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Cannon v. Oconee County

Court of Appeals of Georgia, First Division

October 30, 2019

CANNON et al.
v.
OCONEE COUNTY

          BARNES, P. J., MERCIER and BROWN, JJ.

          BROWN, JUDGE

         In this wrongful death suit, Ronald and Kristy Cannon, as the surviving parents of Jessica Katherine Cannon ("the Cannons"), appeal from the trial court's order granting summary judgment in favor of Oconee County ("the County"). In addition to contending that the trial court erred by concluding that the County was not the proper party defendant, the Cannons contend in the alternative that the trial court erred in denying their motion to substitute Oconee County Sheriff Scott Berry, in his official capacity, as a party defendant and in denying their motion for sanctions based upon the County's failure to identify Sheriff Berry in a discovery response. For the reasons explained below, we affirm the trial court's grant of summary judgment to the County, but reverse its denial of the Cannons' motion to substitute Sheriff Berry, in his official capacity, as a party defendant.

         Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 S.E.2d 564) (2003). So viewed, the record shows that on September 14, 2015, Jessica Cannon died when the car in which she was a passenger struck a tractor-trailer and burst into flames during a high-speed police chase involving an Oconee County deputy sheriff. On December 15, 2015, the Cannons sent an ante litem notice to Oconee County, the Oconee County Sheriff's Office, and the Oconee County Board of Commissioners in connection with their claim for the wrongful death of their daughter. On January 17, 2017, the Cannons filed a wrongful death suit against Oconee County. In their complaint, they asserted that "[t]he County is liable for Deputy Sanders' acts and omissions under the doctrine of respondeat superior," and the County denied this allegation in its answer. The County admitted that the deputy "was acting in the course and scope of his employment as a deputy sheriff with the Oconee County Sheriff's Office." Nowhere in its answer to the complaint did the County assert that it could not be held liable because it was not the deputy's employer - nor did it raise any improper party defense.

         In an interrogatory served with their complaint, the Cannons asked the County to "[s]tate the name, current address, and telephone number of any potential party to this lawsuit not already a party." In a response to this query provided before the expiration of the statute of limitation, the County stated:

Defendant objects to Interrogatory No. 5 on the grounds that it is vague, ambiguous, and calls for legal conclusion; subject to this objection, and without waiving same, Defendant believes that the owner of the vehicle driven by the fleeing suspect during this incident is a potential party to this lawsuit.

         While the County chose to identify the owner of the vehicle as a potential party in response to this interrogatory, it did not identify Sheriff Berry as a potential party. In addition to this discovery response, the County provided detailed answers to questions about the written policies and procedures of the Oconee County Sheriff's Office, the insurance policy covering the patrol car involved in the accident, [1] the reprimand of another deputy in connection with emergency or pursuit driving, and produced numerous documents obtained from the Oconee County Sheriff's Office.

         On June 1, 2017, before the expiration of discovery, the Cannons' attorney wrote to the County's attorney in a good faith effort to resolve a dispute regarding the County's response to discovery. The letter closed with a request for the County to "[p]lease provide a verification for the Interrogatory responses." The County did not provide a verification until long after the statute of limitation expired, and this verification stated that the

Oconee County Administrator, being first duly sworn on oath, deposes and verifies that he has read the foregoing Answers to Plaintiff's First Interrogatories and they are true and correct to the best of his knowledge, information, and belief based upon information provided by the Oconee County Sheriff's Office.

         On August 25, 2017, less than 30 days before the expiration of the statute of limitation, the parties filed a joint request for an extension of discovery to complete "depositions of several police officers and the Plaintiffs" scheduled in mid-September. The trial court granted the motion, and the record shows that the County's attorney arranged for the deposition of various deputies employed by the Oconee County Sheriff's Office that took place on September 14, 2017. On July 16, 2018, the County designated Sheriff Scott Berry as its representative for a 30 (b) (6) deposition. Finally, the record shows that the attorney representing the County in this action also represents the Oconee County Sheriff's Office. In a letter written in response to a request for documents under the Open Records Act, [2] OCGA § 50-18-70 et seq., Sheriff Berry acknowledged that the County's attorney "represents Oconee County in [the Cannon lawsuit] and . . . also provides legal representation and advice to the Oconee County Sheriff's Office."

         On August 17, 2018, almost a year after the expiration of the statute of limitation, the County moved for summary judgment on the ground that it could not be held liable for the acts of the deputy under the theory of respondeat superior because the Oconee County Sheriff's Office, not the County, employed the deputy. In addition to opposing the County's motion on the merits, the Cannons filed a motion for sanctions under OCGA § 9-11-37 (d) to preclude the County from raising an improper party defense and a motion to substitute Oconee County Sheriff Scott Berry, in his official capacity, for the County in the event the Court determined that the County was not a proper defendant. The trial court granted the County's motion for summary judgment and denied the Cannons' motion for sanctions and motion to substitute Sheriff Berry as a defendant. The trial court denied the Cannons' motion to substitute based upon its conclusory finding that "Sheriff Berry would be prejudiced in maintaining defenses on the merits of the case and defending the case on its merits under these circumstances," its belief that "[a]s a matter of law, there could be no mistake concerning the identity of Sheriff Berry since Plaintiffs were fully aware of his existence and equally fully aware that the Oconee County Sheriff's Office was the employer of [the deputy]," and its finding that there was "no evidence that Sheriff Berry had or should have had knowledge that Plaintiffs[] made any mistake whatsoever."

         1. The Cannons contend that the trial court erred in concluding that the County was entitled to summary judgment on the ground that the County cannot be held vicariously liable for the actions of a sheriff's deputy. We disagree. It is well established that "deputy sheriffs are employees of the sheriff, not the county, and the county cannot be held vicariously liable as their principal." Lowe v. Jones County, 231 Ga.App. 372, 373 (2) (499 S.E.2d 348) (1998).

         The Cannons' argument that they should nonetheless be entitled to sue the County based upon the waiver of sovereign immunity for motor vehicle claims found in OCGA § 36-92-1 et seq. has no merit based upon this Court's interpretation of that statutory scheme in Davis v. Morrison, 344 Ga.App. 527 (810 S.E.2d 649) (2018).[3] OCGA § 36-92-2 (a) provides for the waiver of "[t]he sovereign immunity of local government entities for the negligent use of a covered motor vehicle" up to various limits depending upon the date of the incident. OCGA § 36-92-3 (b) mandates:

A person bringing an action against a local government entity under the provisions of this chapter shall name as a party defendant the local government entity for which the officer or employee was acting and shall not name the local government officer or employee individually. In the event that the local government officer or employee is individually named for an act which the local government entity is liable under this chapter, the local government ...

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