STATE OF GEORGIA et al.
INTERNATIONAL INDEMNITY CO. et al. REGULATORY TECHNOLOGIES, INC.
STATE OF GEORGIA et al.
NAHMIAS, Presiding Justice.
granted writs of certiorari in these cases involving the
liquidation of an insurance company to review the Court of
Appeals' decision in State of Georgia v.
International Indemnity Company, 343 Ga.App. 647 (809
S.E.2d 64) (2017) (Intl. Indem. Co.). The
dispositive issue presented is whether the official immunity
provision in OCGA § 33-37-8.1 applies to claims for a
"surcharge" and attorney fees against the State
Insurance Commissioner and two other state employees, all in
their official capacities as the liquidator and his deputies,
and against a private company involved in the liquidation. As
explained below, because the Court of Appeals incorrectly
concluded that § 33-37-8.1 may be applicable to these
parties, we reverse the part of the Court of Appeals'
judgment allowing the claims to proceed against the state
officer and employees in their official capacities, but we
affirm the part of the judgment allowing the case to proceed
against the private company.
liquidation proceeding underlying these cases began nearly
two decades ago. In January 2001, the Commissioner of
Insurance of the State of Georgia, who was then John W.
Oxendine, was appointed by the trial court to act as the
liquidator of International Indemnity Company, following the
procedures set forth in the Insurers Rehabilitation and
Liquidation Act, OCGA § 33-37-1 et seq. (Liquidation
Act). The liquidator appointed a deputy and an
assistant deputy liquidator, Donald Roof and Harry Sivley,
and Regulatory Technologies, Inc. (Reg Tech) was retained to
assist in the liquidation. In March 2008, the State ex rel.
(on the relation of) the Insurance Commissioner applied for
an order from the trial court approving the final accounting
of the liquidation estate and discharging the liquidator. Sun
States Insurance Group, Inc., the sole shareholder of
International Indemnity, objected to the application for
discharge, contending that the estate was owed more money and
asking the court to appoint an independent auditor to review
the allocation of administrative costs by Reg Tech and its
affiliates and contractors. An auditor was appointed and
ultimately reported that hundreds of thousands of dollars
were owed to the International Indemnity estate.
August 2012, a joint pretrial order was entered in which Sun
States said that it sought an order "surcharging"
the liquidator, deputy liquidator, assistant deputy
liquidator, and Reg Tech for charging the estate excessive
expenses, along with attorney fees. The State moved to join
Reg Tech as an indispensable party to the litigation, and the
trial court granted the motion, designating Reg Tech as a
respondent to Sun States' pending objection to discharge.
The State then moved to dismiss Sun States' claims
against it, asserting that they were claims for a money
judgment against the State (the liquidator, deputy
liquidator, and assistant deputy liquidator) that were barred
by sovereign immunity and by official immunity under both the
Liquidation Act, see OCGA § 33-37-8.1 (b), and the
Georgia Tort Claims Act, see OCGA § 50-21-20 et
Reg Tech joined in the motion, arguing in part that because
Reg Tech worked under the direction of the State, it is
entitled to the same statutory immunities as the
October 2013, the trial court ruled that the State had waived
sovereign immunity through the Liquidation Act to the extent
that the court could order the liquidator to repay to the
liquidation estate any administrative expenses that were
excessive or had been improperly removed and could order the
liquidator to pay attorney fees. The court explained that
although the term "surcharge" is not found in the
Liquidation Act, it "is a concept found in fiduciary
law" that imposes liability on a fiduciary for willful
or negligent misconduct in the administration of his duties.
The trial court also ruled that the official immunity granted
by OCGA § 33-37-8.1 (b) to "the receiver and his or
her employees" might not apply to court-imposed
surcharges, but even if it does, Sun States could introduce
evidence showing "intentional or willful and wanton
misconduct," which would eliminate any official immunity
under § 33-37-8.1 (b).
State and Reg Tech immediately appealed from the trial
court's denial of their motion to dismiss, and the Court
of Appeals affirmed in part and reversed in part. See
State of Ga. v. Sun States Ins. Group, Inc., 332
Ga.App. 197 (770 S.E.2d 43) (2015) (Sun States I).
All three parties then petitioned for certiorari, and this
Court granted all three petitions. Rather than addressing the
merits of the sovereign and official immunity arguments,
however, we vacated the Court of Appeals' opinion,
holding that because the denial of a motion to dismiss based
on governmental immunity was not a final judgment or
otherwise immediately appealable under OCGA § 5-6-34
(a), the Court of Appeals should have dismissed the appeals
due to the appellants' failure to follow the
interlocutory appeal procedures in § 5-6-34 (b). See
State of Ga. v. Sun States Ins. Group, Inc., 299 Ga.
489, 489-490 (788 S.E.2d 346) (2016).
the cases were returned to the trial court, the court vacated
its original order denying the motion to dismiss, reentered a
similar order with an additional footnote expressly declining
to reconsider its sovereign immunity holding in light of the
(vacated) Court of Appeals' opinion, and issued a
certificate of immediate review. The Court of Appeals then
granted the State's and Reg Tech's applications for
Division 2 of its opinion on the appeals now properly before
it, the Court of Appeals reversed the trial court's
holding that the Liquidation Act waived sovereign immunity.
See Intl. Indem. Co., 343 Ga.App. at 650-653. The
Court of Appeals explained that the language of the Act
neither provides for a specific waiver of sovereign immunity
nor describes the extent of such a waiver, nor could a waiver
be implied from the provisions in the Act that the trial
court had cited. See id. at 652-653.
Division 3, the Court of Appeals affirmed the trial
court's holding that even if OCGA § 33-37-8.1 (b)
granted official immunity to the liquidator and his deputies,
"'evidence could be introduced to show that
intentional or willful or wanton conduct of the liquidator or
his deputies permitted the payment of excessive or improper
administrative expenses of the [International Indemnity]
estate.'" Intl. Indem. Co., 343 Ga.App. at
653 (quoting Sun States I, 332 Ga App. at 203). The
Court of Appeals therefore affirmed the trial court's
ruling that it would "'consider further evidence in
connection with the applicability of OCGA § 33-37-8.1
(b) to this matter, '" and remanded the State's
case to the trial court "'for consideration of Sun
States' objections related [to the discharge] and . . .
the relief Sun States seeks in accordance with OCGA §
33-37-8.1 (b).'" Intl. Indem. Co.,
343 Ga.App. at 654 (quoting Sun States I, 332
Ga.App. at 203).
in Division 4, the Court of Appeals dispensed with Reg
Tech's arguments as follows:
Reg Tech states that it joins in the appeal of the state and
raises the same issues, arguing that the trial court erred in
finding a waiver of sovereign immunity and in finding that
the official immunity of OCGA § 33-37-8.1 (b) does not
apply to this case. As we have addressed those arguments
above in [the State's appeal], we need not address them
again in this case.
Id. The Court of Appeals thus affirmed in part and
reversed in part the trial court's order as to Reg Tech
as well as the State, and remanded the cases for further
State and Reg Tech each petitioned for certiorari, arguing
that while the Court of Appeals correctly held that sovereign
immunity was not waived by the Liquidation Act, the court
erred in remanding for consideration of their misconduct
under OCGA § 33-37-8.1 (b) rather than concluding that
sovereign immunity bars all of Sun States' claims. We
granted both petitions.
begin by noting that sovereign immunity is no longer at issue
in these cases as they come to this Court. The Court of
Appeals held that the Liquidation Act does not waive
sovereign immunity, and Sun States did not file a petition
for certiorari to challenge that holding. The only question
properly before us is whether the Court of Appeals was
correct in concluding that the trial court should further
consider the application of official ...