ATLANTIC SPECIALTY INSURANCE COMPANY v. CITY OF COLLEGE PARK ( 2022 )

In the Supreme Court of Georgia
Decided: February 15, 2022
S21G0482. ATLANTIC SPECIALTY INSURANCE COMPANY v.
CITY OF COLLEGE PARK et al.
NAHMIAS, Chief Justice.
Dorothy Wright and her grandchildren, Cameron Costner and
Layla Partridge, (collectively, the “Decedents”) were killed when
their vehicle was struck by a stolen vehicle that was being chased
by College Park Police Department officers. At the time of the
accident, the City of College Park had an insurance policy provided
by Atlantic Specialty Insurance Company (“Atlantic”), which
provided coverage for negligent acts involving the City’s motor
vehicles up to $5,000,000 but also included immunity endorsements
which say that Atlantic has no duty to pay damages “unless the
defenses of sovereign and governmental immunity are inapplicable.”
Joi Partridge,1 Floyd Costner, 2 and Douglass Partridge 3
(collectively, the “Plaintiffs”) filed a lawsuit against the City, raising
claims of negligence and recklessness resulting in the wrongful
deaths of the three Decedents, to which the City raised sovereign
immunity as a defense. The Plaintiffs assert that the insurance
policy limit is $5,000,000 for the three deaths, while Atlantic
maintains that the policy limit is capped at $700,000 under the
relevant statutory scheme and the terms of the City’s policy. As the
parties agree, pursuant to OCGA § 36-92-2 (a) (3), the sovereign
immunity of local government entities is automatically waived up to
$700,000 in this instance, regardless of whether the City has a
liability insurance policy. However, OCGA § 36-92-2 (d) (3) provides
that “[a] local government entity [that] purchases commercial
liability insurance in an amount in excess of the [statutory
1 Individually, as personal representative of the Estate of Dorothy
Wright, as parent and co-personal representative of the Estate of Cameron
Costner, and as parent and co-personal representative of Layla Partridge.
2 Individually and as parent and co-personal representative of the Estate
of Cameron Costner.
3 Individually and as parent and co-personal representative of Layla
Partridge.
2
minimum] waiver” increases the waiver to the extent of the excess
insurance.
Atlantic intervened in the case to litigate the limit of the
insurance policy. The trial court ruled that the policy limit is
$5,000,000, and the Court of Appeals affirmed. See Atlantic
Specialty Ins. Co. v. City of College Park, 357 Ga. App. 556 (851 SE2d
189) (2020). This Court then granted Atlantic’s petition for certiorari
to decide whether the City’s insurance policy waives the City’s
sovereign immunity under OCGA § 36-92-2 (d) (3). As explained
below, because the Court of Appeals incorrectly ruled that the City’s
insurance policy increased the sovereign immunity waiver
notwithstanding the immunity endorsements, which expressly
preclude coverage when a sovereign immunity defense applies, we
reverse.
1. The pertinent facts are undisputed. On January 31, 2016,
the Decedents were killed when their vehicle was struck by a stolen
vehicle involved in a high-speed chase with College Park Police
officers. At the time of the accident, the City held an insurance policy
3
(the “Policy”) issued by Atlantic, 4 which was effective from June 1,
2015 through June 1, 2016. The Policy included business auto and
excess liability coverage, among other things. The limits under the
Policy are $1,000,000 under the business auto section and
$4,000,000 under the excess liability section.
Both sections of the Policy, however, contained endorsements
entitled “Georgia Changes – Protection of Immunity,” which we will
refer to as the “Immunity Endorsements.” The business auto
section’s Immunity Endorsement provides as follows:
A. Changes in Liability Coverage
The following is added to A. Coverage under
SECTION II – LIABILITY COVERAGE
We have no duty to pay damages or any “covered
pollution cost or expense” on your behalf under this
policy unless the defenses of sovereign and
governmental immunity are inapplicable to you.
B. Changes in Conditions
The following is added to SECTION IV –
BUSINESS AUTO CONDITIONS
4 The record intermittently refers to the insurer as “One Beacon.”
However, One Beacon is the insurance broker, while Atlantic is the insurance
provider.
4
This policy and any coverages associated therewith
does not constitute, nor reflect an intent by you, to
waive or forego any defenses of sovereign and
governmental immunity available to any insured,
whether based upon statute(s), common law or
otherwise, including Georgia Code Section 36-33-1,
or any amendments.
Likewise, the excess liability section’s Immunity Endorsement
provides:
The following is added to SECTION I – COVERAGE
A. INSURING AGREEMENT – EXCESS
LIABILITY
We have no duty to pay “damages” on your behalf
under this policy unless the defenses of sovereign
and governmental immunity are inapplicable to you.
The following is added to SECTION V – CONDITIONS
This policy and any coverages associated therewith
does not constitute, nor reflect an intent by you, to
waive or forego any defenses of sovereign and
governmental immunity available to any insured,
whether based upon statute(s), common law or
otherwise, including Georgia Code Section 36-33-1,
or any amendments.
In April 2016, the Plaintiffs filed suit against the City 5 in the
5 The Plaintiffs later amended their complaint to add additional
defendants, but those parties are not part of this appeal.
5
State Court of Fulton County (“trial court”), asserting claims of
negligence and recklessness in connection with the wrongful deaths
of the Decedents. The City answered, raising the defense of
sovereign immunity. 6
While the case was pending before the trial court, Atlantic filed
a declaratory judgment action in the United States District Court
for the Northern District of Georgia, seeking a declaration that the
Policy’s limit as to the Plaintiffs’ claims is $700,000 when reading
the Immunity Endorsements in connection with OCGA § 36-92-2.
OCGA § 36-92-2 says, in pertinent part:
(a) 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 the following
limits: . . . (3) . . . an aggregate amount of $700,000.00
because of bodily injury or death of two or more persons
in any one occurrence[.]
Subsection (d) of that statute then says, in pertinent part, that the
waiver “shall be increased to the extent that: . . . (3) [t]he local
6 It appears to be undisputed that sovereign immunity would bar the
Plaintiffs’ claims against the City if immunity has not been waived. We also
note that no issues of liability (even up to $700,000) have been decided at this
point, and we express no opinion on those issues.
6
government entity purchases commercial liability insurance in an
amount in excess of the waiver set forth in this Code section.” OCGA
§ 36-92-2 (d) (3).
In the trial court, meanwhile, the Plaintiffs filed a motion for
partial summary judgment, seeking a ruling that the relevant Policy
limit is $5,000,000. They contended that, by purchasing the Policy,
the City waived its sovereign immunity up to $5,000,000. The
Plaintiffs also asserted that the Immunity Endorsements are void
because they are contrary to public policy. The trial court deferred
ruling on the Plaintiffs’ motion until the federal court resolved
Atlantic’s declaratory judgment action.
In June 2018, the federal court dismissed Atlantic’s action for
lack of subject matter jurisdiction. See Atlantic Specialty Ins. Co. v.
City of College Park, 319 FSupp.3d 1287 (N.D. Ga. 2018). The
Plaintiffs then renewed their motion for partial summary judgment
in the trial court, and Atlantic was allowed to intervene in the state
court lawsuit to litigate the Policy’s limit. Atlantic filed its own
7
motion for partial summary judgment, contending that the Policy’s
limit as to the Plaintiffs’ claims is $700,000.
In August 2019, the trial court ruled that the relevant Policy
limit is $5,000,000. The court held that the Immunity Endorsements
improperly attempted to “contract around” the sovereign immunity
waiver “requirements” of OCGA §§ 36-92-2 and 33-24-51.7 Atlantic
7 OCGA § 33-24-51 says:
(a) A municipal corporation, a county, or any other political
subdivision of this state is authorized in its discretion to secure
and provide insurance to cover liability for damages on account of
bodily injury or death resulting from bodily injury to any person or
for damages to property of any person, or for both arising by reason
of ownership, maintenance, operation, or use of any motor vehicle
by the municipal corporation, county, or any other political
subdivision of this state under its management, control, or
supervision, whether in a governmental undertaking or not, and
to pay premiums for the insurance coverage.
(b) 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. Whenever a
municipal corporation, a county, or any other political subdivision
of the state shall purchase the insurance authorized by subsection
(a) of this Code section to provide liability coverage for the
negligence of any duly authorized officer, agent, servant, attorney,
or employee in the performance of his or her official duties in an
amount greater than the amount of immunity waived as in Code
Section 36-92-2, its governmental immunity shall be waived to the
extent of the amount of insurance so purchased. Neither the
municipal corporation, county, or political subdivision of this state
nor the insuring company shall plead governmental immunity as
a defense; and the municipal corporation, county, or political
8
appealed.
The Court of Appeals affirmed the trial court’s ruling. See
Atlantic Specialty Ins. Co., 357 Ga. App. at 565. Asserting that the
legislature’s intent in enacting OCGA §§ 36-92-2 and 33-24-51 was
to “protect members of the public by waiving the sovereign immunity
of local government entities with respect to claims for the negligent
use of a motor vehicle and establishing the limits of the amount of
the waiver in the event the government entity purchases liability
insurance,” the Court of Appeals concluded that “Atlantic’s
application of this statutory scheme runs counter to the General
subdivision of this state or the insuring company may make only
those defenses which could be made if the insured were a private
person.
(c) The municipal corporation, county, or any other political
subdivision of this state shall be liable for damages in excess of the
amount of immunity waived as provided in Code Section 36-92-2
which are sustained only while the insurance is in force and only
to the extent of the limits or the coverage of the insurance policy.
(d) If a verdict rendered by the jury exceeds the limits of the
applicable insurance, the court shall reduce the amount of said
judgment or award to a sum equal to the applicable limits stated
in the insurance policy but not less than the amount of immunity
waived as provided in Code Section 36-92-2.
(e) Premiums on the insurance authorized by subsection (a) of this
Code section shall be paid from the general funds of the municipal
corporation, county, or political subdivision.
9
Assembly’s clear legislative intent.” Atlantic Specialty, 357 Ga. App.
at 564-565. The court asserted it is “undisputed that the policy
coverage amounts exceed the statutory limits of OCGA § 36-92-
2 (a) (3).” Id. at 563. The court added that to interpret the Immunity
Endorsements as argued by Atlantic would “grant insurers and local
government entities carte blanche to contract around the
legislature’s clear intent to increase compensation for those who
sustain injuries arising out of the use of a government motor
vehicle.” Id. Atlantic filed a petition for certiorari, which this Court
granted.
2. The Georgia Constitution provides municipalities
performing their governmental functions with immunity from civil
liability, which only the General Assembly (or the Constitution
itself) may waive. See Gatto v. City of Statesboro, 312 Ga. 164, 166-
168 (860 SE2d 713) (2021). See also Ga. Const. of 1983 Art. IX, Sec.
II, Par. IX (“The General Assembly may waive the immunity of
counties, municipalities, and school districts by law.”). In OCGA
§ 36-33-1 (a), the General Assembly reiterated that sovereign
10
immunity for municipalities is the State’s public policy, while also
expressly providing several narrow waivers including through
operation of OCGA §§ 33-24-51 and 36-92-2:
(a) Pursuant to Article IX, Section II, Paragraph IX of the
Constitution of the State of Georgia, the General
Assembly, except as provided in this Code section and in
Chapter 92 of this title, declares it is the public policy of
the State of Georgia that there is no waiver of the
sovereign immunity of municipal corporations of the state
and such municipal corporations shall be immune from
liability of damages. A municipal corporation shall not
waive its immunity by the purchase of liability insurance,
except as provided in Code Section 33-24-51 or 36-92-2, or
unless the policy of insurance issued covers an occurrence
for which the defense of sovereign immunity is available,
and then only to the extent of the limits of such policy.
This subsection shall not be construed to affect any
litigation pending on July 1, 1986.
OCGA § 36-33-1 (a).
Prior to 2005, local government entities (which include
municipalities) had discretion to purchase liability insurance for
damages arising from the use of the entities’ motor vehicles under
OCGA § 33-24-51, which at that time provided “a limited waiver of
their governmental immunity to the amount of the insurance
purchased.” Cameron v. Lang, 274 Ga. 122, 126 (549 SE2d 341)
11
(2001). As a result, courts had to analyze the applicable insurance
policy to determine whether the policy covered the particular claim
at issue and thus waived sovereign immunity, and to what limit. See
Chamlee v. Henry County Bd. of Educ., 239 Ga. App. 183, 185-186
(521 SE2d 78) (1999) (“Resolution of whether sovereign immunity
has been waived necessarily requires an analysis of whether the
defendant has purchased the type of insurance defined in OCGA
§ 33-24-51 (a) and (b) and whether the claim falls within that
coverage.” (emphasis in original)). See also Dugger v. Sprouse, 257
Ga. 778, 778 (364 SE2d 275) (1988) (explaining that under the
sovereign immunity provision in Article I of the 1983 version of the
Georgia Constitution, which waived immunity based on a county’s
purchase of insurance, “where the plain terms of the policy provide
that there is no coverage for the particular claim, the policy does not
create a waiver of sovereign immunity as to that claim. . . . Where
there is no insurance coverage, there is no waiver of sovereign
immunity.”). Recognizing that this statutory scheme disincentivized
local government entities from purchasing insurance, this Court
12
“urge[d] the legislature to remove the city and county’s discretion
and require them to procure liability insurance for the operation of
their vehicles.” Cameron, 274 Ga. at 127.
In 2002 (although not effective until 2005), the General
Assembly amended OCGA § 33-24-51 and added OCGA § 36-92-2.
See Ga. L. 2002, p. 579, §§ 1, 3. However, instead of requiring cities
and counties to purchase liability insurance for the use of their
motor vehicles as the Court had suggested in Cameron, the General
Assembly established an automatic waiver of sovereign immunity
for losses arising out of claims for the negligent use of covered motor
vehicles up to certain prescribed limits, including $700,000 for the
bodily injury or death of two or more persons in a single occurrence.
See OCGA § 36-92-2 (a) (3). The new § 36-92-2 (d) then listed three
ways by which a local government entity could increase the
immunity waiver. The one at issue here, in subsection (d) (3), says
that “[t]he waiver provided by this chapter shall be increased to the
extent that . . . [t]he local government entity purchases commercial
liability insurance in an amount in excess of the waiver set forth in
13
this Code section.” OCGA § 36-92-2 (d) (3).
Thus, the enactment of the automatic immunity waiver in 2002
changed only the analysis with respect to a loss under the applicable
automatic waiver limit, as to which the local government entity’s
purchase of liability insurance is irrelevant. Because of the
automatic waiver, there is no dispute in this case that the City’s
sovereign immunity was waived up to $700,000. But to increase the
waiver of sovereign immunity beyond $700,000, the analysis
remains the same as under the pre-2002 law: the court must
determine whether the City, in its discretion, purchased commercial
liability insurance in excess of $700,000 that covers the claim at
issue. 8
8 We have described the statutory scheme established by the 2002 law
as having two tiers:
The first tier, established under OCGA § 36-92-1 et seq., requires
local entities to waive sovereign immunity – up to certain
prescribed limits – for incidents involving motor vehicles
regardless of whether they procure automobile liability insurance.
The second tier, enacted by OCGA § 33-24-51 (b), and as revised in
2002, provides for the waiver of sovereign immunity to the extent
a local entity purchases liability insurance in an amount exceeding
the limits prescribed in OCGA § 36-92-2.
Gates v. Glass, 291 Ga. 350, 352-353 (729 SE2d 361) (2012) (footnote omitted).
14
The Court of Appeals misinterpreted OCGA § 36-92-2 (d) (3) to
mean that the purchase of liability insurance in excess of the
statutorily prescribed limit in subsection (a) waives sovereign
immunity to the limit of the insurance purchased for any sort of
claim. But an insurance policy does not normally provide blanket
coverage for any and all claims. Insurance policies are contracts that
specify what types of losses are covered and to what monetary limits,
and the premiums paid by policyholders are normally determined by
assessing the risk that the insurer assumes for the specific claims
covered. See OCGA § 33-1-2 (4) (defining “insurance” as used in the
Insurance Title as “a contract which is an integral part of a plan for
distributing individual losses whereby one undertakes to indemnify
another or to pay a specified amount or benefits upon determinable
contingencies”); Bankers’ Health & Life Ins. Co. v. Knott, 41 Ga. App.
639, 643 (154 SE 194) (1930) (“‘Broadly defined, insurance is a
While the first tier set out new and mandatory waiver limits, the second tier
still requires coverage analysis like the pre-2002 version did to determine
whether the insurance that the local government entity purchased actually
covers the claim at issue.
15
contract by which one party, for a compensation called the premium,
assumes particular risks of the other party and promises to pay to
him or his nominee a certain or ascertainable sum of money on a
specified contingency.’” (citation omitted)).
In accordance with this principle, while OCGA § 33-24-51 (b)
cross-references the waiver of sovereign immunity provided by
OCGA § 36-92-2, OCGA § 33-24-51 (c) specifies that a local
government entity is “liable for damages in excess of the amount of
immunity waived as provided in Code Section 36-92-2 which are
sustained only while the insurance is in force and only to the extent
of the limits or the coverage of the insurance policy.” Thus, for
example, a commercial liability policy covering only the negligent
use of a city’s garbage trucks is not “insurance purchased” for
purposes of a claim arising from the negligent use of the city’s police
cars. Likewise, purchase of a commercial liability insurance policy
that expired prior to an accident would not be “insurance purchased”
under OCGA § 36-92-2 (d) (3) to raise the sovereign immunity
waiver for that accident above the automatic waiver limit.
16
The Court of Appeals asserted that Atlantic had attempted to
“contract around the legislature’s clear intent to increase
compensation for those who sustain injuries arising out of the use of
a government motor vehicle.” Atlantic Specialty, 357 Ga. App. at
563. That might be true if Atlantic claimed that the Policy somehow
prevented the City from being liable for up to the $700,000
prescribed by the automatic waiver in OCGA § 36-92-2 (a) (3). But
Atlantic has never argued that the Immunity Endorsements allow
the City to avoid that waiver. Instead, Atlantic has argued only that
the City did not waive immunity for liability above $700,000 under
OCGA § 36-92-2 (d) (3).
Only the automatic waiver limits represent the General
Assembly’s “clear intent to increase compensation.” In amending
OCGA § 33-24-51 and enacting OCGA § 36-92-2 in 2002, the
legislature did not guarantee full compensation or require local
government entities to purchase liability insurance providing
compensation above the automatic waiver limits. The purchase of
insurance providing coverage in excess of the automatic waiver
17
limits, thus further waiving sovereign immunity, remains just as it
was before 2002 – a decision left to the discretion of local government
entities. Under current Georgia law, it is not against public policy
for local government entities to decline to purchase liability
insurance or to purchase liability insurance that does not cover any
and all losses resulting from the use of their motor vehicles. Thus,
the Immunity Endorsements do not contravene public policy. 9
9 Appellate courts in two other states with similar statutory sovereign-
immunity-waiver schemes have repeatedly held that insurance policies with
similar immunity endorsements do not waive sovereign immunity. See, e.g.,
State ex rel. City of Grandview v. Grate, 490 SW3d 368, 372 (Mo. 2016) (holding
that a city “did not waive sovereign immunity when it purchased an insurance
policy that disclaimed coverage for any actions that would be prohibited by
sovereign immunity”); Patrick v. Wake County Dept. of Human Svcs., 655 SE2d
920, 923-924 (N.C. App. 2008) (“A governmental entity does not waive
sovereign immunity if the action brought against [it] is excluded from coverage
under [its] insurance policy.”). See also Memorial Hospital of Sweetwater
County v. Menapace, 404 P3d 1179, 1185 (Wyo. 2017) (“[W]e must again
emphasize that a government entity’s purchase of liability insurance is not an
absolute or complete waiver of immunity. The purchase of insurance extends
liability only to the extent of the insurance coverage.”). An amicus curiae brief
in support of the Plaintiffs notes that a federal district court, applying a
somewhat similar statutory scheme in Minnesota law, ruled that an immunity
endorsement subverted the statute and “[t]he mere act of procuring insurance
in excess of the statutory caps constitutes a waiver [of sovereign immunity].”
Frazier v. Bickford, No. 14-CV-3843 (SRN/JJK), 2015 WL 6082734, at *4, *8
(D. Minn. Oct. 15, 2015). The policy language at issue in Frazier was somewhat
different than in the Policy here, but more significantly, we are not persuaded
by the district court’s statutory analysis (and we note that the magistrate judge
in that case had reached the opposite conclusion).
18
3. To determine whether the insurance contract between the
City and Atlantic provides more than $700,000 of coverage for the
Plaintiffs’ claims, we examine the language of the Policy. The
Immunity Endorsement to the Policy’s business auto section states
in relevant part: “We have no duty to pay damages . . . on your
behalf under this policy unless the defenses of sovereign and
governmental immunity are inapplicable to you.” The excess
liability section’s Immunity Endorsement says the same thing.
These endorsements do not exclude claims for damages to which the
defenses of sovereign and governmental immunity do not apply.
Pursuant to OCGA §§ 33-24-51 (b) and 36-92-2 (a) (3), the defenses
of sovereign and governmental immunity are clearly not applicable
to losses from the Plaintiffs’ claims up to $700,000. Thus, as all the
parties agree, the Immunity Endorsements do not affect Atlantic’s
duty under the Policy to pay damages up to that amount.
But under a plain reading of the endorsements, the insurance
that the City purchased does not cover claims for damages to which
the defenses of sovereign and governmental immunity do apply. To
19
remove any doubt, the Immunity Endorsements add that the Policy
does not constitute, nor reflect an intent by [the City], to
waive or forego any defenses of sovereign and
governmental immunity available to any insured,
whether based upon statute(s), common law or otherwise,
including Georgia Code Section 36-33-1, or any
amendments.
Indeed, while the Plaintiffs and the amicus curiae who supports
them express concern about Atlantic’s reading of the Policy, the City
has not expressed any doubt regarding the meaning of the Policy or
any disagreement with Atlantic’s interpretation of the bargained-for
policy limits.
The Immunity Endorsements do not render the Policy’s higher-
than-$700,000 limits meaningless. The premiums that the City paid
purchased insurance coverage up to the automatic sovereign
immunity waiver limits in OCGA § 36-92-2 (a) and up to $5,000,000
in the aggregate for other claims to which sovereign immunity does
not apply. For example, claims involving police chases brought
under 42 USC § 1983 would not be subject to sovereign immunity
and thus could be covered up to the Policy’s aggregate maximum
20
limit of $5,000,000. See Owen v. City of Independence, Mo., 445 U.S.
622, 647-648 (100 SCt 1398, 63 LE2d 673) (1980) (“By including
municipalities within the class of ‘persons’ subject . . . [to claims
under 42 USC § 1983], Congress . . . abolished whatever vestige of
the State’s sovereign immunity the municipality possessed.”). These
types of claims are undoubtedly less likely to occur than claims
involving the general use of the City’s covered motor vehicles – but
presumably the premiums paid for that additional coverage would
take that factor into account.
4. The Court of Appeals would have reached the right result
in this case had it followed its analogous precedent. In Gatto v. City
of Statesboro, 353 Ga. App. 178 (834 SE2d 623) (2019), a college
student died after being beaten to death by a bouncer in a bar and
left to die outside. See id. at 178-179. The student’s parents filed suit
against the City of Statesboro, alleging claims of negligence and
maintaining a nuisance. See id. at 179-180. The city moved for
summary judgment, raising sovereign immunity under OCGA § 36-
33-1. See Gatto, 353 Ga. App. at 180. The Gattos argued that the
21
city’s purchase of liability insurance waived sovereign immunity to
the full extent of the insurance policy’s limits and that the city could
not contract around the legislative waiver of sovereign immunity in
OCGA § 36-33-1 (a), despite the policy’s immunity endorsement that
“expressly provides that [the policy] will not cover occurrences when
sovereign immunity applies.” Gatto, 353 Ga. App. at 183.10
The trial court granted summary judgment, and the Court of
Appeals affirmed, holding in relevant part that “because the
insurance policy does not cover the Gattos’ claims here [as sovereign
immunity applies], there is no legislative waiver of sovereign
immunity.” Id. at 184. The court rejected the Gattos’ argument that
the immunity endorsement “usurps the General Assembly’s
legislative waiver, and allows the City to contract around the
waiver.” Id. The court explained that “the General Assembly has
expressly provided for waiver where the policy of insurance ‘covers
an occurrence for which the defense of sovereign immunity is
10Notably, Atlantic was also the insurer in Gatto, and the immunity
endorsement in the policy at issue there is identical to those in the Policy at
issue here. See Gatto, 353 Ga. App. at 183.
22
available,’” id. (quoting OCGA § 36-33-1 (a)), and that this Court
“has specifically analyzed insurance policies to determine whether
they actually provide coverage for a plaintiff’s claims for damages.”
Id. (citing Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) (722
SE2d 755) (2012)). 11
The Court of Appeals panel in this case purported to
distinguish Gatto by noting that “unlike the statutory scheme in
Gatto, the statutory scheme at issue here is decidedly more
complex.” Atlantic Specialty, 357 Ga. App. at 562. In fact, there is no
material difference in the controlling parts of the statutory schemes
or in the pertinent legal analysis. While a municipality’s sovereign
immunity for negligent use of a covered motor vehicle is waived
automatically up to the limit set forth in OCGA § 36-92-2 (a), a
municipality’s waiver of sovereign immunity based on the purchase
11 This Court granted the Gattos’ petition for certiorari to review the
Court of Appeals’ holding regarding their nuisance claim (which we ultimately
affirmed), but we declined to review the sovereign immunity waiver holding.
See Gatto, 312 Ga. at 166 n.2. Gatto’s sovereign-immunity waiver holding was
followed in Sharma v. City of Alpharetta, 361 Ga. App. 692, 694-696 (865 SE2d
287, 290) (2021).
23
of insurance under both OCGA § 36-33-1 (a) and OCGA §§ 36-92-2
(d) and 33-24-51 (b) and (c) is determined by examining whether the
insurance policy actually covers the claim at issue, and to what
limit.
In light of the Immunity Endorsements, the City did not
purchase insurance coverage for the Plaintiffs’ asserted claims
above the applicable automatic sovereign immunity waiver of
$700,000. Accordingly, we reverse the judgment of the Court of
Appeals.
Judgment reversed. All the Justices concur.
24