Lead Opinion
The Columbus Consolidated Government (“Columbus”) appeals from the denial of its motion for judgment on the pleadings. Columbus asserts that sovereign immunity bars the claims of Franklin
“On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to [Woody], drawing all reasonаble inferences in his favor.” Hewell v. Walton County,
“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability,” and therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. Bd. of Regents of the Univ. System of Ga. v. Canas,
The sole issue before this Court is whether OCGA §§ 33-24-51 (b) and 36-92-2 waive sovereign immunity for injuries arising from the maintenance work performed by Woody on the garbage truck. In response to Columbus’s motion for judgment on the pleadings, Woody argued, and the trial court found, that OCGA §§ 33-24-51 (b) and
Prior to 2005, subsection (a) of OCGA § 33-24-51 provided that political subdivisions of the state, including municipalities, were authorized to procure liability and property damage insuranсe “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . .. political subdivision.. Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1. Subsection (b) then provided that when a political subdivision purchased “the insurance authorized by subsection (a) . . . its governmental immunity shall be waived to the extent of the amount of insurance so purchased. . . Id. Thus, in Chamlee v. Henry County Bd. of Ed.,
Effective in 2005, however, the legislature amended the statute to change fundamentally how the waiver of sovereign immunity worked, and it did so largely by adding a new first sentence to subsection (b) and by adding several related new Code sections, most importantly, OCGA § 36-92-2. As amended, subsections (a) and (b) of OCGA § 33-24-51 provide as follows:
(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 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.
*236 (b) The sovеreign immunity of local govern ment en tities 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 this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverаge 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. . . .
OCGA § 33-24-51 (emphasis supplied). Correspondingly, new Code section 36-92-2 estаblished the degree to which immunity was waived under the new first sentence of OCGA § 33-24-51 (b) for “negligent use of a covered motor vehicle.” OCGA § 36-92-2 (a). And it also provides:
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 only to the extent and in the manner provided in this chapter and only with respect to actiоns brought in the courts of this state. . . .
OCGA § 36-92-2 (b). Thus, as the Supreme Court of Georgia has summarized, OCGA § 33-24-51, as amended, “create[s] a two-tier scheme within which local governments are deemed to have waived sovereign immunity” Gates v. Glass,
The first tier . . . 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 by OCGA § 33-24-51 (b), and as revised [effective in 2005], provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.
Id. at 352-353 (emphasis supplied). The first sentence in OCGA § 33-24-51 (b) and OCGA § 36-92-2 indicate that the first-tier waiver of immunity does not apply to “ownership, maintenance, [or] operation” of a motor vehicle, the terms found in subsection (a) of OCGA § 33-24-51. Consequently, cases interpreting the statute, as it existed
In construing this statute, we start and if at all possible end, with the plain language оf the statute.
Under our well-established rules of statutory construction . . . we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. We look to the text of the provision in question and its context within the larger legal framewоrk to discern the intent of the legislature in enacting it.
West v. State,
“Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operationIntegon Indent. Corp. v. Canal Ins. Co.,
In the context of the doctrine of sovereign immunity, “statutes ... providing for a waiver of sovereign immunity[ ] are in derogation of the common law and thus are to be strictly construed against a finding of waiver.” Gish v. Thomas,
The plain language of the amended statute shows that the legislature clearly chose not to use all four terms found in subsection (a) of OCGA § 33-24-51 when it added the new first sentence to subsection (b) of OCGA § 33-24-51, which it easily could have. Instead it chose to limit the scope of the first-tier immunity waiver to “a loss arising out of claims for the negligent use of a covered motor vehicle.” OCGA § 33-24-51 (b). Similarly, the second sentence of subsection (b), which was also amended in 2005 to incorporate the new two-tier structure, shows that the second tier of waiver still refers to “the insurance authorized by subsection (a)” whereas the first sentence of subsection (b) refers only to the “negligent use.” Thus, in two separate ways, when amending OCGA § 33-24-51 to create the new first-tier of waiver, the legislature chose not tо refer to all four categories listed in subsection (a). In addition, the legislature twice used the identical “negligent use” language: first in OCGA § 36-92-2 and again in OCGA § 33-24-51 (b).
While we recognize that determining whether an event arises from the “use” of a motor vehicle can depend on the particular circumstances, and a bright-line definition may be elusive,
Accordingly, we hold that waiver of sovereign immunity as contemplated by OCGA §§ 33-24-51 (b) and 36-92-2 is limited to those claims arising out of the negligent use of a covered motor vehicle as а vehicle. Thus for the foregoing reasons, we must conclude that the sovereign immunity of Columbus is not waived with respect to Woody’s claims as alleged. We therefore reverse.
Judgment reversed.
Notes
The Georgia Department of Corrections was originally named as a co-defendant in this suit; however, it was later dismissed without prejudice by order of the trial court.
We note that Woody, while working as a prisoner, clearly stands in the place of an involuntary servant under the provisions of OCGA § 33-24-51 (b). See Chamlee v. Henry County Bd. of Ed.,
In so concluding, this Court in Chamlee noted that although some Supreme Court of Georgia cases had stated that under OCGA § 33-24-51, the government entity waives immunity arising from the use of a motor vehicle, in none of those cases did the Supreme Court actually address any distinction between thе categories of ownership, operation, maintenance, or use. Chamlee,
See, e.g., Williams v. Whitfield County,
Gish,
Concurrence Opinion
concurring fully and specially.
I concur fully in the majority opinion. Because the pleadings do not indicate the existence of a policy, the only waiver of sovereign immunity that could possibly apply would be the automatic waiver described by the majоrity and our Supreme Court as a “first-tier” waiver. See Gates v. Glass,
Woody’s claim arose out of the maintenance of a motor vehicle — not the use of a motor vehicle. So his claim is not within the scope of the automatic “first-tier” waiver. And since he did not allege the existence of an insurance policy which would have effected a second-tier waiver, Columbus was entitled to judgment on the pleadings.
I write separately to explain my reluctance. I concur reluctantly for two reasons. First, it is by no means clear that the legislature intended that the scope of a first-tier waiver differ from the scope of a second-tier waiver. Second, as detailed below, when a government
As to my first concern, a close reading of OCGA § 36-92-2 suggests that, contrary to our holding, the scope of first- and second-tier waivers is the sаme. Reading together subsections (a), (b), and (d) (3) of that Code section leads one to the conclusion that the automatic, first-tier waiver and the second-tier waiver effected by the “purchase [ of] commercial liability insurance in an amount in excess of the waiver set forth in [that] Code section,” OCGA § 36-92-2 (d) (3), are both of immunity from liability “for a loss arising out of claims for the negligent use of a сovered motor vehicle[.]” OCGA § 36-92-2 (a), (b). On the other hand I agree that a comparison of subsections (a) and (b)ofOCGA § 33-24-51 at least suggests different scopes of waiver for the two different, tiers. My doubts about which interpretation we must adopt are dispelled by the rule that “statutes that provide for a waiver of sovereign immunity . . . are in derogation of the common law, [and so] are to be strictly construed against a finding of waiver.” Raw Properties v. Lawson,
My second concern is that our analysis appears to lead to an anomaly that the General Assembly surely did not intend. That anomaly would arise when a government entity purchases insurance coverage for an amount equal to or less than the amount of the first-tier waiver, the automatic waiver of sovereign immunity established by OCGA § 36-92-2 (a).
OCGA § 33-24-51 (a) authorizes certain government entities to purchase insurance coverage for certain claims “arising by reason of ownership, maintenance, operation, or use of any motor vehicle[.]” OCGA § 33-24-51 (a) (emphasis supplied). As mentioned above, subsection (b) of that Code section sеts forth two express waivers of sovereign immunity: the automatic “first-tier” waiver and the “second-tier” waiver, which applies when the government entity has purchased insurance as authorized by subsection (a) “in an amount greater than the amount of immunity waived as in Code Section 36-92-2[.]” OCGA § 33-24-51 (b) (emphasis supplied). Our Supreme Court has interpreted this second tier to “provide[ ] for the waiver of sovereign immunity to the extent a local [government] entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.” Gates, supra,
Compare, for example, the following scenarios. “Plaintiff A” asserts a claim against “County A” for damages of $400,000 arising from the negligent maintenance of a county vehicle. Pursuant to OCGA § 33-24-51 (a), “County A” has purchased insurance coverage for claims arising from ownership, maintenance, operation, or use of a motor vehicle. But the limit of that coverage is $500,000, which does not exceed the limits prescribed in OCGA § 36-92-2 (a). So although “County A” has insurance to cover the $400,000 negligent maintenance claim brought by “Plaintiff A,” “County A” has not waived its sovereign immunity as to that claim. “Plaintiff A” cannot proceed with his claim.
“Plaintiff B” also asserts a claim for damages of $400,000 arising from the negligent maintenance of a cоunty vehicle, but his claim is against “County B.” And, pursuant to OCGA § 33-24-51 (a), “County B” has purchased insurance coverage for claims arising from ownership, maintenance, operation, or use of a motor vehicle. But unlike the insurance purchased by “County A,” the insurance purchased by “County B” has a limit of $500,001 and therefore exceeds the prescribed limits of OCGA § 36-92-2 (a) (3) by one dollar. “County B” has waived its sovereign immunity to thе negligent maintenance claim under the “second-tier” waiver of OCGA § 33-24-51 (b) for claims up to $500,001. So “Plaintiff B” can proceed against “County B” on his $400,000 claim for negligent maintenance.
I see no reason for this disparate treatment of “Plaintiff A” and “Plaintiff B.” Yet the language of OCGA § 33-24-51, as interpreted by our Supreme Court in Gates, supra, seems to require it.
There is an alternative interpretation of OCGA § 33-24-51 that would avoid this result. As quoted above, subsection (b) of that Code section provides for a waiver of sovereign immunity where the governmental entity has purchased insurance pursuant to OCGA § 33-24-51 (a) “in an amount greater than the amount of immunity
But that is not what the Gates decision appears to hold. And statutes relating to sovereign immunity “are to be strictly construed against a finding of waiver.” Raw Properties, supra,
I respectfully suggest that the General Assembly reconsider these provisions.