Melanie Savko v. Kay Ankerich

• Court: Court of Appeals of Georgia
• Decided: November 28, 2012
• Docket: A12A0975
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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/

November 28, 2012

In the Court of Appeals of Georgia A12A0974, A12A0975. KAY ANKERICH IN HER OFFICIAL CAPACITY AS DEPUTY SHERIFF OF HART COUNTY et al. v. SAVKO; and vice versa.

BARNES, Presiding Judge.

Melanie Savko sued Kay Ankerich, a Hart County deputy sheriff, and Mike

Cleveland, Sheriff of Hart County (hereinafter collectively “Ankerich”), in their

official capacities to recover damages for injuries she sustained when she was

involved in an automobile collision at an intersection where Ankerich was directing

traffic. She also served State Farm Mutual Automobile Insurance Company and

Nationwide Mutual Fire Insurance Company with the complaint as her

uninsured/underinsured motorist carriers. In Appeal No. A12A0974, after the grant of Ankerich’s application for

interlocutory review, she appeals the trial court’s denial of her motion for summary

judgment, and in Appeal No. A12A0975, Savko cross-appeals the denial of her partial

motions for summary judgment against Ankerich, State Farm, and Nationwide. The

primary issue on appeal is whether Ankerich was “using” her patrol car such that the

county’s purchase of automobile liability insurance constituted a waiver of the

county’s sovereign immunity and by extension, Ankerich’s official immunity. Upon

our review, and holding that the trial court erred in finding that the patrol vehicle was

in “use” as contemplated by OCGA § 33-24-51 (b), we reverse the trial court’s denial

of Ankerich’s’ motion for summary judgment as to the issue of the waiver of

sovereign immunity in Appeal No. A12A0974, and affirm the trial court’s denial of

Savko’s motions for summary judgment in Appeal No. A12A0975.

Summary judgment is appropriate if the pleadings and the undisputed evidence

show that there exists no genuine issue as to any material fact, and that the moving

party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from

the grant or denial of summary judgment, the appellate courts conduct a de novo

review, construing all reasonable inferences in the light most favorable to the

2 nonmoving party. Alston & Bird v. Mellon Ventures II, 307 Ga. App. 640 (706 SE2d

652) (2010).

So viewed, the record shows that Ankerich was directing traffic at an

intersection near North Hart Elementary School in Hart County at approximately 7:30

a.m. She parked her patrol car on the side of Highway 77 with the blue lights

activated. There were flashing lights in the front and rear of the patrol car. Ankerich

stood in the middle of the intersection approximately 18 feet from her patrol car,

wearing reflective gloves and a reflective vest. Her purpose was to direct northbound

and southbound traffic on Highway 77 so that school buses could proceed through

the intersection of Kelly Road and Highway 77 to the elementary school. At one

point, she signaled the school bus driver to proceed through the intersection.

Ankerich did not see that Savko’s car was also approaching the intersection on

Highway 77, and Savko’s vehicle collided with the school bus. Savko brought suit

against Ankerich and Sheriff Cleveland, under the respondeat superior doctrine,

alleging, among other things, that Ankerich was negligent in the performance of her

duties. State Farm and Nationwide were served with a copy of the complaint as the

uninsured/underinsured motorist carriers.

3 Savko moved for partial summary judgment against Ankerich on the issue of

whether sovereign immunity was waived to the extent of the county’s liability

insurance because she was injured as a result of Ankerich’s use of the patrol vehicle.

She also moved for summary judgment against Nationwide and State Farm Insurance,

arguing that she had uninsured/underinsured motorist coverage in effect and available

as a result of injuries caused by Ankerich’s use of an underinsured motor vehicle. In

her motion against Nationwide, Savko further maintained that she was entitled to

summary judgment on whether her uninsured motorist coverage policy limits were

equal to her liability coverage limit of $50,000, because she had not designated on her

policy either a rejection of coverage or an election of lesser or greater amount of

coverage. Ankerich later filed a responsive motion for summary judgment on the

issue of whether there had been a waiver of sovereign immunity.

The trial court denied both motions for summary judgment on the immunity

issue. It held that sovereign immunity was dependent on whether Ankerich was

“using” the patrol car when Savko was injured, and that the issue of “use” was for a

jury to determine. The trial court also denied Savko’s motions for partial summary

judgment against State Farm and Nationwide upon finding that the results were

dependent on the same issue of the “ ‘use’ of the patrol vehicle as a covered vehicle.”

4 Further, the trial court denied summary judgment to Savko against Nationwide on the

issue of the amount of her uninsured/underinsured coverage. Finally, the trial court

found that there was a question as to whether Savko was covered under the

Nationwide policy. The trial court certified for immediate review the denial of the

motions for summary judgment, and we granted Ankerich’s application for

interlocutory review. This appeal and cross-appeal ensued.

Appeal No. A12A0974

1. Ankerich contends that the trial court erred in denying her motion for

summary judgment, arguing that because she was not “using” her patrol car at the

time of the accident, the county did not waive its immunity by purchasing motor

vehicle liability of insurance pursuant to OCGA § 33-24-51.

Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity. A lawsuit against a [deputy] sheriff in [her] official capacity is considered a suit against the county, and the [deputy] sheriff is entitled to assert any defense or immunity that the county could assert, including sovereign immunity. The question, then, is whether the sovereign immunity of [Hart] County has been waived with respect to the claim asserted against [Ankerich] in this case.

5 (Citations omitted.) Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723)

(2011).

Ankerich contends that Hart County did not waive its sovereign immunity

under OCGA § 33-24-51 (a), which provides in relevant part that

a municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages . . . arising by reason of ownership, maintenance, or use of any motor vehicle by the . . . county.

(Emphasis supplied.) OCGA § 36-92-2 (b) only grants a waiver of sovereign

immunity “for a loss arising out of claims for the negligent use of a covered motor

vehicle . . . to the extent and in the manner provided in this chapter. . . .” (Emphasis

supplied.)1 Thus, to establish a waiver of sovereign immunity, Savko is required to

prove not only the existence and extent of insurance coverage but also that the

negligent use of the county vehicle was both the cause in fact and the proximate cause

of his injury. Rampell v. Williams, 217 Ga. App. 292, 293-294 (2) (457 SE2d 224)

(1995). “The procurement of insurance under this statute does not constitute a waiver

1 A “covered motor vehicle” is any motor vehicle owned, leased or rented by the county, OCGA § 36-92-1 (2), and the parties do not dispute that the patrol car at issue in this case was a “covered motor vehicle.”

6 of sovereign immunity with regard to personal injury caused by the county’s

negligence, unless the negligence of its ‘officer, agent, servant, attorney, or employee’

arises from the use of a motor vehicle. [Cits.]” Simmons v. Coweta County, 229 Ga.

App. 550, 552 (494 SE2d 362) (1997).

This point addresses the issue of causation in relation to a county’s liability for the negligent use of a motor vehicle. In that regard, the plaintiff in this tort action, as in any tort action, must prove causation and damages. With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant’s [active] misuse of a county vehicle was both the cause in fact and the proximate cause of the injury.

(Footnote and punctuation omitted.) Tittle v. Corso, 256 Ga. App. 859, 864 (2) (569

SE2d 873) (2002).

While acknowledging that “whether an event arises from the ‘use’ of a motor

vehicle depends largely on the circumstances, and a bright-line definition is elusive,”

we have nonetheless held that “use” of a vehicle in this context means “whether the

injury originated from, had its origin in, grew out of, or flowed from the use of the

motor vehicle as a vehicle.” (Punctuation omitted.) Gish v. Thomas, 302 Ga. App.

854, 861 (2) (691 SE2d 900) (2010) .

7 In Gish, a deputy sheriff was transporting a suicidal prisoner from magistrate

court back to jail. The deputy left the prisoner alone in the patrol car for a few

minutes with his loaded service revolver on the front seat. Id. at 857. The prisoner

grabbed the gun and shot and killed himself. Id. His family sued the county, but we

held that the county had not waived sovereign immunity through the purchase of

liability insurance because when the suicide occurred, the patrol car “was essentially

being used as a holding cell and did not relate to the use of the patrol car as a

vehicle.” Id. at 861 (2).

We reached a similar conclusion in Williams v. Whitfield County, 289 Ga. App.

301 (656 SE2d 584) (2008). There, a motorist who was involved in a collision at the

intersection of two county roads alleged that the county had negligently failed to warn

motorists of the closure of one of the roads. Id. The motorist argued that the county

had waived its sovereign immunity by placing a large excavator, which was covered

under the county’s liability policy, on the roadside. Id. at 302. We held that the county

had not waived its immunity because the excavator was not being used as a motor

vehicle at the time of the collision, but was instead “merely present as a static

physical mass.” Id. at 305.

8 The facts in Saylor v. Troup County, 225 Ga. App. 489 (484 SE2d 298) (1997),

are also similar. There, a prison inmate on work detail was injured by a swing blade

attached to a vise on a county van parked on the side of the road. We held that the van

was not in “use” for sovereign immunity purposes because it was “inoperative, [and]

parked off the roadway with its engine not engaged” at the time of the accident. Id.

at 490.

Likewise in Tittle, supra, 256 Ga. App. at 859, a motorist sued a sheriff’s

deputy, as well as the sheriff’s department, alleging that the deputy pulled up in his

patrol car and assaulted him while he was having car trouble on a dark night. We held

that the county’s purchase of liability insurance to cover the deputy’s patrol car did

not constitute a waiver of sovereign immunity because the car was not in “use” at the

time of the incident. Id. at 864 (2). This Court rejected the motorist’s argument that

his injury arose from the use of the car because “the headlights and spotlight were

used to illuminate the area and because [the deputy] placed [the motorist] against the

hood of the car.” Id. We concluded, instead, that the patrol car was only remotely

related to the deputy’s alleged tortious conduct. Id.

Ankerich contends that sovereign immunity was not waived because the patrol

car was not being “used” within the meaning of the OCGA § 33-24-51 (a) at the time

9 of the accident. At the time of the collision with Savko’s vehicle, Ankerich’s patrol

car was parked approximately 18 feet from where she stood in the intersection to

direct traffic. Even though its blue lights were activated, we have held that utilization

of a car’s lights for illumination purposes does not constitute “use” in the context of

sovereign immunity. See Tittle, 256 Ga. App. at 859. Even if it can be argued that the

vehicle was used as an ancillary prop to assist Ankerich with her duties in directing

traffic, even the utilization of a vehicle as a physical barrier to alert motorists to be

cautious does not constitute “use.” See Williams, 289 Ga. App. at 301. Under these

circumstances, the car was not in “use” and the county’s purchase of liability

insurance for it did not waive sovereign immunity. Accordingly, the trial court erred

in denying Ankerich’s motion for summary judgment on the basis of sovereign

immunity.

Case No. A12A0975.

2. Savko asserts that the trial court erred in denying her motion for partial

summary judgment because Ankerich was “using” the patrol car as an integral part

of the equipment she used to direct traffic.

Because of our holding in Division 1 regarding the “use” of the patrol vehicle,

we affirm the trial court’s denial of Savko’s motion for summary judgment against

10 Ankerich. Although the trial court erred in its determination that sovereign immunity

had not been waived, summary judgment right for any reason will be affirmed. Hot

Shot Express v. Assicurazioni Generali, 252 Ga. App. 372, 373 (556 SE2d 475)

(2001).

3. Savko also contends that the trial court erred in denying her motions for

partial summary judgment against State Farm and Nationwide, her UM carriers.

Pursuant to her UM coverage, Nationwide was obligated to compensate Savko for

damages she was legally entitled to recover from the owner or operator of an

uninsured motor vehicle which are “due to you by law . . . arising out of the . . .

ownership. . . maintenance; or. . . use of the uninsured motor vehicle,” and State Farm

was liable for damages Savko was “legally entitled to collect . . . arising out of the

operation, maintenance or use of an uninsured motor vehicle.” Savko maintains that

her injuries were caused by the use of Ankerich’s patrol car so as to trigger the UM

coverage in her policies with State Farm and Nationwide.

While only a “slight causal connection” between the damages and the use of

the vehicle is required, Abercrombie v. Ga. Farm Bureau Mutual Ins. Co., 216 Ga.

App. 602, 604 (454 SE2d 813) (1995), this broad interpretation does not extend the

definition of use “to something distinctly remote.” Kinzy v. Farmers Ins. Exchange,

11 293 Ga. App. 509, 510 (1) (667 SE2d 673) (2008). “Ultimately, Georgia law requires

a causal connection between the use of the vehicle and the injury sustained.”

(Citations and punctuation omitted.) Id. In the circumstances present here and

explained in Division 1, Ankerich’s patrol car was not in “use” at the time of the

collision and the county’s purchase of liability insurance did not waive sovereign

Thus, as Savko’s UM coverage was not triggered by the use of Ankerich’s

patrol car, the trial court did not err in denying summary judgment to Savko in her

claim for coverage under her UM policies with State Farm and Nationwide.

Judgment reversed in Appeal No. A12A 0974 and affirmed in Appeal No.

A12A0975. Adams, and McFadden, JJ., concur.