Wе granted certiorari after a divided Court of Appeals reversed in part the grant of summary judgmеnt to the Georgia Department of Human Resources (DHR), which had asserted sovereign immunity as the ground for judgment in its favor.
Poss v. DHR,
When appellees filed this renewal action of a suit brought and dismissed in federаl court (see
Poss v. Ga. Regional Hosp.,
676 FSupp. 258 (S.D. Ga. 1987), aff’d
Poss v. Azar,
874 F2d 820 (11th Cir. 1989)), they named only DHR as a defendant. In their complaint, appellees alleged the department was negligent in failing to train and supervise its staff; in failing to establish rules, regulations, аnd procedures designed to protect seriously ill patients; and in failing to provide adequаte facilities to carry out such care.
1
Citing
Price v. Dept. of Transp.,
1. Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. See
Kelleher v. State of Ga.,
2. The insurance coverage provided in the case at bar is identical, in pertinent part, to the coverage provided in
Martin v. Ga. Dept. of Public Safety,
1) Employees of the State of Georgia, employed by participating Departments or Agency, at the time of an occurrence covered hereinafter.
2) All employees of participating Authorities and Instrumentalities of the State of Georgia, for an occurrence hereinafter сovered.
3) Board Members designated by participating entities.
4) Elected or appointed members of participating entities.
Thus, the insurance policy covers the individuals who comprise the department, and the department, not itself an “insured,” is provided coverage to the extent it is vicariously liable for the actions of its personnel. Martin v. DPS, supra at 303; Price v. Dept. of Transp., supra at 537 (where on motion for reconsideration, this court determined that sovereign immunity was not waived if a departmental employee was not mаde a party defendant). Sovereign immunity is waived only to the extent of the insurance coverage. Martin v. DPS, supra.
The negligence alleged in the case at bar (failure to train and supervise; failure tо enact rules and regulations; failure to provide adequate facilities) is attributable to unnаmed personnel of DHR. DHR’s sovereign immunity is waived to the extent of the insurance coverage provided for the department’s vicarious liability for the negligence of its personnel.
Martin v. DPS,
supra at 303, n. 2. However, the department personnel by whom the alleged negligence was committed hаve never been parties to the action, and the two- and four-
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year statutes of limitation for personal injury and property damage have expired. See OCGA §§ 9-3-31; 9-3-33.
3
The periods of limitatiоn having expired, and appellees being unable now to make the allegedly negligent department personnel parties to the renewal action (see
Patterson v. Rosser Fabrap Intl.,
Judgment reversed.
Notes
Appellees also alleged the department was responsible for the negligence of its employеe, the physician who treated and released appellees’ son. That theory of liability is not an issue in this appeal.
As appellees’ cause of action accrued in 1984, the 1991 amendment to Art. I. Sec. II. Par. IX is not applicable. Donaldson v.
Dept. of Transp.,
The acts of negligence occurred in October 1984. Suit was timely commenced in federal court in June 1985, dismissed without prejudice in March 1988, and timely filed under the renewal statute (OCGA § 9-2-61) in state court in September 1988.