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State v. International Indemnity Co.

Court of Appeals of Georgia, Fifth Division

October 31, 2017

STATE OF GEORGIA et al.
v.
INTERNATIONAL INDEMNITY COMPANY et al. REGULATORY TECHNOLOGIES, INC.
v.
STATE OF GEORGIA.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         This is the second appearance of these related cases in this court. The appeals arise from a trial court order finding, among other things, that the state had waived sovereign immunity under certain provisions of the Insurers Rehabilitation and Liquidation Act, OCGA §§ 33-37-1 et seq. (the "Act"). In the first appeal, we held, in part, that the trial court had erred in finding a waiver of sovereign immunity under that act. State of Ga. v. Sun States Ins. Group, 332 Ga.App. 197, 199-202 (1) (770 S.E.2d 43) (2015). The Georgia Supreme Court vacated that opinion on jurisdictional grounds, finding that the appellants had failed to comply with the interlocutory appeal procedures. State of Ga. v. Sun States Ins. Group, 299 Ga. 489 (788 S.E.2d 346) (2016). On remand, the trial court vacated its prior order, re-entered the same order, and issued a certificate of immediate review. We granted applications for interlocutory review, and these appeals followed. As in our first decision, we again hold that the trial court erred in finding a waiver of sovereign immunity.

         1. Facts and procedural posture.

         This court's opinion in the first appeal set forth the following statement of facts and procedural posture.

Pursuant to the Act, in January 2001 the Commissioner of Insurance of the State of Georgia, then John W. Oxendine, was appointed by the superior court as the liquidator of [International Indemnity Company ("IIC")]. The liquidator then appointed a deputy liquidator (Donald Roof) and an assistant deputy liquidator (Harry Sivley) to act for him in the liquidation of the IIC estate. Sivley was the co-founding principal and chief executive officer of [Regulatory Technologies, Inc. ("Reg Tech")], ... [which] assisted in the liquidation of IIC.
After the liquidation of IIC was concluded, in March 2008 the State of Georgia on the relation of the liquidator (hereinafter "state/liquidator") sought an order from the trial court approving the final accounting of the assets and expenses of the liquidated estate and discharging the liquidator, deputy liquidator and assistant deputy liquidator. Sun States [Insurance Group, Inc.], the sole shareholder of IIC, objected to the application for discharge, to the extent of any other distributions to Sivley or Reg Tech or their affiliates. Sun States complained about, inter alia, administrative expenses charged to the IIC estate, and asked the court to appoint an independent auditor to review the change and allocation of administrative costs by Reg Tech and its affiliates and contractors to the IIC Estate.
The court appointed an auditor, and almost sixteen months later (in February 2010), the auditor submitted a report to the court. The state/liquidator filed a modified accounting and application for discharge, incorporating some, but not all, of the credits (in the amount of $210, 260.24) [which] the auditor opined were due the IIC estate. In response, the trial court ordered the liquidator to provide certain explanations and additional data to the auditor, and ordered the auditor to supplement his report if he deemed it necessary based on the additional information. In February 2012, as ordered, the state/liquidator supplemented its modified accounting and application and provided additional information to the auditor, and further agreed that additional credits should be made to the IIC estate (in the amount of $433, 569.71). But the state/liquidator continued to refute allegations that the IIC estate had been charged excessive administrative expenses in the form of contract compensation, payroll, or overhead expenses for Reg Tech. The state/liquidator asserted that Reg Tech and/or Sivley had drawn funds directly from the IIC estate during the liquidation process to cover the costs of administration expenses, and that it had been done with little or no oversight from the liquidator. The auditor's supplemental report, however, continued to raise issues as to these administrative expenses (payroll expenses, overhead expenses and contractual compensation expenses).
In August 2012, a joint pretrial order was entered. Therein, Sun States stated that it sought an order surcharging the liquidator, deputy liquidator, assistant deputy liquidator, and Reg Tech for excessive overhead expenses, over-allocation of contractual compensation, and excessive salary and benefits to Reg Tech personnel -matters identified in the audit. Sun States also sought attorney fees. The state/liquidator then moved to join Reg Tech as an indispensable party to the litigation; the trial court granted the motion, designating Reg Tech as a respondent to the pending objection by shareholder Sun States to the Liquidator's Modified Accounting. Approximately nine months later (in June 2013), the state/liquidator moved to dismiss Sun States's claims against it, asserting that they were claims for a money judgment against the state [that] were barred by the doctrine of sovereign immunity.
The trial court ruled that the State of Georgia, through the Act, had waived sovereign immunity to the extent that the court could order the liquidator to repay, or in other words to put back into, the liquidation estate any administrative expenses that were excessive or had been improperly removed from the IIC estate. The trial court also ruled that it had the authority to award attorney fees to Sun States (and thus, would permit evidence on the issue of attorney fees at trial).

State of Ga., 332 Ga.App. at 197-199 (punctuation and footnotes omitted).

         The State of Georgia[1] and Reg Tech filed direct appeals from the trial court's denial of the state's motion to dismiss on the basis of sovereign immunity, and this court affirmed in part and reversed in part the judgment of the trial court. See State of Ga., 332 Ga.App. at 197. However, on certiorari review, the Supreme Court of Georgia found that direct appeals from the denial of a motion to dismiss based on governmental immunity were not permitted and that we therefore should have dismissed the direct appeals before us for failure of the appellants' to follow the interlocutory appeal procedures. State of Ga., 299 Ga. at 490.

         On remand to the trial court, the state moved the trial court to vacate its original order denying the motion to dismiss, and then to reinstate the same order and issue a certificate of immediate review. Reg Tech joined in the state's motion. The trial court granted the motion and vacated the earlier order, reinstated it, and granted a certificate of immediate review. After this court granted applications for interlocutory review, these appeals followed. The state appeals in Case No. A17A1195 and Reg Tech appeals in Case No. A17A1196.

         Case ...


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