MCBRAYER v. SCARBROUGH ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: October 11, 2023
S22G1152. MCBRAYER et al. v. SCARBROUGH.
ELLINGTON, Justice.
In McBrayer v. Scarbrough, 364 Ga. App. 112, 118 (874 SE2d
146) (2022), the Court of Appeals affirmed an order of the Superior
Court of Tift County granting a judgment on the pleadings in favor
of the Sheriff of Tift County, Gene Scarbrough, in this action brought
by Sherrie McBrayer for the wrongful death of her husband, James
Aaron McBrayer (“the decedent”). The Court of Appeals held that
Scarbrough was immune from suit because McBrayer’s complaint
did not show that the decedent’s death, which occurred while he was
restrained in the back seat of a patrol car, arose from the sheriff’s
deputies’ “use” of the patrol car “as a vehicle,” which, under Court of
Appeals case law construing OCGA §§ 33-24-51 (b) and 36-92-2, is a
prerequisite for a waiver of sovereign immunity for injuries arising
from the “negligent use of a covered motor vehicle.” McBrayer, 364
Ga. App. at 118 (1). In so holding, the Court of Appeals noted that
McBrayer’s complaint did not allege “that the car was running; that
any deputy was seated in the car; that any deputy was poised to
start the car or transport the decedent to any location;” or that the
deputies were otherwise “actively” using the patrol car “as a
vehicle.” Id. at 115 (1). McBrayer thereafter timely petitioned this
Court for a writ of certiorari to the Court of Appeals. 1 We granted
her petition and posed these questions to the parties:
(1) Does “use” of a motor vehicle as provided in
OCGA §§ 33-24-51 (b) and 36-92-2 require the motor
vehicle to be “actively in use” “as a vehicle” when the
injury arose? . . . .
(2) Does loading a person into or restraining a
person in a patrol car constitute the “use” of a motor
vehicle as to which sovereign immunity is waived under
OCGA §§ 33-24-51 (b) and 36-92-2?
As explained below, we hold that the Court of Appeals erred in
limiting the meaning of the word “use” in the phrase “use of a
covered motor vehicle” by reading into OCGA §§ 33-24-51 (b) and 36-
1 We granted a writ of certiorari on March 7, 2023. The case was docketed
to the April 2023 term and orally argued on June 20, 2023.
2
92-2 the words “actively” and “as a vehicle.” Therefore, we reverse
the judgment of the Court of Appeals and remand the case to that
court.
1. Standard of Review and Pertinent Factual and Procedural
Background
“Our review of a trial court’s decision on a motion for judgment
on the pleadings is de novo.” Polo Golf & Country Club Homeowners
Assn., Inc. v. Cunard, 306 Ga. 788, 791 (2) (833 SE2d 505) (2019).
And, in reviewing such motions, “all well-pleaded material
allegations of the opposing party’s pleading are to be taken as true,
and all allegations of the moving party which have been denied are
taken as false.” (Citation and punctuation omitted.) Id. at 791-792
(2). See also Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891,
893 (1) (792 SE2d 680) (2016) (“On appeal, we review de novo the
trial court’s decision on a motion for judgment on the pleadings, and
we construe the complaint in a light most favorable to the [non-
movant], drawing all reasonable inferences in his favor.” (citations
and punctuation omitted)). Further, questions concerning the
3
application of sovereign immunity are legal questions subject to de
novo review. See Ga. Dept. of Natural Resources v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 596 (2) (755 SE2d 184) (2014).
The Court of Appeals, applying this de novo standard of review to
the trial court’s ruling, accurately recounted the pertinent
allegations of McBrayer’s complaint in its opinion:
[McBrayer’s] complaint alleges that, in April 2019, Tift
County deputies tased and apprehended [the decedent].
The decedent’s hands and feet were restrained, and the
deputies allegedly placed him horizontally onto the back
seat of a patrol car before leaving him unattended. The
decedent then passed away while left unattended in the
patrol car, and an autopsy revealed that he died as a
result of excited delirium which was secondary to being
tased. McBrayer, individually and as the decedent’s
surviving spouse and on behalf of the decedent’s children,
filed this wrongful death action against Scarbrough in his
official capacity [as Tift County sheriff]. She claimed that
the incident arose from the deputies’ negligent use of a
motor vehicle, as contemplated by OCGA § 36-92-2, and
that the patrol car was a “covered vehicle,” as that phrase
is used in [OCGA §§] 33-24-51; 36-92-1; and 36-92-2. The
complaint allege[s] that the deputies were negligent
because (1) they placed the decedent face down in the back
seat of the patrol car after having applied extreme force
and restraint on him and left him unattended and
unsupervised; and (2) they used the rear passenger door
to hold a cobble strap that was attached to the decedent’s
feet.
4
McBrayer, 364 Ga. App. at 113. The record also shows that
Scarbrough admitted that he and the Tift County Sheriff’s Office
were members of an Interlocal Risk Management Agency and that
the patrol car was a covered vehicle under an insurance policy.2
In Division 1 of its opinion, the Court of Appeals stated that
whether
an event arises from the “use” of a motor vehicle depends
largely on the circumstances, and a bright-line definition
is elusive. But statutes that provide for a waiver of
sovereign immunity . . . are in derogation of the common
law and thus are to be strictly construed against a finding
2 McBrayer filed suit on September 26, 2019, and Scarbrough answered
on December 16, 2019. On December 7, 2020, Scarbrough filed a motion for a
judgment on the pleadings. Thereafter, McBrayer filed a first amendment to
the complaint and a response to Scarbrough’s motion for a judgment on the
pleadings. Scarbrough filed an answer to the amended complaint as well as a
supplemental brief in support of his motion for a judgment on the pleadings.
Paragraph 7 of the original complaint specifically alleged that McBrayer’s
death arose out of the use of the patrol car “as is contemplated by OGCA § 36-
92-2.” Paragraph 8 of the original complaint and Paragraph 2 of the amended
complaint alleged that McBrayer’s death occurred as the result of the sheriff’s
deputies’ negligence in loading him into the patrol car and leaving him there
unattended and unsupervised. In Paragraph 9 of the original complaint and
Paragraph 3 of the amended complaint, McBrayer alleged that the deputies
were acting within the scope of their official duties and employment; that
Scarbrough was a member of an Interlocal Risk Management Agency; that a
policy of automobile insurance covering the sheriff and his deputies was in full
force and effect; and that the patrol car was a “covered motor vehicle” as that
phrase is used in OCGA §§ 33-24-51, 36-92-1 and 36-92-2. In Scarbrough’s
answer to the amended complaint, he admitted that a policy of liability
insurance was in effect and covered the patrol car in which the decedent died.
5
of waiver.
(Citation omitted.) McBrayer, 364 Ga. App. at 114 (1). Further, the
Court of Appeals observed that, in those cases where it had found a
waiver of sovereign immunity for the “use” of a motor vehicle, the
vehicle was “actively in use when the injury arose” and whether
sovereign immunity was waived depended on “whether the injury
originated from, had its origin in, grew out of, or flowed from the use
of the motor vehicle as a vehicle.” (Citation omitted; emphasis in
original.) Id. at 114. The Court of Appeals determined that,
although the deputies were using the patrol car to confine and
restrain the decedent, the car was not being used as a vehicle.
Moreover, the deputies’ act of “loading” the decedent into the patrol
car did not necessarily mean that the vehicle was “actively in use”
for purposes of waiving sovereign immunity. In Division 2 of its
opinion, the Court of Appeals rejected McBrayer’s argument that
waiver of sovereign immunity is determined by whether the
insurance policy covered the alleged event and confirmed that the
relevant question was whether the vehicle was “in ‘use’ as a vehicle
6
in its ordinary sense.” Id. at 118.
2. Analysis
At issue in this appeal is the meaning of the word “use,” as it
is employed in the phrase “use of a covered motor vehicle,” in the
text of OCGA §§ 33-24-51 and 36-92-23, for purposes of determining
3 OCGA § 33-24-51 provides, in pertinent part and with the pertinent
text emphasized, as follows:
(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 damage 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 this 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
subdivision of this state or the insuring company may make only
7
whether sovereign immunity has been waived. Our analysis is
limited to the scope of the meaning of the word “use” in the context
those defenses which could be made if the insured were a private
person.
OCGA § 36-92-2 provides, in pertinent part and with the pertinent text
emphasized, as follows:
(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) $500,000.00 because of bodily injury or death of any
one person in any one occurrence, an aggregate
amount of $700,000.00 because of bodily injury or
death of two or more persons in any one occurrence,
and $50,000.00 because of injury to or destruction of
property in any one occurrence, for incidents occurring
on or after January 1, 2008.
(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 only to the extent and in the manner provided in this
chapter and only with respect to actions brought in the courts of
this state. This chapter shall not be construed to affect any claim
or cause of action otherwise permitted by law and for which the
defense of sovereign immunity is not available. . . .
(d) The waiver provided by this chapter shall be increased to the
extent that:
(1) The governing body of the local governmental
entity by resolution or ordinance voluntarily adopts a
higher waiver;
(2) The local government entity becomes a member of
an interlocal risk management agency created
pursuant to Chapter 85 of this title to the extent that
coverage obtained exceeds the amount of the waiver
set forth in this Code section; or
(3) The local government entity purchases commercial
liability insurance in an amount in excess of the
waiver set forth in this Code section.
8
of those permissible purposes for which a covered vehicle may be
employed. To answer the questions this Court posed in granting
certiorari, we review the applicable law of sovereign immunity
generally and as applied to Scarbrough. We conduct a textual
analysis of the statutes at issue, applying the fundamental canons
of statutory construction, and then we apply the statutes to the facts
of this case.
(a) Sovereign Immunity and Scarbrough’s Immunity from Suit
“As a general rule, counties enjoy sovereign immunity. The
constitutional reservation of sovereign immunity to ‘the State’
[under Article I, Section II, Paragraph IX (e) of the Constitution of
the State of Georgia] is a constitutional reservation of sovereign
immunity to the counties of the State of Georgia.” (Citations and
punctuation omitted.) Layer v. Barrow County, 297 Ga. 871, 871 (1)
(778 SE2d 156) (2015). See also Gilbert v. Richardson, 264 Ga. 744,
747 (2) (452 SE2d 476) (1994) (holding that, while the reservation of
immunity clause of the Georgia Constitution, as amended in 1991,
did not expressly refer to counties, “the 1991 amendment’s extension
9
of sovereign immunity to ‘the state and its departments and
agencies’ must also apply to counties” (citations omitted)); Ga.
Const. of 1983, Art. I, Sec. II, Par. IX (e) (“Except as specifically
provided in this Paragraph, sovereign immunity extends to the state
and all of its departments and agencies. The sovereign immunity of
the state and its departments and agencies can only be waived by
an Act of the General Assembly which specifically provides that
sovereign immunity is thereby waived and the extent of such
waiver.”). 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.”); OCGA § 36-1-4 (“A
county is not liable to suit for any cause of action unless made so by
statute.”).
Because Scarbrough was sued in his official capacity as sheriff
of Tift County, he “enjoys sovereign immunity because styling a
claim against a county officer in his official capacity is simply a way
of pleading a claim against the county itself.” (Citations omitted.)
Roberts v. Cuthpert, ___ Ga. ___, ___ (2) (2023 WL 6065530, 2023 Ga.
10LEXIS 207) (Case No. S23A0631, decided September 9, 2023). See
also Gilbert v. Richardson, 264 Ga. at 746 n.4 (holding state’s
sovereign immunity extends to counties). Further, the “burden of
demonstrating a waiver of sovereign immunity rests upon the party
asserting it.” Ga. Dep’t of Labor v. RTT Assoc., Inc., 299 Ga. 78, 81
(1) (786 SE2d 840) (2016). Whether Scarbrough’s immunity has been
waived is a jurisdictional issue and not simply a defense to liability.
See McConnell v. Dep’t of Labor, 302 Ga. 18, 19 (805 SE2d 79) (2017)
(“[T]he applicability of sovereign immunity is a threshold
determination, and, if it does apply, a court lacks jurisdiction over
the case and, concomitantly, lacks authority to decide the merits of
a claim that is barred.”).
(b) Waiver of Sovereign Immunity
Code sections 33-24-51 and 36-92-2 both expressly provide for
a waiver of a local government entity’s sovereign immunity and the
extent of such a waiver. OCGA § 33-24-51 (b) expressly states that
“[t]he sovereign immunity of local government entities for a loss
arising out of claims for the negligent use of a covered motor vehicle
11
is waived as provided in Code section 36-92-2.” OCGA § 36-92-2 (a)
states that “[t]he 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 specified monetary limits. OCGA §
36-92-2 (b) states that “[t]he sovereign immunity of local
government entities for a loss arising out of claims for the negligent
use of a covered motor vehicle is waived only to the extent and in the
manner provided in this chapter and only with respect to actions
brought in the courts of this state.” The plain language of these Code
sections express a waiver of sovereign immunity for the negligent
use of a covered motor vehicle. Thus, to answer the questions we
posed to the parties, we must determine the scope of the meaning of
the word “use” as employed in the context of these statutory
provisions.4
With respect to how this Court should construe the meaning of
4 We do not address whether the patrol car at issue is a “covered motor
vehicle” as required by OCGA § 36-92-2 (a). Scarbrough has admitted that the
patrol car was a covered motor vehicle as that phrase is used in OCGA §§ 33-
24-51, 36-92-1, and 36-92-2.
12
“use” in the statutes, McBrayer argues that the word should be
construed as broadly as it is employed in the county’s insurance
policy. Scarbrough, however, argues that “use” should be construed
narrowly to avoid a waiver of sovereign immunity. As demonstrated
below, we disagree with both arguments.
(c) Applicable Rules of Statutory Construction
Generally, when interpreting statutes, including statutes
waiving sovereign immunity, the fundamental canons of statutory
construction apply. See Gilbert, 264 Ga. at 747-748 (3). As we have
explained,
[a] statute draws its meaning . . . from its text. Under our
well-established rules of statutory construction, we
presume that the General Assembly meant what it said
and said what it meant. To that end, we must afford the
statutory text its plain and ordinary meaning, we must
view the statutory text in the context in which it appears,
and we must read the statutory text in its most natural
and reasonable way, as an ordinary speaker of the
English language would.
(Citations and punctuation omitted.) Patton v. Vanterpool, 302 Ga.
253, 254 (806 SE2d 493) (2017). See also Integon Indem. Corp. v.
Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987) (“Statutes
13
should be read according to the natural and most obvious import of
the language, without resorting to subtle and forced constructions,
for the purpose of either limiting or extending their operation.”).
Indeed, “where the statutory text is clear and unambiguous, we
attribute to the statute its plain meaning, and our search for
statutory meaning ends.” (Citations and punctuation omitted).
Patton, 302 Ga. at 254. Only if the text of the statute presents an
ambiguity do we apply the canons of statutory construction
applicable to resolving ambiguities.
(d) The Meaning of “Use” in OCGA §§ 33-24-51 and 36-92-2
In pertinent part, OCGA § 33-24-51 (b) waives the sovereign
immunity of local government entities for losses “arising out of
claims for the negligent use of a covered motor vehicle . . . as
provided in Code Section 36-92-2.” Code Section 36-92-2 (a) and (b)
set financial limits on the extent of the waiver for losses “arising out
of claims for the negligent use of a covered motor vehicle.” Neither
provision defines the word “use,” nor is the word defined elsewhere
in Chapter 92 of Title 36. See OCGA § 36-92-1 (definitions).
14
In ascertaining the ordinary meaning of a word that is not
defined in a statute, it is often helpful to consult dictionaries that
were in use when the statutes were enacted. Although dictionaries
“offer a useful reference for any such analysis[,]” they “cannot be the
definitive source of ordinary meaning in questions of textual
interpretation because they are acontextual, and context is a critical
determinant of meaning.” (Citations omitted.) State v. SASS Group,
LLC, 315 Ga. 893, 898-899 (2) (a) (885 SE2d 761) (2023).
Nevertheless, they do provide a useful starting point.
Code section 33-24-51 was enacted in 1960 and amended in
1985 and 2002.5 Code section 36-92-1 was enacted in 2002.6 From
1960 through 2002, the meaning of the word “use” has remained
constant. In both statutes, the word “use” is primarily employed as
a noun. As a noun, the meaning of the word “use” has been defined
as “the act or practice of employing something; employment.”7 As a
5 See Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1; Ga. L. 2002, p.
579, § 1.
6 See Ga. L. 2002, p. 579, § 3.
7 See, e.g., Merriam-Webster’s Collegiate Dictionary 1378 (Eleventh Ed.,
15
transitive verb, the word has a similar meaning, “to put into action
or service; avail oneself of; employ.”8 The word, in ordinary and
natural parlance, is broad and subject to nuances in meaning based
upon the context in which it is employed. For example, “use”
embraces the employment of a thing in both expected and
unexpected ways, for example, using a hammer to strike a nail or
using a hammer passively as a paperweight or actively as a murder
weapon.
The question here is what qualifies as the “use” of a “covered
motor vehicle.” If “use” carries its ordinary meaning in these
(2003) (defining “use” as “[t]he act or practice of employing something;
employment”); Webster’s New Collegiate Dictionary 1288 (1973) (defining
“use” as “the act or practice of employing something”); Webster’s Seventh New
Collegiate Dictionary 978 (1963) (defining “use” as “the act or practice of
employing something; employment”); Webster’s New Collegiate Dictionary 937
(1949) (defining “use” as the “[a]ct of employing anything or state of being
employed; application; employment; as the use of a pen”).
8 See, e.g., Merriam-Webster’s Collegiate Dictionary 1378 (Eleventh Ed.,
(2003) (defining “use” as “to put into action or service; avail oneself of; employ”);
Webster’s New Collegiate Dictionary 1288 (1973) (defining “use” as “[t]o put
into action or service: avail oneself; employ”); Webster’s Seventh New
Collegiate Dictionary 978 (1963) (defining “use” as “[t]o put into action or
service: avail oneself; employ”); Webster’s New Collegiate Dictionary 937
(1949) (defining “use” as “[t]o convert to one’s service; to avail oneself of; to
employ; as to use a plow”).
16
statutes, then an act is the “use” of a motor vehicle if a “covered
motor vehicle” is being “employed” or “put into action or service.”
That definition of “use” in this context would certainly include
employing vehicles as transportation of people and things; after all,
that is the paradigmatic job of a “motor vehicle.” But “use” of motor
vehicles would naturally include other acts as well. For example, in
common parlance, we would say that extracting a vehicle from a
ditch is a “use” of a tow truck and putting out a fire is a “use” of a
fire engine. In other words, the fact that transportation may be the
most obvious “use” of a motor vehicle does not mean it is necessarily
the only way a “covered motor vehicle” can be put in use.
As employed in the statutes, however, the meaning of “use”
may not be so broad as to encompass every possible use because the
scope and meaning of “use” is limited by its context. The word “use”
is not employed in isolation; in both statutes, the word is employed
in the phrase “for a loss arising out of claims for the negligent use of
a covered motor vehicle.” See OCGA § 33-24-51 (b) and OCGA § 36-
17
92-2 (a).9 The meaning of the word “use” must be considered in the
context of that phrase as well as in the context of the chapter. See
State v. SASS Group, LLC, 315 Ga. at 900 (2) (b) (“[W]hen we
determine the meaning of a particular word or phrase in a
constitutional provision or statute, we consider text in context, not
in isolation.” (citation omitted)). See also OCGA § 36-92-1
(definitions). Scarbrough, however, has not identified any statutory
text that supports a construction excluding any “use” beyond active
transportation, and we see nothing in the chapter that suggests that
“use” has a qualified or narrower meaning than its ordinary
meaning. For example, a “covered” motor vehicle is defined as any
motor vehicle owned, leased, or rented by the local government
entity. See OCGA § 36-92-1 (2) (A), (B). “‘Motor vehicle’ means any
automobile, bus, motorcycle, truck, trailer, or semitrailer, including
its equipment, and any other equipment permanently attached
thereto, designed or licensed for use on the public streets, roads, and
highways of the state.” OCGA § 36-92-1 (6). Notably, although the
9 See footnote 3.
18
General Assembly defined “covered motor vehicle” in a way that
limits the types of vehicles that qualify for a waiver of sovereign
immunity, it did not limit the kinds of uses to which those vehicles
could be put.10
In this case, we conclude that the General Assembly
understood that the word “use” was broad enough to embrace uses
of a motor vehicle that extend beyond mere transportation. If the
10 We note that the General Assembly primarily imposes limitations on
the waiver of sovereign immunity through its definition of the word “claim.” A
“claim” is defined in the chapter as “any demand against a local government
entity for money for a loss caused by negligence of a local government entity,
officer, or employee using a covered motor vehicle while carrying out his or her
official duties or employment.” OCGA § 36-92-1 (1). See also OCGA § 36-92-2
(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 only to the
extent and in the manner provided in this chapter and only with respect to
actions brought in the courts of this state. This chapter shall not be construed
to affect any claim or cause of action otherwise permitted by law and for which
the defense of sovereign immunity is not available.”); OCGA § 36-92-2 (c)
(“Local government entities shall have no liability for losses resulting from
conduct on any part of local government officers or employees which was not
within the scope of their official duties or employment.”); OCGA § 36-92-3 (a)
(“Any local government officer or employee who commits a tort involving the
use of a covered motor vehicle while in the performance of his or her official
duties is not subject to lawsuit or liability therefor. Nothing in this chapter,
however, shall be construed to give the local government officer or employee
immunity from suit and liability if it is proved that the local government
officer’s or employee’s conduct was not within the performance of his or her
official duties.”).
19
General Assembly had meant to limit the meaning of “use” to
actively using a motor vehicle as a vehicle, it could have said so, but
it did not. See Couch v. Red Roof Inns, 291 Ga. 359, 364 (729 SE2d
378) (2012) (“[W]hat a legislature normally does, if it wants to make
sure that readers understand that a word with a broad ordinary
meaning does not include something within that meaning, is to
expressly define that thing out of the category.”). Given the broad
set of responsibilities a local government has, the General Assembly
would have understood that the types of “motor vehicles” to which
this statute would apply would include motor vehicles “designed or
licensed” for purposes beyond active transportation. After all, this is
a statute that allows suit against local governments for negligent
use of government vehicles.
Applying this understanding of the term “use,” we conclude
that the alleged acts in this case involved the “use” of a “covered
motor vehicle.” McBrayer averred that Scarbrough’s deputies
detained the decedent in their patrol car – a use for which the vehicle
was designed – and then left him prone across the back seat,
20
restrained by a cobble strap affixed to the patrol car door, during
which time he died, allegedly from injuries sustained during his
arrest. Under the plain language of the statutes at issue, McBrayer
has asserted a “use” of the patrol car sufficient to waive sovereign
immunity. Further, “loading” the decedent into the back of the
patrol car was inherently a part of the detention process because the
decedent could not have been detained inside the patrol car without
having been “loaded” inside it by the deputies. Thus, the answers to
the questions we posed when granting certiorari are as follows: In
this case, the “use” of a motor vehicle as provided in OCGA §§ 33-24-
51 (b) and 36-92-2 is not limited by the terms “actively in use” “as a
vehicle.” Further, loading a person into and restraining a person in
a patrol car constitutes a “use” of a patrol car as to which sovereign
immunity is waived under OCGA §§ 33-24-51 (b) and 36-92-2.
By reading into the statutes the terms “actively” and “as a
vehicle,” the Court of Appeals altered the plain meaning of “use” and
restricted the scope of the local government’s waiver of sovereign
immunity. Therefore, we overrule that court’s precedent construing
21
“use” of a motor vehicle in OCGA § 33-24-51 (b) and OCGA § 36-92-
2 (a) as being limited to the “active” use of the motor vehicle “as a
vehicle.”11
(e) Scarbrough’s Insurance Policy
McBrayer argues that, for purposes of waiving sovereign
immunity, the General Assembly’s statutory definition of “use” was
to be determined with reference to the applicable policy of insurance
in effect when the loss allegedly occurred. We disagree. Prior to
2005, a county had “the discretion to buy liability insurance for
damages arising from the use of any motor vehicle” 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 (3) (549 SE2d 341) (2001). “As a
result, courts had to analyze the applicable insurance policy to
11 See, e.g., City of Roswell v. Hernandez-Flores, 365 Ga. App. 849, 853-
854 (880 SE2d 340) (2022); McBrayer, 364 Ga. App. at 115 (1); Wingler v. White,
344 Ga. App. 94, 101 (1) (808 SE2d 901) (2017); Columbus Consolidated Govt.
v. Woody, 342 Ga. App. 233, 238 (802 SE2d 717) (2017); Bd. of Commrs. of
Putnam County v. Barefoot, 313 Ga. App. 406, 408-409 (1) (721 SE2d 612)
(2011); Gish v. Thomas, 302 Ga. App. 854, 861 (2) (691 SE2d 900) (2010);
Williams v. Whitfield County, 289 Ga. App. 301, 305 (656 SE2d 584) (2008).
22
determine whether the policy covered the particular claim at issue
and thus waived sovereign immunity, and to what limit.” Atlantic
Specialty Ins. Co. v. City of College Park, 313 Ga. 294, 299 (2) (869
SE2d 492) (2022). In 2002 (although not effective until 2005), the
General Assembly amended OCGA § 33-24-51 and added OCGA §
36-92-2 to create what we described as a “two-tier” system
establishing waivers of sovereign immunity by a local government
for losses arising out of claims for the negligent use of covered motor
vehicles. Gates v. Glass, 91 Ga. 350, 352-353 (729 SE2d 361) (2012).
Under that system, a local government automatically waives
sovereign immunity for such losses up to certain prescribed limits
and also waives sovereign immunity for such losses in excess of the
prescribed limits to the extent it purchased liability insurance for
losses in excess of those limits. Id. In Atlantic Specialty Ins., we
explained that the statutory amendment creating an automatic
waiver of sovereign immunity up to a specified amount necessarily
displaced prior law concerning waivers up to that specified amount:
[T]he enactment of the automatic immunity waiver
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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 sheriff’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
[government entity], in its discretion, purchased
commercial liability insurance in excess of $700,000 that
covers the claim at issue.
(Emphasis in original.) Id. at 300 (2). Likewise, because of the
automatic waiver, whether Scarbrough’s sovereign immunity was
waived up to the monetary limits applicable to this case depends on
whether McBrayer’s complaint asserts a claim pursuant to OCGA
§§ 33-24-51 and 39-92-2 for the negligent use of a covered motor
vehicle. Consequently, although the county has purchased
automobile liability insurance in this case, we do not look to
provisions of the county’s insurance policy to determine whether
McBrayer’s complaint asserts a claim for the negligent use of a
motor vehicle for purposes of Scarbrough’s motion for a judgment on
the pleadings.
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Accordingly, we reverse the judgment of the Court of Appeals
and remand the case to that court.
Judgment reversed and case remanded. All the Justices concur.
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