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>By: Sun Choy
Last week, the Supreme Court of Georgia held in Gates v. Glass that the General Assembly created a “two-tier scheme” for waiving sovereign immunity in motor vehicle claims against cities and counties when it amended O.C.G.A. § 33-24-51 and enacted O.C.G.A. § 36-92-2. In the process, the Court expanded the scope of the waiver of immunity beyond the mandatory “maximum waiver amounts” contained in § 36-92-2 to a greater amount covered by the purchase of “liability insurance.” The opinion is short on analysis and ignores the legislative intent in enacting § 36-92-2.
Before the mandatory waiver amounts contained in § 36-92-2 became effective in 2005, cities and counties waived sovereign immunity to the extent a motor vehicle claim was covered by insurance. If the city or county did not purchase insurance to cover a claim involving a motor vehicle, sovereign immunity was retained and the claim was barred. However, there was no requirement under § 33-24-51 for cities and counties to purchase insurance. Accordingly, many cities and counties did not purchase insurance, leaving plaintiffs without recourse.
Recognizing that such a scheme promotes inconsistent results, the Supreme Court urged the General Assembly to amend § 33-24-51 so a potential recovery did not hinge on whether the city or county had purchased insurance. In response, the General Assembly enacted § 36-92-2, which automatically waives sovereign immunity to a “maximum waiver amount” regardless of the purchase of insurance. In the preamble to the legislation, the General Assembly specifically stated that one of the purposes of the legislation was to bring “uniformity” of results.
Instead of bringing uniformity of results, the Gates decision again promotes inconsistent results by allowing the waiver of immunity to hinge on the non-mandatory purchase of insurance. In Gates, the decedent was killed in a freak accident involving a county owned tractor and bush-hog. Because the tractor and bush-hog does not fall within the more limited definition of “motor vehicle” in § 36-92-2, the automatic waiver of sovereign immunity for motor vehicle claims does not apply.
The Supreme Court considers this the first tier of waiving immunity. The second tier of waiving immunity is essentially the same scheme that existed before the enactment of § 36-92-2 – the city or county waives sovereign immunity to the extent the motor vehicle claim is covered by insurance. This second tier waiver is broader than the first tier, because it is not limited by the statutory definition of “motor vehicle.” Instead, the waiver is determined by whether the “motor vehicle” at issue is covered by insurance. Accordingly, the trial court must now determine if the tractor and bush-hog are covered by the insurance policies purchased by the county.
By creating this second tier of waiver, the Supreme Court has expanded the waiver of sovereign immunity beyond what was intended by General Assembly.