2020 Georgia Code
Title 36 - Local Government
Chapter 92 - Waiver of Immunity for Motor Vehicle Claims
§ 36-92-2. Maximum Waiver Amount; Exceptions; Liability; Recovery of Interest

1. 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:
   1. $100,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $300,000.00 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, 2005, and until December 31, 2006;
   2. $250,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $450,000.00 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, 2007, and until December 31, 2007; and
   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.
2. 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.
3. 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.
4. 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.
5. Interest prior to judgment may be recovered pursuant to the "Unliquidated Damages Interest Act" as provided for in Code Section 51-12-14; however, any recovery of interest prior to judgment shall be included within the applicable aggregate amount per occurrence as set forth in this Code section.

(Code 1981, §36-92-2, enacted by Ga. L. 2002, p. 579, § 3.)

- Pursuant to Code Section 28-9-5, in 2002, a comma was added following "January 1, 2005" in paragraph (a)(1) and following "January 1, 2007" in paragraph (a)(2).

- For survey article on insurance law, see 60 Mercer L. Rev. 191 (2008). For article, "What's the 'Use': Vehicle Maintenance Liability Barred by Sovereign Immunity Amendment Intended to Promote Waiver," see 69 Mercer L. Rev. 651 (2018).

JUDICIAL DECISIONS

Notice to county sheriff.

- Trial court erred in denying the defendants' motion to dismiss on the ground that the plaintiff's claim against the sheriff was barred by the plaintiff's failure to provide the Sheriff's Office with notice of such claim under O.C.G.A. § 36-11-1 because the plaintiff was legally precluded from even naming the county as the proper defendant, and given that § 36-11-1 did not mandate otherwise, presentment of a claim for which the sheriff can be held vicariously liable must be directed to the sheriff. Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).

- In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county, and granted summary judgment on the same complaint against a city, on sovereign immunity grounds since the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006).

Trial court erred in denying a county's motion for summary judgment in a driver's action alleging that the county was negligent for failing to maintain and repair a roadway or failing to warn of a known hazard because there was no evidence that the county waived the county's sovereign immunity under O.C.G.A. § 36-92-2, and there was no evidence that a county vehicle caused the hole in the roadway; the plaintiff, not the defendants, has the burden of establishing that a county has waived sovereign immunity by purchasing liability insurance protection covering the plaintiff's claim. Effingham County v. Rhodes, 307 Ga. App. 504, 705 S.E.2d 856 (2010).

Trial court erred in denying a county and a county commissioner summary judgment in a driver's action alleging that the county and the commissioner were negligent for failing to maintain and repair a roadway or failing to warn of a known hazard because a suit against the commissioner in the commissioner's official capacity was a claim against the county, and the commissioner could raise any defense available to the county, including sovereign immunity; the driver advanced no argument that an act of the General Assembly specifically waived the sovereign immunity protecting the commissioner. Effingham County v. Rhodes, 307 Ga. App. 504, 705 S.E.2d 856 (2010).

Bus driver failed to show that the waiver of sovereign immunity under O.C.G.A. § 36-92-2(a) for the negligent use of motor vehicles applied to the driver's claims for wrongful discharge, false arrest, and malicious prosecution because the school district's alleged liability for those claims was not predicated upon the school district's negligent use of a motor vehicle. Bomia v. Ben Hill County Sch. Dist., 320 Ga. App. 423, 740 S.E.2d 185 (2013).

- When a local entity purchases automobile liability insurance in an amount greater than the prescribed limits set forth for a waiver of sovereign immunity under O.C.G.A. § 36-92-1 et seq., the entity waives sovereign immunity to the extent of the entity's insurance coverage as required by O.C.G.A. § 33-24-51(b), and the broad definition of "any motor vehicle" set forth in § 33-24-51 applies. Therefore, in a wrongful death and survivor case, a county waived sovereign immunity to the extent of the county's insurance coverage as required by § 33-24-51(b), and the Georgia legislature did not intend to apply a narrow definition of motor vehicle under O.C.G.A. § 36-92-1 when the case involved an injury caused by a bush hog and a tractor. Gates v. Glass, 291 Ga. 350, 729 S.E.2d 361 (2012).

- In a parent's action against a school district for the death of the parent's child as the child tried to board a school bus, although the district had sovereign immunity, the district waived sovereign immunity to the extent of the district's purchase of liability insurance pursuant to O.C.G.A. § 33-24-51(b); the exclusion from the waiver of sovereign immunity for school districts in O.C.G.A. § 36-92-2(a) did not extend to the second sentence of § 33-24-51(b). Tift County Sch. Dist. v. Martinez, 331 Ga. App. 423, 771 S.E.2d 117 (2015), cert. denied, No. S15C1084, 2015 Ga. LEXIS 458 (Ga. 2015).

- In a wrongful death action by a decedent's estate and the decedent's children against the county sheriff, the sheriff's sovereign immunity was waived pursuant to O.C.G.A. § 36-92-2(a) because the claim of reckless disregard for proper law enforcement procedures in pursuing a fleeing suspect came within the ambit of a claim for negligent use of a city or county owned motor vehicle. Strength v. Lovett, 311 Ga. App. 35, 714 S.E.2d 723 (2011), cert. denied, No. S11C1794, 2011 Ga. LEXIS 979 (Ga. 2011).

- In a worker's suit alleging negligence on the part of a county with regard to the county allegedly failing to properly instruct and supervise the worker in the use of a portable tar kettle machine, the trial court erred by granting the county's motion for a judgment on the pleadings based on sovereign immunity as the worker sufficiently alleged that the machine was a vehicle as contemplated by O.C.G.A. § 33-24-51, which established a waiver of sovereign immunity if the county purchased liability insurance to cover damages and injuries arising from the use of motor vehicles under the county's management. Hewell v. Walton County, 292 Ga. App. 510, 664 S.E.2d 875 (2008).

- Driver's employer's uninsured motorist (UM) coverage was available to the driver because the policy promised to pay sums the driver was "legally entitled to recover" from a UM, even though the driver had collided with a county vehicle and the county's partial sovereign immunity prevented the driver from establishing in a lawsuit that the driver was legally entitled to recover the full amount of the driver's damages from the county. FCCI Ins. Co. v. McLendon Enters., 297 Ga. 136, 772 S.E.2d 651 (2015).

- Trial court erred in denying the defendants' motion to dismiss the deputy on the ground that the plaintiff's tort claim was barred by O.C.G.A. § 36-92-3(a) because the deputy was not a governmental entity; rather, the deputy was an employee of the county sheriff's department, was on duty, and was driving a county-owned patrol vehicle when the accident that injured the plaintiff occurred; thus, the deputy was not subject to liability for the accident and the claims against the deputy were barred. Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).

Cited in Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007); Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011); Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015); Cannon v. Oconee County, 353 Ga. App. 296, 835 S.E.2d 753 (2019).