCGA § 36-85-1 et seq., constitutes a waiver of sovereign immunity. Appellees first assert that Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 does not apply to municipalities. Next, they point out that OCGA § 36-85-20 states that participation in GIRMA does not constitute a waiver of immunity and does not constitute the provision of liability insurance protection under the Constitution.

Article I, Sec. II, Par. IX of the Constitution of Georgia of 1983 (prior to 1991 amendment) provides:

Sovereign immunity extends to the state and all of its departments and agencies. . . . Also the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.

We held in Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985) that although the constitutional insurance waiver provision does not specifically mention counties, it nevertheless applies to them. Although we have not previously addressed whether Art. I, Sec. II, Par. IX also applies to municipalities, the reasoning of the Toombs case applies with equal force to municipalities. See R. P. Sentell, Jr., The Law of Municipal Tort Liability in Georgia, 4th ed., 1988, pp. 184-188. Municipalities are entitled to assert governmental or sovereign immunity when they “undertake to perform for the State duties which the State itself might perform, but which have been delegated to the municipality.” Mayor &c. of Savannah v. Jordan, 142 Ga. 409, 410 (83 SE 109) (1914). In Jordan we noted that a municipality “[i]n its public character .. . acts as an agency of the State, to enable it [to] better govern that portion of [the] people residing within the municipality. . . .” Id. at 411. In 1882, this court held that a city was not liable in performing acts of a legislative or judicial nature, “for they are deemed to be a part of the state’s power, and, therefore, under the same immunity.” Collins v. Mayor of Macon, 69 Ga. 542, 544 (1882). The immunity of a municipality is derivative from the State and cannot be broader than the immunity of the State. Therefore, the constitutional provision that mandates waiver of the defense of sovereign immunity to the extent of available insurance coverage necessarily applies to municipalities and counties. Toombs, supra; see also Robinson v. City of Decatur, 253 Ga. 779 (325 SE2d 752) (1985) (Clarke, J., concurring specially). We now hold that the constitutional provision which waives immunity to the extent of insurance applies to municipalities.¹

In light of the constitutional provision, a statute seeking to reserve sovereign immunity despite the existence of liability insurance cannot stand. In this regard the present case is indistinguishable from Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987).² Price involved a self-insurance program authorized by statute. The statute authorizing the self-insurance program had a corresponding statute that stated,

[n]othing 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. OCGA § 45-9-5.

This language is almost identical to OCGA § 36-85-20, the statute at issue here. In Price we examined OCGA § 45-9-5 and concluded that the expressed legislative intent must give way to the mandate of the constitution. Id. at n. 2. In Price we rejected out of hand the assertion that the program of self-insurance did not constitute liability insurance within the meaning of the constitution. See also Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) (holding that self-insurance program covering employees waived the sovereign immunity of the Department of Public Safety in spite of language contained in OCGA § 45-9-5). We recently rejected a similar argument in Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992). Here, although the legislation enacting GIRMA expresses the intent not to waive sovereign immunity, and not to allow participation in the program to constitute liability insurance, we are bound by the constitution and by Price to reach the contrary result. In so holding we disapprove Adams v. Perdue, 199 Ga. App. 476 (405 SE2d 305) (1991).

3. Because we have determined that sovereign immunity is waived in this case to the extent of available insurance, we need not address the issue of whether the actions of the Chief of Police were discretionary or ministerial.

In sum, we hold that OCGA § 36-85-20 conflicts with the Constitution of Georgia and is therefore void. The provision of liability insurance under GIRMA constitutes a waiver of sovereign immunity to the extent of available coverage.

Judgment reversed.

Clarke, C. J., Bell, Sears-Collins, JJ., and Judge J. Byron Smith concur; Hunt, J., dissents in part and concurs specially in part; Benham and Fletcher, JJ., dissent. Weltner, P. J., disqualified.

1 We do not hold here that the immunity of the state, counties and municipalities are co-extensive. The Constitution provides separately in Art. IX, Sec. II, Par. IX for additional legislative waiver of the immunity of counties, school districts and municipalities.

2 In Price we held that the waiver of official immunity necessarily waived sovereign immunity.