Crider v. Zurich Insurance , 222 Ga. App. 177 ( 1996 )

Birdsong, Presiding Judge.

This is a negligence suit for damages for injuries sustained when appellant/plaintiff William Darrell Crider was injured while a detainee in the custody of the Department of Corrections, State of Georgia, at the Northwest Detention Center in Cedartown, Georgia. Appellant appeals the trial court’s grant of summary judgment in favor of appellees/defendants Zurich Insurance Company, Polk County, Georgia, and Polk County Board of Commissioners.

On September 8, 1992, appellant was assigned to a tree trimming work detail in Polk County and, at the direction of a Department of Corrections’ guard, was standing in the front bucket of a backhoe that was elevated above the ground. The bucket unexpectedly dropped and momentarily suspended appellant in mid-air; it apparently was re-elevated immediately, but appellant was thrown or fell from the bucket onto the pavement. As a result of this incident, appellant is paralyzed from the neck down. The backhoe was owned by Polk County and was operated by a Polk County employee assigned to work on the tree trimming project.

The trial court granted summary judgment to appellees on the grounds that the county had no insurance covering appellant’s claim and sovereign immunity therefore had not been waived. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. “In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity ‘to the state and all its departments and agencies,’ and this immunity is to prevail except as specifically provided therein.” Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d 476), citing Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). This amendment became effective on September 1, 1991 (id.) and is applicable in this case. Counties are included within the definition of “ ‘agents or departments of the state’ ” as contemplated by the 1991 amendment, and sovereign immunity extends to counties, unless specifically waived by an Act of the General Assembly. Gilbert at 746-747 (2). “[Sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” Id. at 748 (3).

“OCGA § 33-24-51 provides that a county waives its governmental [sovereign] immunity to the extent of the amount of liability insurance purchased for the negligence of its officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.” (Emphasis supplied.) Id. at 748-749 (4); accord Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581). OCGA “§ 33-24-51 (b) provides both a waiver of sovereign immunity and the extent of such waiver and is, therefore, a legislative act waiving sovereign immunity as contemplated by the 1991 amendment.” Gilbert, supra at 751 (4). As OCGA § 33-24-51 (b) in effect provides a legitimate statutory exception to the constitutionally recognized power of sovereign immunity, the statute is subject to strict construction. Compare Bailey v. Williams, 214 Ga. 702, 703 (107 SE2d 209) which holds that an exception to a statutory requirement must be strictly construed.

Pretermitting all other questions raised by appellant is the question whether a backhoe is a “motor vehicle” within the meaning of OCGA § 33-24-51 (a) (sovereign immunity statute) for which insurance to cover liability for damages may be secured and provided. If a backhoe is not such a vehicle, then there exists no waiver of county sovereign immunity in this case, as a matter of law, because according to the waiver provisions of OCGA § 33-24-51 (b) only the purchase of “insurance authorized by subsection (a)” of the Code section results in the waiver of sovereign immunity by the county.

We conclude that this issue is not controlled by the narrow definitions of “motor vehicle” contained in the automobile insurance statutes, because, herein, coverage is sought under a general liability policy, not an automobile insurance policy. Rather, this determination is controlled by the intent of the legislature in passing the sovereign immunity waiver statute and by the language of the general liability insurance contract itself.

OCGA § 33-24-51 (a) provides that “a county ... 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 . . . county.” (Emphasis supplied.) Subsection (b) provides that by the purchase of such insurance a county waives its governmental immunity to the extent of the amount of liability insurance purchased. See OCGA § 33-24-51 (b).

The legislature’s purpose and intent in providing for a waiver of the county’s sovereign immunity is essential to our interpretation as we are charged with construing statutes in order to effectuate such intent and purpose. See OCGA § 1-3-1 (a). Without the waiver provided in OCGA § 33-24-51, Georgia’s Constitution provides for the extension of sovereign immunity to “the state and all of its departments and agencies.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (e). The intent of the legislature in enacting a waiver of sovereign immunity was to allow for the compensation of parties injured by employees and agents of the state through the purchase of liability insurance where recovery is otherwise barred.

Automobile liability policies are purchased to provide coverage consistent with the statutes governing such policies, including the definition of a motor vehicle as being designed primarily for operation upon the public streets, roads and highways. OCGA § 33-34-2; Hinton v. Interstate Guaranty Ins. Co., 220 Ga. App. 699 (470 SE2d 292).

General liability policies are purchased primarily to provide coverage for incidents other than those covered under automobile liability policies. Where, as here, the subject vehicle would not fit the definition of motor vehicle under the automobile liability statutes, as it was not designed for and used primarily on public streets, coverage may be available under the general liability policy if (1) the waiver of sovereign immunity for such liability was authorized by OCGA § 33-24-51 (a); and (2) coverage is provided by the terms of the subject policy.

In determining the intention of the legislature in adopting OCGA § 33-24-51 (a), we note that it covers incidents “arising by reason of ownership, maintenance, operation, or use of any motor vehicle.” Clearly the present incident involves the above elements. Had the legislature intended to limit sovereign immunity waiver to the operation of motor vehicles designed for and used primarily upon the public streets they could easily have provided for the application of the definition of motor vehicle as contained in the automobile liability insurance statutes in the interpretation of the sovereign immunity waiver statute, but they did not do so.

Inasmuch as the county operates numerous vehicles for which coverage would not be available under the automobile liability insurance statutes and policies, it is not unreasonable to assume that it was their intention to provide coverage for incidents involving such vehicles through the purchase of general liability insurance coverage. It would be inconsistent with the purpose of the sovereign immunity waiver statute to hold that the county was not authorized te purchase coverage to provide benefits to victims of motor vehicle incidents simply because the involved motor vehicle was not designed primarily to be used on the highway. Such an interpretation would prefer one class of victims over another where both are injured by motor vehicles, with no mandate from the legislature to do so.

The county’s waiver of sovereign immunity by the purchase of general liability insurance coverage for the type of incident herein involved is clearly authorized under OCGA § 33-24-51 (a). Whether the statute is construed narrowly or broadly, it is the insurance contract which determines whether coverage exists with the existence of a waiver of sovereign immunity being dependent thereon.

The subject general liability insurance contract does not exclude coverage for injury or damage arising out of the use of a backhoe. Indeed, it specifically provides coverage applicable to the present case, for the use of mobile equipment. “Mobile equipment,” in pertinent part, is defined in the contract as “any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; . . . d. Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers.” Furthermore, as Zurich drafted the insurance contract, it will be construed against Zurich. As the county purchased general liability insurance coverage authorized by OCGA § 33-24-51 (a), we find that the trial court erred in granting summary judgment to the appellees.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J., concurs fully and specially.