BOYD et al.
GEORGIA DEPT. OF COMMUNITYHEALTH et al.
P. J., MCMILLIAN and COOMER, JJ.
Neal,  a DeKalb County school system employee who
enrolled in the State Health Benefits Plan for the calendar
year 2014, initially filed this putative class action against
the Georgia Department of Community Health (the
"Department") for breach of contract and breach of
the covenant of good faith and fair dealing after the
Department changed the benefits that she had elected and for
which she had agreed to pay premiums. Neal subsequently
amended the complaint to assert a petition for writ of
mandamus against the Board of Community Health (the
"Board") membersto require them to perform what Neal
alleges was their official duty to conduct an actuarial
analysis and recalculate premiums before changing the plan
benefits. These related appeals arise from the trial
court's order granting summary judgment to the Department
on sovereign immunity grounds (Case No. A19A0369) and denying
the Board's motion to dismiss Neal's alternative
claim for a writ of mandamus (Case No.
A19A0227). For the reasons that follow, we affirm the
trial court's order granting summary judgment in favor of
the Department but reverse its denial of the Board's
motion to dismiss.
statute, the Board is authorized to establish a health
insurance plan for state employees, public school teachers,
and public school employees; this plan is called the State
Health Benefits Plan ("SHBP" or the
"Plan"). See OCGA §§ 45-18-2; 20-2- 881;
20-2-911, respectively. During the open enrollment period in
2013, the Department offered Plan members three coverage
options for the 2014 calendar year: Gold, Silver, and Bronze.
In exchange for higher premiums, Gold and Silver members
would receive more money for their Health Reimbursement
Accounts, lower deductibles, lower co-insurance rates, and
lower out-of-pocket maximums than Bronze members.
registered online for Gold coverage. By doing so, Neal
accepted the Plan's "terms and conditions,"
including her "responsibility to review any applicable
Plan documents." The Plan documents included an
"Active Decision Guide," a welcome letter from the
Commissioner of the Department, and a "Summary Plan
Description," which governed the terms of coverage. The
Active Decision Guide stated: "The material in this
booklet is for information purposes only and is not a
contract. It is intended only to highlight the principal
benefits of the SHBP plan options." The same page also
clarified that "[a]vailability of SHBP options may
change based on federal or state law changes or as approved
by the Board . . ." and that "[p]remiums for SHBP
options are established by the DCH Board and may be changed
at any time by the Board resolutions subject to advance
notice." Also, the 2013 Board resolution establishing
the premium rates for 2014 included a notice that:
The Board of Community Health sets all member premiums by
resolution and in accordance with the law and applicable
revenue and expense projections. Any subsidy policy adopted
by the Board may be changed at any time by Board resolution,
and does not constitute a contract or promise of any amount
the Department faced financial shortfalls in the Plan, it
eliminated the three tiers of co-insurance for most health
care services and established a single tier of co-payments, a
change made on January 27, 2014 and retroactive to January 1,
2014. Following this change, Gold and Silver Plan members
were required to continue paying higher premiums despite the
fact that they no longer had the benefit of better
co-insurance rates as compared to the Bronze Plan.
2014, Neal filed suit against the Department, seeking class
certification on behalf of Gold and Silver Plan members for
breach of contract and breach of the implied covenant of good
faith and fair dealing. The Department moved to dismiss,
arguing that Neal was unable to prove a waiver of its
sovereign immunity by written contract. Neal then amended her
complaint to attach the Active Decision Guide and Summary
Plan Description. The Department again filed a motion to
dismiss on sovereign immunity grounds, which the trial court
appeal, this Court reversed the trial court's order,
holding that even "[r]ead as a whole, the documents at
issue here do not show that the parties entered into a
signed, written contract." Ga. Dept. of Community
Health v. Neal, 334 Ga.App. 851, 855 (1) (780 S.E.2d
475) (2015) ("Neal I"). We further found
that the relevant statutes and regulations governing the Plan
did not create a contract between Neal and the Department and
Neal was, therefore, unable to prove a waiver of sovereign
immunity. Id. at 856 (2). Following its grant of
Neal's petition for writ of certiorari, our Supreme Court
vacated this Court's opinion and remanded the case for us
to reconsider our conclusion that we had jurisdiction over
the Department's direct appeal in light of the Supreme
Court's intervening holding in Rivera v.
Washington, 298 Ga. 770 (784 S.E.2d 775) (2016). After
concluding on remand that we lacked jurisdiction to hear the
Department's direct appeal under the collateral order
doctrine, we dismissed the appeal. Ga. Dept. of Community
Health v. Neal, 340 Ga.App. 94 (796 S.E.2d 482) (2017).
the case was remitted back to the trial court, the Department
filed a motion to set aside the prior order and enter a new
order granting its motion to dismiss. Neal opposed the motion
and filed an amended complaint, adding an alternative claim
for mandamus against the individual members of the Board. The
Department then filed a motion for partial summary judgment
related to the breach of contract claims, and the Board filed
a motion to dismiss the petition for mandamus. Following a
hearing, the trial court granted the Department's motion
on sovereign immunity grounds, but denied the Board's
motion to dismiss. This appeal followed.
her first two enumerations of error, Neal asserts that the
trial court erred in finding that neither the Plan documents
nor the implementing statutes constitute a written contract
with the State sufficient to waive sovereign immunity.
start our analysis by examining the doctrine of sovereign
immunity as it relates to contract actions. Generally, the
Georgia Constitution provides broad sovereign immunity for
Except as specifically provided in this Paragraph, sovereign
immunity extends to the state and all of its departments and
agencies. The sovereign immunity of the state and its
departments and agencies can only be waived by an Act of the
General Assembly which specifically provides that sovereign
immunity is thereby waived and the extent of such waiver.
Const. of 1983, Art. I, Sec. II, Par. IX (e). But sovereign
immunity is waived in limited circumstances, and
specifically, for contract actions, sovereign immunity is
waived: "as to any action ex contractu for the breach of
any written contract now existing or hereafter entered into
by the state or its departments and agencies." Ga.
Const. Art. I, § II, ¶ IX (c). See also OCGA §
50-21-1 (a) ("The defense of sovereign immunity is
waived as to any action ex contractu for the breach of any
written contract . . . entered into by the state, department
and agencies of the state, and state authorities.").
Supreme Court has recently explained the relationship between
common law rules of contract and what constitutes a written
contract sufficient to waive sovereign immunity:
General rules of contract law that might otherwise support a
claim for breach of contract damages between private parties
. . . will not support a claim against the state or one of
its agencies if the contract is not in ...