Thе driver of a logging truck failed to obey a stop sign at the intersection of two county roads and, having crossed into the path of on-coming traffic, the truck was struck broadside by appellant-plaintiffs’ vehicle. Seeking to recover for the injuries they sustained as the result of this cоllision, appellants filed suit against the driver of the truck and his employer as well as against the appellees in this case, who are Lаurens County, the five county commissioners in their official capacities, and two county employees in both their official and individual capacities. As against appellees, appellants’ complaint was *405 predicated upon allegations of negligent inspеction and maintenance of the stop sign at the intersection. Although appellees are afforded coverage under a рolicy of liability insurance, they raised the defenses of sovereign and official immunity in their answers and subsequently moved for summary judgment based upon those defenses. In opposing the motions, appellants raised a constitutional challenge to the current statutory scheme whereby a county is afforded sovereign immunity from tort liability. The trial court granted summary judgment in favor of appellees and appellants apрeal.
1. Unless sovereign immunity has been waived, that defense bars appellants’ claims against Laurens County, the five commissioners, and the two сounty employees in their official capacities.
Gilbert v. Richardson,
In the exercise of its constitutional authority to waive thе defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act (GTCA). OCGA § 50-21-20 et seq. However, the waiver of sovereign immunity afforded by that statute does not extend to a county. OCGA § 50-21-22 (5). A county’s sovereign immunity has been waived pursuant to OCGA § 33-24-51 (b), but only “to the extent of the amount of liability insurаnce purchased for the negligence of [county] officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.” (Emphasis supplied.) Gilbert v. Richardson, supra at 749 (4). OCGA § 33-24-51 (b) does not apply because the liability of appellees is not predicated upon their alleged negligent use of an insured motor vehicle. It follows that, under the current statutory scheme, sovereign immunity has not been waived by the General Assembly and remains a viable defense to appellants’ claims. Compare Gilbert v. Richardson, supra at 751 (5).
This statutory scheme does not afford equal treatment to plaintiffs having tort claims against the state and its counties. Plaintiffs with tort claims against the state itself have the benefit of the broad waiver of sovereign immunity afforded by the GTCA, whereas OCGA § 33-24-51 (b) waives the sоvereign immunity of a county only as to tort claims which arise out of the alleged negligent use of an insured motor vehicle. However, nothing in the 1991 сonstitutional amendment mandates that, in the exercise of its authority to waive the de *406 fense of sovereign immunity, the General Assembly must afford equal treatment to all plaintiffs with tort claims against the state and its departments and agencies.
Although equality of treatment is not mandated by the 1991 сonstitutional amendment itself, “a law authorized generally by one provision of the Constitution may not contravene another provision оf the Constitution. [Cits.]”
Glover v. Donaldson,
Accordingly, although the current statutory scheme whereby a county is afforded sovereign immunity from tort liability results in unequal treatment, it is not unconstitutional. Any remedy for this unequal treatment lies with the General Assembly rather than the courts. “The immunity rule now has constitutional status, and solutions to the inequitable problems that it has posed and continues to pose must now be effected by the General Assembly.”
Sheley v. Bd. of Public Ed.,
2. As to appellants’ claims against the two county employees in their individual capacities, subsection (d) of the 1991 constitutional amendment provides no official immunity defense
for ministerial acts negligеntly performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts. . . .
Gilbert v. Richardson, supra at 753 (6).
Whether the acts upon which liability is predicated are ministerial or discretionary is dеtermined by the facts of the particular case.
Nelson v. Spalding County,
is left to [their] personal judgment and is therefore discretionary and not ministerial. Although a public officiаl is liable for damages to those injured by his omissions in performing ministerial duties, he is only liable for errors in the exercise of discretionary duties if his aсts are wilful, malicious, or corrupt. [Cit.] While the adoption of more efficient procedures may be beneficial, we do not believе that [the county employees’] failure to implement different procedures amounts to such wilfulness or corruption of office. . . . [Their] dеcisions in adopting procedures should not be considered in determining [their] liability.
Nelson v. Spalding County, supra at 337 (2) (b). It follows that the trial court correctly granted summary judgment in favor of appellee county employees in their individual capacities.
Judgment affirmed.