What's the "use": Vehicle Maintenance Liability Barred by Sovereign Immunity Amendment Intended to Promote Waiver
| Citation | Vol. 69 No. 2 |
| Publication year | 2018 |
What's the "Use": Vehicle Maintenance Liability Barred by Sovereign Immunity Amendment Intended to Promote Waiver
Clayton Kendrick
[Page 651]
Local government is an active participant in most communities. It picks up trash weekly, keeps tap water clean, and keeps citizens safe. Local government is the cog that keeps communities running smoothly, and as such, is afforded certain protections. One of those protections is the protection from lawsuits brought by citizens. This is known as the doctrine of sovereign immunity.1 While local government reaches out into the community to keep citizens comfortable and safe, sovereign immunity keeps citizens from reaching in and exposing the government to liability. At times, however, these protections can seem unjust. In 2002, the Georgia General Assembly made an attempt to address such concerns by amending an existing statute to promote the waiver of sovereign immunity.2 The decision in Columbus Consolidated Government v. Woody3 addresses a matter of first impression concerning this statute
[Page 652]
and exposes the likely unintended consequences of the 2002 amendment, which appears to require further attention from the General Assembly.
In the fall of 2011, while on a prisoner work detail, Woody was injured when sparks caused his jumpsuit to ignite. This occurred while Woody was welding a garbage truck belonging to the Columbus Consolidated Government. A personal injury suit followed in which Columbus filed a motion for judgment on the pleadings, asserting that sovereign immunity barred Woody's claims.4 Columbus argued, pursuant to the Official Code of Georgia Annotated (O.C.G.A.) section 33-24-51(b),5 that Woody's injuries did not arise out of the "negligent use" of a motor vehicle, and therefore, sovereign immunity was not waived. The trial court disagreed and denied Columbus' motion, allowing Woody to bring suit.6
On appeal, the Georgia Court of Appeals acknowledged a question of first impression concerning the language of O.C.G.A. § 36-92-27 and the amended language of O.C.G.A. § 33-24-51(b).8 The court ultimately agreed with Columbus and reversed the trial court's ruling.9
A. Historical Application Prior to the Amendment
Prior to the 2002 amendment of O.C.G.A. § 33-24-51(b),10 a local government's decision whether to purchase automobile liability insurance had significant consequences. When a local government entity purchased such liability insurance to provide "coverage for the negligence of any . . . employee in the performance of his official duties, its
[Page 653]
governmental immunity [was] waived to the extent of the amount of insurance so purchased."11 Thus, if a government entity had purchased liability insurance and someone was injured "by reason of ownership, maintenance, operation, or use of any motor vehicle,"12 the government's immunity was waived, and the injured party could sue for damages up to the amount of insurance provided.13 However, if the local government entity did not maintain an automobile liability insurance policy, sovereign immunity was not waived.14 The following cases demonstrate the issues the court faced prior to and after the amendment of O.C.G.A. § 33-24-51.15
In Chamlee v. Henry County Board of Education,16 a student sued the board of education (Board) after being injured while driving a teacher's car during automotive shop class. As part of the class, students worked on teachers' and other students' vehicles to gain experience in automotive maintenance. To ensure that repairs were complete, students were allowed to test drive the vehicles. The injured party in this suit was Samuel Chamlee. Chamlee's parents filed suit on his behalf claiming that the Board failed to establish policies to prevent such an accident. The trial court granted summary judgment to the Board on the grounds of sovereign immunity.17
On appeal, the Chamlees argued that since the Board maintained liability insurance, pursuant to O.C.G.A. § 33-24-51(a),18 the trial court erred in holding them barred from recovery by the doctrine of sovereign immunity.19 During review, the Georgia Court of Appeals noted that "[t]he mere purchase of insurance coverage does not constitute waiver."20
[Page 654]
Rather, the insurance purchased must provide for the negligence of any authorized officer in the performance of his official duties arising by reason of "ownership, maintenance, operation, or use of a motor vehicle."21 The Chamlees argued that even though the shop class teacher was not driving the vehicle at the time of the accident, he was technically using it in his official capacity as a teacher.22 The court ultimately held that an issue of fact remained with regard to the teacher's "use" of the vehicle and that summary judgment was improper based solely on the fact that the teacher was not personally driving the vehicle when the accident occurred.23 While the court did not rule on the scope of the term "use," its holding demonstrated an openness to a broad interpretation, as well as an acknowledgment that injury arising by reason of ownership, maintenance, or operation is actionable.24
In Cameron v. Lang,25 the Georgia Supreme Court heard two cases on a consolidated appeal from the Georgia Court of Appeals regarding auto accidents involving police officers in high-speed chases.26 In the first case, a City of Savannah police car hit a civilian's vehicle while in pursuit of a fleeing suspect. The police car ran a stop sign without operating its emergency lights or siren. The plaintiff sued for the resulting injuries alleging reckless disregard for public safety.27 However, since there was no evidence that the City of Savannah maintained a liability insurance policy, the supreme court held that the court of appeals properly affirmed the lower court's grant of summary judgment based on the doctrine of sovereign immunity.28
[Page 655]
The second case involved a civilian who was killed in Peach County, Georgia when a fleeing suspect crossed the center line of a two-lane road and collided head-on with the decedent's vehicle. The decedent's wife sued the pursuing officer and the county for wrongful death alleging that the officer acted in reckless disregard of law enforcement procedure by choosing to continue the high-speed pursuit, which lead to her husband's death.29 In this case, Peach County maintained a liability insurance policy that covered claims resulting from the operation of motor vehicles. Sovereign immunity was waived, and the plaintiff was allowed to pursue her claim.30
In its opinion, the Georgia Supreme Court called attention to the inconsistent and unfair results caused by the failure to require local government entities to maintain liability insurance policies for motor vehicles.31 The court noted that injured citizens were left at the mercy of the local government and its decision whether to purchase liability insurance, providing no incentive for governing bodies to maintain such a policy.32 Ultimately, the court urged the Georgia General Assembly to remove the discretion that local governing bodies had in purchasing liability insurance, pursuant to O.C.G.A. § 33-24-51(a), and instead, make it a requirement.33
The court spoke, and the General Assembly listened.34 House Bill 112835 was passed in 2002, to become effective January 1, 2005.36 However, the General Assembly did not make the change suggested by the court in Cameron; in fact, the General Assembly did not amend O.C.G.A. § 33-24-51(a) at all.37 Without removing discretion, the General Assembly provided a way for plaintiffs to waive any local government's sovereign immunity, regardless of whether it maintained liability insurance.38 In doing so, the General Assembly established O.C.G.A. § 36-92-2 and amended O.C.G.A. § 33-24-51(b)39 by adding the following
[Page 656]
opening sentence: "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."40 An additional amendment to O.C.G.A. § 33-24-51(b) was made qualifying when immunity would be waived if the local government maintained liability insurance.41 Rather than the mere purchase of liability insurance being the sole criteria for waiving sovereign immunity—assuming injury arose by reason of ownership, maintenance, operation, or use—the local government entity was now required to purchase liability insurance "in an amount greater than the amount of immunity waived as in Code Section 36-92-2."42
The newly established O.C.G.A. § 36-92-2 states, "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 . . . $500,000 because of bodily injury or death of any one person in any one occurrence."43 Starting January 1, 2005, a local government's lack of liability insurance on a motor vehicle involved in an accident no longer barred plaintiffs from bringing suit.44 While it might seem this amendment would open the floodgates for claims against local government entities, that was not necessarily the case.
B. Modern Application Since the Amendment
Consider the plaintiff in Gish v. Thomas,45 who filed suit on December 9, 2005, as administratrix of her son's estate. The mother asserted a claim against Pike County, Georgia for wrongful death after her son committed suicide in the backseat of a Pike County sheriff deputy's patrol car. Officers arrested Jesse Gish for battery after he attacked his mother and transported him to the Pike County Sheriff's Department where it was determined he was suicidal. Pike County sheriff deputy William
[Page 657]
Gilmer then transported Gish to the Clayton County Jail, which had facilities that allowed for the constant monitoring...
To continue reading
Request your trial