Lead Opinion
The issue presented in this appeal is whether Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution, as amended effective January 1, 1991 (hereinafter “the 1991 amendment”), precludes a waiver of sovereign immunity by a municipality
Carol Bridges brought suit against the City of Thomastоn and a Thomaston police officer seeking damages for her injuries which arose out of a May 1,1992 automobile accident with the officer while he was responding to an emergency call. Bridges alleged as to the City that it negligently entrustеd a vehicle to the officer and was liable for her injuries under the doctrine of respondeat superior. The trial court denied the City’s motion for summary judgment,
The 1991 amendment provides that the General Assembly “may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act.” Id. at (a). The amendment further provides that
[e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments аnd agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
(Emphasis supplied.) Id. at (e). The 1991 amendment differs from its predecessor, which expressly provided for the waiver of sovereign immunity as to those actions for damages asserting claims against “the state or any of its departments and agencies” for which liability insurance protection for such claims had been provided but only tо the extent of that liability coverage.
It is manifest from the voté of the electorate and the express language of the General Assembly that the 1991 amendment was intended to address “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,” OCGA § 50-21-21 (a), whilе limiting the exposure of the state treasury to tort liability by means of the Georgia Tort Claims Act (“the GTCA”), OCGA § 50-21-20 et seq. Viewed in light of the conditions and circumstances under which it was framed, see generally Birdsey v. Wesleyan College,
The City, however, argues that this Court is constrained to hold that municipalities are completely immune from suit. This constraint is said to result from our holding in Hiers v. City of Barwick,
The 1991 amendment, with its plain and seemingly unambiguous phrase “state and all of its departments and agencies,” became effec
We recognize the well-established rule of construction that absent a clear indiсation to the contrary, this Court should accord to virtually identical language in successor provisions the same construction given the original language. See, e.g., Bibb County v. Hancock,
Accordingly, although in Hiers we construed the language in former Art. I, Sec. II, Par. IX to include municipalities, we cannot allow that construction, which effectuated the intent behind the 1983 provision, to bind this Court to a construction which directly conflicts with the obvious intent of the drafters of the 1991 amendment and contravenes the cardinal rule of construction. To do otherwise would be to elevate a judicially-created rule of construction above the clear intention of the electorate and legislature. Accordingly, we cannot agree with the City that we are constrained to hold that “state and its de
Therefore, based on our construction of the language of the amended version of Art. I, Sec. II, Par. IX of the Georgia Constitution, we hold that the trial court properly concluded that Bridges’ suit against the City is not barred by sovereign immunity.
Judgment affirmed.
Notes
We do not herе address the application of the 1991 amendment to counties. See Toombs County v. O’Neal,
Summary judgment was granted to the officer; that ruling is not before this court.
Former Art. I, Sec. II, Par. IX only waived sovereign immunity if an entity procured insurance coverage, but did not require that such coverage be obtained. Ward v. Bulloch County,
Clarke, C. J., the author of the opinion, was joined by Bell and Sears-Collins, JJ., and Judge J. Byron Smith. Hunt, J., concurred in part but dissented to the holding in Division 2 of the opinion that municipalities are included under former Art. I, Sec. II, Par. IX. Benham and Fletcher, JJ., also dissented to Division 2.
It appears that numerous modifications were required in order to arrive at the definition of “State” now codified in OCGA § 50-21-22 (5) and that municipalities were expressly excluded in order to avoid establishing municipal liability under the GTCA. See 9 Ga. State Univ. L. Rev. 349, 351 (1992).
By holding that “state and its departments and agencies” in the 1991 amendment does not include municipalities, we avoid repealing by implication the constitutional provision of Art. IX, Sec. II, Par. IX (see generally McLennan v. Aldredge,
Contrary to the City’s argument, OCGA § 36-33-3 does not protect it against respondeat superior liability where insurance has been purchased. Ekarika v. City of East Point,
Concurrence Opinion
concurring specially.
As amended in 1991, Art. I, Sec. II, Par. IX (e) of the Georgia Constitution of 1983 provides as follows:
Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
(Emphasis supplied.) The issue presented for resolution is whethеr a municipality is a “department or agency” of the state within the meaning of this constitutional provision. The majority concludes that it is not. I concur, but I reach that conclusion by employing a different rationale from that of the majority.
In Hiers v. City of Barwick,
Former Art. I, Sec. II, Par. IX made no specific reference to a municipality’s immunity from liability. It related solely to the sovereign immunity of the state itself and of the state’s “departments and agencies.” The issue of the immunity of municipalities was and is addressed separately in Art. IX, Sec. II, Par. IX. In my оpinion, these separate constitutional provisions clearly evince that the drafters of the Constitution intended that a distinction was to be drawn between the concept of sovereign immunity and that of municipal immunity.
By its terms, the immunity which was constitutionally recognized under former Art. I, Sеc. II, Par. IX is limited to that which cloaks the sovereign state itself and which, consequently, cloaks the departments and agencies through which the sovereign state actually operates. A municipality is not a department or agency through whiсh the sovereign state itself actually operates. As Justice Hunt noted in his dissent in Hiers, supra at 133 (1), a municipality is not a political subdivision of this state, but “is a public corporation and a creature of the legislature. [Cits.]” Thus, a municipality can only be said to act as an agent for the state in the sense that, in lieu of the state, it is authorized to perform delegated duties for and provide delegated services to a certain segment of this state’s citizens who reside within its corporate limits. A muniсipality is entitled to assert immunity when it “undertakes 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,
I conclude, therefore, that
“[t]he majority [in Hiers] err[ed] in including cities under [former] Art. I, Sec. II, Par. IX. The error is important because of the difference in liability for negligence by cities and the state and its subdivisions . . . .”
Hiers v. City of Barwick, supra at 132 (1) (Hunt, J., dissent). Indeed, it is that error which has precipitated the instant appeal, which raises the question “whether cities should properly be included under any state tort claims act that may be enacted [pursuant to thе 1991 amendment].” Hiers v. City of Barwick, supra at 133 (1) (Hunt, J., dissent). Although the majority in the instant case avoids perpetuating this error by distinguishing Hiers as authority for construing the 1991 amendment, I would overrule that decision so as to preclude any future reliance upon it as authority for the proрosition that a municipality is to be considered a “department or agency” of the state as that phrase may be employed in any other constitutional or statutory provision.