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Posts Tagged ‘Sovereign Immunity’

Municipalities Continue Winning at Georgia Court of Appeals

Posted on: October 31st, 2019

By: Sun Choy and Wes Jackson

Last week the Georgia Court of Appeals issued a favorable ruling for the City of Statesboro that will benefit municipalities (and their insurers) across the state. The decision included two advantageous decisions for municipalities concerning “nuisance” claims against cities premised on third-party criminal conduct and the extent to which purchasing insurance will waive a city’s sovereign immunity.

In Gatto v. City of Statesboro (Ga. Ct. App. A19A1408, A191409, Oct. 21, 2019), the parents of an underage college student at Georgia Southern University sued the City of Statesboro after their son was killed by a bouncer at a bar. The parents claimed the City had maintained a nuisance by failing to shut down the bar where their son was killed, even though it was widely known by the City and University students as an establishment that will serve alcohol to underage patrons.

The City asserted multiple defenses to this claim, the two most important being (1) a City cannot be liable under a theory of “nuisance” for third-party crime; and (2) the City did not waive its sovereign immunity by purchasing liability insurance because a specific endorsement in its policy provided that the policy would not cover claims for which the City would otherwise be entitled to sovereign immunity.

As to the “nuisance” defense, Freeman Mathis and Gary attorneys Sun Choy, Jake Daly, and Wes Jackson had recently secured a reversal of a $10.6 million trial verdict against the City of Albany on strikingly similar facts. (City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018); see also prior blog posts here and here.) In Gatto, the Court of Appeals relied on Stanford to unanimously hold that cities cannot be liable for criminal conduct on private property under a “nuisance” theory because the “nuisance exception” to sovereign immunity only applies to “takings” claims of property, not to claims for personal injury or loss of life. The Court of Appeals’ decision in Gatto marks an important win for municipalities across the state, as it reinforces the Court’s decision in Stanford and, as a unanimous decision, creates binding precedent on this issue.

In a case of first impression, the Court also ruled favorably for the City on its sovereign immunity defense based on an interpretation of an insurance policy immunity endorsement. In Georgia, municipalities can waive their sovereign immunity on certain claims by purchasing liability insurance. To preserve cities’ sovereign immunity, some carriers have been issuing policies with an endorsement that effectively states the policy does not provide coverage for any claims for which the City would otherwise have sovereign or governmental immunity. Before Gatto, these endorsements and the extent to which they allow a city to retain its sovereign immunity had never been tested at the Georgia Court of Appeals or Supreme Court. However, the Court of Appeals held in Gatto that such endorsements are enforceable and, where the language of the policy expressly provides that it will not cover occurrences when sovereign immunity applies, the policy would not operate to waive sovereign immunity.

Gatto, then, marks two important and favorable developments for municipalities in Georgia. For additional questions about this case or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]) or Wes Jackson ([email protected]).

Sovereign Immunity Finally Bars $10.6 Million Judgment Against City of Albany

Posted on: April 30th, 2019

By: Wes Jackson

Following up on our recent blog post highlighting the Georgia Court of Appeals’ decision to reverse a $10.6 million trial verdict against the City of Albany on sovereign immunity grounds, we are pleased to announce that the Georgia Supreme Court has declined to review the Court of Appeals’ decision. The Supreme Court’s decision marks an important win for local governments in Georgia. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

The wrongful death case concerned the murder of a young man at an illegal night club in Albany, Georgia. The administrators of the man’s estate argued at a trial that the illegal club was essentially a “nuisance” the City of Albany had created or maintained by declining to shutter the club when it had prior opportunities to do so. After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” The Court of Appeals’ decision is available at City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018). The Georgia Supreme Court’s decision to deny plaintiffs’ petition for certiorari makes the Court of Appeals’ decision final.

The case marks an important win for municipalities in Georgia by reinforcing the scope of their defense of sovereign immunity.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).

Georgia General Assembly Passes Waiving Sovereign Immunity for Certain Claims

Posted on: April 11th, 2019

By: William J. Linkous, III

For the second time in recent years the Georgia General Assembly has passed legislation waiving sovereign immunity for certain claims against the State, and against local governments. In 2016, then-Governor Deal vetoed a bill that waived sovereign immunity in specific circumstances on the grounds the waiver was too broad. This year, the General Assembly enacted HB 311, sponsored by Rep. Andy Welch (R-McDonough). The bill must be signed by Governor Kemp within 40 days for it to become law.

HB 311 contains an initial section waiving sovereign immunity for claims seeking declaratory or injunctive relief to remedy an injury in fact caused to an aggrieved person by the state, a state governmental entity, or an officer or employee in his or her official capacity in violation of a state statute, the Georgia Constitution, or the United States Constitution. The bill provides a list of exceptions to the waiver, including claims for monetary relief, attorneys’ fees, or expenses of litigation except as provided in O.C.G.A. § 9-15-14, claims brought in federal court, and claims brought by inmates in penal institutions.

The more interesting provisions of the bill for local government attorneys and officials are the provisions that apply to counties, municipalities, and consolidated governments. The bill would add new provisions found in O.C.G.A. §§ 36-80-50 to 36-80-56 which would waive sovereign immunity as to any claim brought by an aggrieved person in the superior courts of Georgia against counties, municipalities, and consolidated governments or entities relating thereto, or against an officer or employee thereof in his or her official capacity seeking declaratory or injunctive relief in certain circumstances. Those circumstances include (1) challenges to local ordinances, rules, and policies under the U.S. or Georgia constitutions, state statutes, or rules or regulations; (2) remedies to injuries in fact, or imminent threats thereof, of an aggrieved person of a local government, officer, or employee acting without lawful authority, beyond the scope of official power, or in violation of the U.S. or Georgia constitutions, state statutes, rules or regulations, or local ordinances other than zoning ordinances; and (3) remedies to injuries when the injury is related to the award of a proposed agreement with a local government or an officer of employee thereof.  Under category (3), suit must be filed within 10 days from the date that the award is made public.

The provisions relating to local governments also provide a similar list of exceptions to the waiver list for the state. The bill provides that it shall be narrowly construed and shall not alter or amend any other immunities nor any other requirements for filing suit. The bill contains provisions limiting liability for officers and employees in their individual capacities and discouraging suit against employees individually, and it will be interesting to see how those provisions interact with official immunity if the bill is signed into law. The bill also contains a provision prohibiting such suits until 30 days after notice is mailed to the local government providing notice of the claim. If the bill becomes law, this 30-day provision may be a stumbling block to litigants who wish to proceed immediately to a temporary restraining order upon an injunctive relief or declaratory judgment claim. Moreover, such suits cannot be filed later than 90 days after providing the notice. The bill also provides for waiver of sovereign immunity for claims of breach of contract by local governments.

The bill also provides for waiver in quiet title actions and also provides for immediate appeals for judgments, orders, or rulings denying or refusing to grant immunity to one or more parties based upon sovereign, official, qualified, or any other immunity.  However, only one immediate appeal is allowed.

It will be interesting to see whether the bill is signed into law, and if so the implications it will have on local government litigation.

If you have any questions or would like more information, please contact William Linkous at [email protected].