MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Columbus Consolidated Government (Columbus) appeals from the
denial of its motion for judgment on the pleadings. Columbus
asserts that sovereign immunity bars the claims of Franklin
Woody because the injuries he sustained while welding a
garbage truck belonging to Columbus as part of a prison work
detail did not arise from the negligent use of a motor
vehicle. We agree and reverse because the statute providing
wavier of sovereign immunity is limited in scope and does not
allow a plaintiff to bring suit to recover for injuries
arising solely out of maintenance of a covered motor vehicle.
"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 [Woody],
drawing all reasonable inferences in his favor."
Hewell v. Walton Cty, 292 Ga.App. 510, 510-11 (664
S.E.2d 875) (2008) (citation omitted). So viewed, the
pleadings allege that on October 12, 2011, Franklin Woody was
working a prisoner work detail. Woody was assigned the task
of welding spots on the body of a garbage truck belonging to
Columbus. Sparks from the welding ignited Woody's prison
jumpsuit and he sustained injuries. Woody brought a personal
injury action against Columbus. Columbus filed a motion for
judgment on the pleadings, arguing that Woody's claims
were barred by the doctrine of sovereign immunity. The trial
court denied Columbus' motion, and this appeal followed.
Georgia law, sovereign immunity is an immunity from suit,
rather than a mere defense to liability, " and
therefore, whether a governmental defendant has waived its
sovereign immunity is a threshold issue. Bd. of Regents,
of Univ. Sys. of Ga. v. Canas, 295 Ga.App. 505, 507 (1)
(672 S.E.2d 471) (2009) overruled on other grounds by
Rivera v. Washington, 298 Ga. 770 (784 S.E.2d 775)
(2016). Sovereign immunity extends to the county and can only
be waived by a legislative act of the General Assembly
specifically providing for the wavier and its extent.
Hewell, 292 Ga.App. at 512 (citation omitted);
see also Ga. Const. Art. I, Sec. II, Par. IX.
Accordingly, "[a] waiver of sovereign immunity must be
established by the party seeking to benefit from that
waiver." McCobb v. Clayton Cty., 309 Ga.App.
217, 218 (1) (a) (710 S.E.2d 207) (2011) (citation and
sole issue before this Court is whether OCGA §§
33-24-51 (b) and 36-92-2 waive sovereign immunity for
injuries arising from the maintenance work performed by Woody
on the garbage truck. In response to Columbus's motion
for judgment on the pleadings, Woody argued, and the trial
court found, that OCGA §§ 33-24-51 (b) and 36-92-2
waive Columbus's sovereign immunity. However, an
analysis of the plain language of these statutes as
illuminated by their history shows that that determination
to 2005, subsection (a) of OCGA § 33-24-51 provided that
political subdivisions of the state, including
municipalities, were authorized to procure liability and
property damage insurance "arising by reason of
ownership, maintenance, operation, or use of any motor
vehicle by the political subdivision. . . ." Ga. L.
1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1.
Subsection (b) then provided that when a political
subdivision purchased "the insurance authorized by
subsection (a) . . . its governmental immunity shall be
waived to the extent of the amount of insurance so
purchased." Id. Thus, in Chamlee v. Henry
County Bd. of Educ., 239 Ga.App. 183, 188 (2) (521
S.E.2d 78) (1999), this Court held that subsection (b)
"provides for waiver of sovereign immunity to the extent
of the amount of liability insurance purchased . . . that
arises out of either ownership, maintenance, operation, or
use of a motor vehicle."
in 2005, however, the legislature amended the statute to
change fundamentally how the waiver of sovereign immunity
worked, and it did so largely by adding a new first sentence
to subsection (b) and by adding several related new code
sections, most importantly, OCGA § 36-92-2. As amended,
subsections (a) and (b) of OCGA § 33-24-51, provide as
(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.
. . .
OCGA § 33-24-51 (emphasis supplied). Correspondingly,
new Code section 36-92-2 established the degree to which
immunity was waived under the new first sentence of OCGA
§ 33-24-51 (b) for "negligent use of a covered
motor vehicle." OCGA § 36-92-2 (a). And it also
[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.
OCGA § 36-92-2 (b). Thus, as the Georgia Supreme Court
has summarized, OCGA § 33-24-51, as amended,
"create[s] a two-tier scheme within which local
governments are deemed to have waived sovereign
The first tier . . . requires local entities to waive
sovereign immunity-up to certain prescribed limits-for
incidents involving motor vehicles regardless of whether
they procure automobile liability insurance. The second
tier, enacted by OCGA § 33-24-51 (b), and as revised
[effective in 2005], provides for the waiver of sovereign
immunity to the extent a local entity ...