Miller v. Georgia Ports Authority , 217 Ga. App. 876 ( 1995 )

Pope, Presiding Judge,

dissenting.

I respectfully dissent. The Georgia Tort Claims Act (GTCA) was enacted as a means to waive the sovereign immunity extended to the “state and all of its departments and agencies” in Art. I, Sec. II, Par. IX (e) of the 1983 Georgia Constitution, as amended effective January 1, 1991. Id. at (a); Gilbert v. Richardson, 264 Ga. 744, 746 (2) (452 SE2d 476) (1994); see also Intl. Business Machines Corp. v. Evans, 265 Ga. 215, 217 (2) (453 SE2d 706) (1995). The first question to be answered then is whether the Authority is entitled to assert the defense of sovereign immunity as a department or agency of the State as those terms are used in the 1991 amendment; if it is not, then the GTCA is inapplicable. By focusing on the applicability of the GTCA without first resolving this issue, the majority and the Authority put the cart before the horse.

The question of whether the Georgia Ports Authority is a “department or agency” of the State under the 1991 amendment is one of first impression. Although the majority relies on cases which suggest that the Authority enjoyed immunity under prior law, the majority acknowledges that “the question of whether the Authority is constitutionally entitled to immunity has not been directly addressed.” I would also point out that even if the Authority enjoyed immunity before the 1991 amendment, “[t]he Supreme Court has construed differently the same phrase contained in the pre-1991 amendment versus the post-1991 amendment for the apparent purpose of changing the impact of the GTCA.” Gilbert v. Richardson, 217 Ga. App. 612 (458 SE2d 405) (1995) (physical precedent only).

Moreover, relying on past precedent leads to the conclusion that the Authority is not a department or agency of the State. Our Supreme Court has looked at entities with similar statutory attributes and concluded that “[wjhile [an] Authority is an instrumentality of the State, it is nevertheless not the State, nor a part of the State, nor an agency of the State. It is a mere creature of the State, having distinct corporate entity.” McLucas v. State Bridge Bldg. Auth., 210 Ga. 1, 6 (77 SE2d 531) (1953). In Thomas v. Hosp. Auth. of Clarke County &c., 264 Ga. 40, 41 (1) (440 SE2d 195) (1994), the court noted that in earlier cases it had “applied a narrow definition in determining what constitutes the state or a political division thereof, distinguishing the state and its political subdivisions from instrumentalities created by the state to carry out various functions.” Id. at 41 (1). See also id. at 41, n. 1. And it makes no difference in this analysis that the statute creating the authority provides that it will be performing “essential governmental functions,”¹ “[s]ince a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute entitled to the protection of sovereign immunity.” Id. at 42. Applying the same considerations here, I would conclude that the Ports Authority is not entitled to the protection of sovereign immunity extended to the state, its departments and agencies, and that the trial court thus erred in dismissing plaintiffs’ complaint for failure to comply with the GTCA.

Decided July 14, 1995 Adams & Ellis, George L. Lewis, Lester B. Johnson III, for appellants. Michael J. Bowers, Attorney General, John B. Ballard, Jr., Roland F. Matson, Senior Assistant Attorneys General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney III, R. Stephen Flagler, for appellee.

I find it unnecessary to address plaintiffs’ remaining enumeration of error, because I do not believe the GTCA applies to plaintiffs’ claims.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

1 As to hospital authorities, see OCGA § 31-7-75 and as to the Ports Authority, see OCGA § 52-2-37.