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City of Albany v. Dougherty County

Court of Appeals of Georgia, Fourth Division

October 29, 2019

CITY OF ALBANY
v.
DOUGHERTY COUNTY.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          COOMER, JUDGE

         As a threshold matter, this interlocutory appeal asks us to determine whether sovereign immunity bars Dougherty County's (the "County") cross-claim for indemnification against the City of Albany (the "City") arising out of an automobile accident involving a county-owned vehicle that was driven by an employee of the City. If this Court were to find that sovereign immunity is not a bar to the County's cross-claim against the City, we must then determine whether genuine fact issues exist as to the validity and applicability of the indemnification provision of an intergovernmental service agreement between the parties, and whether said provision requires the City to indemnify the County for the alleged negligence of a City employee who was acting pursuant to said agreement. On appeal, the City contends the trial court erred by denying its motion to dismiss[1] a cross-claim for contractual indemnification filed by the County on the basis of sovereign immunity. The City further contends the trial court erred by concluding that genuine issues of material fact exist as to the validity of the indemnification provision of the intergovernmental service agreement between the parties. Lastly, the City contends the trial court erred in its factual findings regarding the employment status of a dismissed third party. For the reasons outlined in this opinion, we affirm.

         On appeal, we review the trial court's summary judgment ruling de novo and "construe the evidence and all reasonable inferences therefrom in the light most favorable to [the County] as the nonmovant." Hindmon v. Virgil's Food Mart, Inc., 252 Ga.App. 732, 732 (556 S.E.2d 135) (2001) (citation omitted). Summary judgment is appropriate only if no genuine issues of material fact remain concerning the County's claim. See id. at 732-733. So viewed, the record shows the City and County entered into an Intergovernmental Agreement ("IGA") on June 25, 2014, pursuant to the Service Delivery Strategy Act, OCGA § 36-70-20 et seq. As relevant to this appeal, the IGA was intended "to formalize their agreement for the City to furnish Code Enforcement Services within the confines of the unincorporated area of [the County.]"

         The terms of the IGA provided in pertinent part:

The City shall use and employ one (1) individual who will be 100% dedicated to provide code enforcement services within the unincorporated area of [the County] in the same manner as provided to persons and properties within [the City]. County will not be liable for any acts or omissions of such individual. Each year, the County will budget and pay the actual expenses of the 100% dedicated City employee for the salary, benefits, supplies, uniforms, cell phone, computer, tablet with data service, code enforcement software, vehicle, fuel, maintenance of said vehicle, travel, training, etc. The County shall pay this on a monthly basis as invoiced by the City.
County agrees to be solely responsible for providing vehicle (as well as all expenses incurred in operation and maintenance of the vehicle); office furniture (including cell phone, supplies, etc.). In the alternative, County may request City to provide all or some of these expenses, County to promptly reimburse City for such expenses.

(Emphasis supplied).

         On April 18, 2017, Daryl Driskell (the "Plaintiff") filed suit against the County, the City, and Melinda Gray, seeking damages for injuries he sustained in a July 2015 automobile collision when his vehicle was struck from behind by a County-owned vehicle driven by Gray. At the time of the accident, Gray, a Code Enforcement Officer, was employed by the City, but operating a vehicle owned and maintained by the County. The City and Gray filed a joint motion to dismiss. The County filed an answer to the Plaintiff's complaint in which it also filed a cross-claim seeking contractual indemnification against the City based on the terms of the IGA between the City and County. The City then moved to dismiss the County's cross-claim for contractual indemnification based on its assertion of sovereign immunity.

         Following a hearing, the trial court granted Gray's motion to dismiss without prejudice after the Plaintiff's counsel conceded that Gray was not subject to a suit for damages stemming from the motor vehicle accident based on statutory immunity. See OCGA § 36-92-3 (a) ("Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor."). The trial court found from the evidence presented that Gray was acting in her capacity as an employee of the City at the time of the accident, and that the City, therefore, should be substituted as the proper party defendant. See OCGA § 36-92-3 (b) ("In the event that the local government officer or employee is individually named for an act for which the local government entity is liable under this chapter, the local government entity for which the local government officer or employee was acting shall be substituted as the party defendant.").

         The trial court also found that the ante-litem notice served on the City did not meet the requirements of OCGA § 36-33-5 (e) because the notice failed to include the specific amount of monetary damages being demanded against the City in the suit. As such, the trial court granted the City's motion to dismiss with prejudice the Plaintiff's claims against it, concluding that the Plaintiff's claims against the City were time-barred due to his failure to give timely and proper ante-litem notice.

         The trial court then converted the City's motion to dismiss the County's cross-claim for contractual indemnification against it to a motion for summary judgment because the City had introduced evidence, including portions of deposition transcripts and a copy of the IGA. The trial court, in turn, denied the City's motion for summary judgment, finding that a genuine issue of material fact remained as to whether a viable indemnification clause exists within the IGA such that the City could be found liable over the County should the Plaintiff obtain a judgment against the County. The trial court concluded, without citation to legal authority, that "the Doctrine of Sovereign Immunity applies to tort claims against the City but does not apply to contractual claims." Moreover, although the City relied on case law holding that a municipality is not authorized to enter into an indemnification agreement with a private third party, thereby waiving its sovereign immunity, the trial court highlighted that the instant case concerned the provisions of the IGA between two governmental entities. The trial court also noted that the County is not seeking indemnification from the City for the County's own negligence. Rather, the County is seeking indemnification for the alleged negligence of a City employee who was performing services in the County pursuant to the terms of the IGA. Therefore, the trial court concluded that "the exculpatory language in favor of the County does not violate public policy[.]" The trial court certified its order for immediate review and this Court granted the City's application for interlocutory appeal.

         1. Sovereign Immunity.

         "The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit." Watts v. City of Dillard, 294 Ga.App. 861, 862 (1) (670 S.E.2d 442) (2008) (punctuation omitted). A waiver of sovereign immunity requires a specific Act of the Georgia Assembly that provides for the waiver and its extent. Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 S.E.2d 894) (2009). "Sovereign immunity is a threshold issue." Watson v.Ga. Dept. of Corrections, 285 Ga.App. 143, 144 (1) (645 S.E.2d 629) (2007) (punctuation omitted). "A motion to dismiss asserting sovereign immunity is based upon the trial court's lack of subject matter jurisdiction, rather than the merits of the plaintiff's claim." Ambati v. Bd. of Regents of Univ. Sys. of Ga., 313 Ga.App. 282, 282 n.3 (721 S.E.2d 148) (2011) (citations omitted). Sovereign immunity is not an affirmative defense, and the party seeking to establish that it has been ...


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