2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 9 - Insuring and Indemnification of Public Officers and Employees
Article 1 - State Officers and Employees
§ 45-9-5. Article Not Waiver of Immunity From Action or Provision of Liability Insurance Protection

Nothing in this article shall constitute a waiver of the immunity of the state from any action. The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution.

(Ga. L. 1977, p. 1051, § 3; Ga. L. 1986, p. 150, § 2.)

- For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For article, "Local Government Tort Liability: the Summer of '92," see 9 Ga. St. U.L. Rev. 405 (1993).

JUDICIAL DECISIONS

Waiver of sovereign immunity.

- Establishment of comprehensive general liability trust fund for Department of Public Safety employees, covering negligence in performance of official acts, constituted a waiver of sovereign immunity to the extent of the available insurance in the case of an accident resulting from a high-speed chase by police. Martin v. Georgia Dep't of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987), cert. denied, 484 U.S. 998, 108 S. Ct. 685, 98 L. Ed. 2d 638 (1988).

Although O.C.G.A. § 45-9-5 expresses a legislative intent that sovereign immunity of the state is not to be waived through the furnishing of insurance authorized by O.C.G.A. § 45-9-4, the language of the Constitution (Ga. Const. 1983, Art. I, Sec. II, Para. IX) forces the court to reach a contrary result. Price v. Department of Transp., 257 Ga. 537, 361 S.E.2d 146 (1987).

Fired state employee's monetary claims against a state agency in federal court under the Age Discrimination in Employment Act, Title I of the Americans with Disabilities Act, and 42 U.S.C. § 1981 were dismissed because the General Assembly had not waived its sovereign immunity under the Eleventh Amendment by enacting the Fair Employment Practices Act, O.C.G.A. § 45-9-5, which permitted a state agency to purchase insurance on behalf of the agency's employees; passage of § 45-9-5did not amount to the State of Georgia's waiver of the state's sovereign immunity in federal court because sovereign immunity could never be implicitly waived. Jackson v. Oconee Cmty. Serv. Bd., F. Supp. 2d (M.D. Ga. June 8, 2006).

Cited in Price v. Department of Transp., 182 Ga. App. 353, 356 S.E.2d 45 (1987).

RESEARCH REFERENCES

ALR.

- Liability of public officer or his bond for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436.

Constitutionality of statute appropriating money to reimburse public officer or employee for money paid or liability incurred by him in consequence of breach of duty, 155 A.L.R. 1438.

Appealability, under collateral order doctrine, of order denying qualified immunity in 42 USCS § 1983 or Bivens action for damages where claim for equitable relief is also pending - post-Harlow cases, 105 A.L.R. Fed. 851.