ATLANTIC SPECIALTY INSURANCE COMPANY v. CITY OF COLLEGE PARK et al.
S21G0482
In the Supreme Court of Georgia
Decided: February 15, 2022
NAHMIAS, Chief Justice.
Dorothy Wright and her grandchildren, Cameron Costner and Layla Partridge, (collectively, the “Decedents“) were killed when their vehicle was struck by a stolen vehicle that was being chased by College Park Police Department officers. At the time of the accident, the City of College Park had an insurance policy provided by Atlantic Specialty Insurance Company (“Atlantic“), which provided coverage for negligent acts involving the City‘s motor vehicles up to $5,000,000 but also included immunity endorsements which say that Atlantic has no duty to pay damages “unless the defenses of sovereign and governmental immunity are inapplicable.”
Joi Partridge,1 Floyd Costner,2 and Douglass Partridge3 (collectively, the “Plaintiffs“) filed a lawsuit against the City, raising claims of negligence and recklessness resulting in the wrongful deaths of the three Decedents, to which the City raised sovereign immunity as a defense. The Plaintiffs assert that the insurance policy limit is $5,000,000 for the three deaths, while Atlantic maintains that the policy limit is capped at $700,000 under the relevant statutory scheme and the terms of the City‘s policy. As the parties agree, pursuant to
minimum] waiver”
Atlantic intervened in the case to litigate the limit of the insurance policy. The trial court ruled that the policy limit is $5,000,000, and the Court of Appeals affirmed. See Atlantic Specialty Ins. Co. v. City of College Park, 357 Ga. App. 556 (851 SE2d 189) (2020). This Court then granted Atlantic‘s petition for certiorari to decide whether the City‘s insurance policy waives the City‘s sovereign immunity under
1. The pertinent facts are undisputed. On January 31, 2016, the Decedents were killed when their vehicle was struck by a stolen vehicle involved in a high-speed chase with College Park Police officers. At the time of the accident, the City held an insurance policy
(the “Policy“) issued by Atlantic,4 which was effective from June 1, 2015 through June 1, 2016. The Policy included business auto and excess liability coverage, among other things. The limits under the Policy are $1,000,000 under the business auto section and $4,000,000 under the excess liability section.
Both sections of the Policy, however, contained endorsements entitled “Georgia Changes – Protection of Immunity,” which we will refer to as the “Immunity Endorsements.” The business auto section‘s Immunity Endorsement provides as follows:
A. Changes in Liability Coverage
The following is added to A. Coverage under SECTION II – LIABILITY COVERAGE
We have no duty to pay damages or any “covered pollution cost or expense” on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.
B. Changes in Conditions
The following is added to SECTION IV – BUSINESS AUTO CONDITIONS
This policy and any coverages associated therewith does not constitute, nor reflect an intent by you, to waive or forego any defenses of sovereign and governmental immunity available to any insured, whether based upon statute(s), common law or otherwise, including
Georgia Code Section 36-33-1 , or any amendments.
Likewise, the excess liability section‘s Immunity Endorsement provides:
The following is added to SECTION I – COVERAGE
A. INSURING AGREEMENT – EXCESS LIABILITY
We have no duty to pay “damages” on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.
The following is added to SECTION V – CONDITIONS
This policy and any coverages associated therewith does not constitute, nor reflect an intent by you, to waive or forego any defenses of sovereign and governmental immunity available to any insured, whether based upon statute(s), common law or otherwise, including
Georgia Code Section 36-33-1 , or any amendments.
In April 2016, the Plaintiffs filed suit against the City5 in the
State Court of Fulton County (“trial court“), asserting claims of negligence and recklessness in connection with the wrongful deaths of the Decedents. The City answered, raising the defense of sovereign immunity.6
(a) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits: . . . (3) . . . an aggregate amount of $700,000.00 because of bodily injury or death of two or more persons in any one occurrence[.]
Subsection (d) of that statute then says, in pertinent part, that the waiver “shall be increased to the extent that: . . . (3) [t]he local
government entity purchases commercial liability insurance in an amount in excess of the waiver set forth in this Code section.”
In the trial court, meanwhile, the Plaintiffs filed a motion for partial summary judgment, seeking a ruling that the relevant Policy limit is $5,000,000. They contended that, by purchasing the Policy, the City waived its sovereign immunity up to $5,000,000. The Plaintiffs also asserted that the Immunity Endorsements are void because they are contrary to public policy. The trial court deferred ruling on the Plaintiffs’ motion until the federal court resolved Atlantic‘s declaratory judgment action.
In June 2018, the federal court dismissed Atlantic‘s action for lack of subject matter jurisdiction. See Atlantic Specialty Ins. Co. v. City of College Park, 319 F. Supp. 3d 1287 (N.D. Ga. 2018). The Plaintiffs then renewed their motion for partial summary judgment in the trial court, and Atlantic was allowed to intervene in the state court lawsuit to litigate the Policy‘s limit. Atlantic filed its own
motion for partial summary judgment, contending that the Policy‘s limit as to the Plaintiffs’ claims is $700,000.
In August 2019, the trial court ruled that the relevant Policy limit is $5,000,000. The court held that the Immunity Endorsements improperly attempted to “contract around” the sovereign immunity waiver “requirements” of
appealed.
The Court of Appeals affirmed the trial court‘s ruling. See Atlantic Specialty Ins. Co., 357 Ga. App. at 565. Asserting that the legislature‘s intent in enacting
Assembly‘s clear legislative intent.” Atlantic Specialty, 357 Ga. App. at 564-565. The court asserted it is “undisputed that the policy coverage amounts exceed the statutory limits of
2. The Georgia Constitution provides municipalities performing their governmental functions with immunity from civil liability, which only the General Assembly (or the Constitution itself) may waive. See Gatto v. City of Statesboro, 312 Ga. 164, 166-168 (860 SE2d 713) (2021). See also
immunity for municipalities is the State‘s public policy, while also expressly providing several narrow waivers including through operation of
(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section and in Chapter 92 of this title, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability of damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such policy. This subsection shall not be construed to affect any litigation pending on July 1, 1986.
Prior to 2005, local government entities (which include municipalities) had discretion to purchase liability insurance for damages arising from the use of the entities’ motor vehicles under
As a result, courts had to analyze the applicable insurance policy to determine whether the policy covered the particular claim at issue and thus waived sovereign immunity, and to what limit. See Chamlee v. Henry County Bd. of Educ., 239 Ga. App. 183, 185-186 (521 SE2d 78) (1999) (“Resolution of whether sovereign immunity has been waived necessarily requires an analysis of whether the defendant has purchased the type of insurance defined in
“urge[d] the legislature to remove the city and county‘s discretion and require them to procure liability insurance for the operation of their vehicles.” Cameron, 274 Ga. at 127.
In 2002
this Code section.”
Thus, the enactment of the automatic immunity waiver in 2002 changed only the analysis with respect to a loss under the applicable automatic waiver limit, as to which the local government entity‘s purchase of liability insurance is irrelevant. Because of the automatic waiver, there is no dispute in this case that the City‘s sovereign immunity was waived up to $700,000. But to increase the waiver of sovereign immunity beyond $700,000, the analysis remains the same as under the pre-2002 law: the court must determine whether the City, in its discretion, purchased commercial liability insurance in excess of $700,000 that covers the claim at issue.8
The Court of Appeals misinterpreted
While the first tier set out new and mandatory waiver limits, the second tier still requires coverage analysis like the pre-2002 version did to determine whether the insurance that the local government entity purchased actually covers the claim at issue.
contract by which one party, for a compensation called the premium, assumes particular risks of the other party and promises to pay to him or his nominee a certain or ascertainable sum of money on a specified contingency.” (citation omitted)).
In accordance with this principle, while
The Court of Appeals asserted that Atlantic had attempted to “contract around the legislature‘s clear intent to increase compensation for those who sustain injuries arising out of the use of a government motor vehicle.” Atlantic Specialty, 357 Ga. App. at 563. That might be true if Atlantic claimed that the Policy somehow prevented the City from being liable for up to the $700,000 prescribed by the automatic waiver in
Only the automatic waiver limits represent the General Assembly‘s “clear intent to increase compensation.” In amending
limits, thus further waiving sovereign immunity, remains just as it was before 2002 – a decision left to the discretion of local government entities. Under current Georgia law, it is not against public policy for local government entities to decline to purchase liability insurance or to purchase liability insurance that does not cover any and all losses resulting from the use of their motor vehicles. Thus, the Immunity Endorsements do not contravene public policy.9
3. To determine whether the insurance contract between the City and Atlantic provides more than $700,000 of coverage for the Plaintiffs’ claims, we examine the language of the Policy. The Immunity Endorsement to the Policy‘s business auto section states in relevant part: “We have no duty to pay damages . . . on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.” The excess liability section‘s Immunity Endorsement says the same thing. These endorsements do not exclude claims for damages to which the defenses of sovereign and governmental immunity do not apply. Pursuant to
But under a plain reading of the endorsements, the insurance that the City purchased does not cover claims for damages to which the defenses of sovereign and governmental immunity do apply. To
remove any doubt, the Immunity Endorsements add that the Policy
does not constitute, nor reflect an intent by [the City], to waive or forego any defenses of sovereign and governmental immunity
available to any insured, whether based upon statute(s), common law or otherwise, including Georgia Code Section 36-33-1 , or any amendments.
Indeed, while the Plaintiffs and the amicus curiae who supports them express concern about Atlantic‘s reading of the Policy, the City has not expressed any doubt regarding the meaning of the Policy or any disagreement with Atlantic‘s interpretation of the bargained-for policy limits.
The Immunity Endorsements do not render the Policy‘s higher-than-$700,000 limits meaningless. The premiums that the City paid purchased insurance coverage up to the automatic sovereign immunity waiver limits in
limit of $5,000,000. See Owen v. City of Independence, Mo., 445 U.S. 622, 647-648 (100 SCt 1398, 63 LE2d 673) (1980) (“By including municipalities within the class of ‘persons’ subject . . . [to claims under
4. The Court of Appeals would have reached the right result in this case had it followed its analogous precedent. In Gatto v. City of Statesboro, 353 Ga. App. 178 (834 SE2d 623) (2019), a college student died after being beaten to death by a bouncer in a bar and left to die outside. See id. at 178-179. The student‘s parents filed suit against the City of Statesboro, alleging claims of negligence and maintaining a nuisance. See id. at 179-180. The city moved for summary judgment, raising sovereign immunity under
city‘s purchase of liability insurance waived sovereign immunity to the full extent of the insurance policy‘s limits and that the city could not contract around the legislative waiver of sovereign immunity in
The trial court granted summary judgment, and the Court of Appeals affirmed, holding in relevant part that “because the insurance policy does not cover the Gattos’ claims here [as sovereign immunity applies], there is no legislative waiver of sovereign immunity.” Id. at 184. The court rejected the Gattos’ argument that the immunity endorsement “usurps the General Assembly‘s legislative waiver, and allows the City to contract around the waiver.” Id. The court explained that “the General Assembly has expressly provided for waiver where the policy of insurance ‘covers an occurrence for which the defense of sovereign immunity is
available,‘” id. (quoting
The Court of Appeals panel in this case purported to distinguish Gatto by noting that “unlike the statutory scheme in Gatto, the statutory scheme at issue here is decidedly more complex.” Atlantic Specialty, 357 Ga. App. at 562. In fact, there is no material difference in the controlling
of insurance under both
In light of the Immunity Endorsements, the City did not purchase insurance coverage for the Plaintiffs’ asserted claims above the applicable automatic sovereign immunity waiver of $700,000. Accordingly, we reverse the judgment of the Court of Appeals.
Judgment reversed. All the Justices concur.
Notes
(a) 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 on account of bodily injury or death resulting from bodily injury to any person or for damages 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) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of the 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 or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, 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 damages in excess of the amount of immunity waived as provided in Code Section 36-92-2 which are sustained only while the insurance is in force and only to the extent of the limits or the coverage of the insurance policy.
(d) If a 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 but not less than the amount of immunity waived as provided in Code Section 36-92-2.
(e) Premiums on the insurance authorized by subsection (a) of this Code section shall be paid from the general funds of the municipal corporation, county, or political subdivision.
We have described the statutory scheme established by the 2002 law as having two tiers:
The first tier, established under
OCGA § 36-92-1 et seq. , requires local entities to waive sovereign immunity – up to certain prescribed limits – for incidents involving motor vehicles regardless of whether they procure automobile liability insurance. The second tier, enacted byOCGA § 33-24-51 (b) , and as revised in 2002, provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed inOCGA § 36-92-2 .
Gates v. Glass, 291 Ga. 350, 352-353 (729 SE2d 361) (2012) (footnote omitted).
