Ethridge v. Price , 194 Ga. App. 82 ( 1989 )

Per curiam.

Hattie Eileen Price was severely and permanently injured in an automobile collision on May 10, 1983. She filed suit against numerous defendants including the Georgia Department of Transportation (DOT) on May 9, 1985, but subsequently amended the complaint to show her mother as plaintiff acting as next friend due to her incapacity from brain damage. Price moved to add as defendants Wyndald C. Ethridge, Earl L. Tyre and W. Wilson Mims, who were all retired DOT employees, alleging that their negligence in designing, constructing and maintaining the road on which the collision occurred contributed to her injuries and damages. DOT filed a motion for summary judgment, which was granted by the trial court on grounds of sovereign immunity, and this court affirmed on appeal. Price v. Dept. of Transp., 182 Ga. App. 353 (356 SE2d 45) (1987).

On grant of certiorari the Supreme Court reversed, holding that insurance protection had been provided for the claims raised in the suit; and that the issue of sovereign immunity had been decided adversely to DOT in Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) and was binding on the facts presented. Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987). However, on motion for reconsideration the Supreme Court ordered the trial court upon remand to rule on Price’s motion to add the named employees as defendants, stating that “[i]f they, or any of them, are made defendants there is a waiver of sovereign immunity as to the DOT as stated in the opinion. Since a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT.” Id. at 537-538.

Upon return of the case to the trial court, the motion to add Ethridge, Tyre and Mims as party defendants was granted and they were served with copies of the amended complaint in February of 1988, this being their first notice of the 1983 collision. After some discovery a summary judgment motion was filed by all three employees, and was granted in favor of Mims but denied to Ethridge and Tyre. This court granted the applications for interlocutory review of Ethridge and Tyre in A89A1195 and of Price in A89A1260, and has consolidated the appeals. For other appeals previously entertained in this case, see Price v. Wright Contracting Co., 183 Ga. App. 595 (359 SE2d 406) (1987); Price v. Reeves Constr. Co., 181 Ga. App. 241 (351 SE2d 655) (1986).

1. In Case No. A89A1195 Price alleged that Ethridge in his capacity as State Road Design Engineer was negligent in not designing, or having those who worked under him design, the road project location on which she was injured with more extensive guardrails, a median barrier between the opposing lanes and a more moderate slope in the fill sections of the roadway so as to prevent vehicles from plunging down a steep embankment. She further alleged that Tyre as DOT District Engineer had the authority to extend the guardrail system on the bridge approach where the collision occurred and negligently failed to do so. Ethridge retired from DOT in 1978, and Tyre retired in 1979. Both men assert that during the entirety of their DOT service the law of Georgia protected them in the exercise of their judgment by official immunity. See, e.g., Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982); Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980); Roberts v. Barwick, 187 Ga. 691 (2) (1 SE2d 713) (1939); Truelove v. Wilson, 159 Ga. App. 906 (4) (285 SE2d 556) (1981). Although the purchase of liability insurance was authorized effective July 1, 1975, to insure state employees, including Ethridge and Tyre, they argue that because the 1983 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution made no mention of official immunity as opposed to sovereign immunity, insurance coverage was not construed to be a waiver of official immunity until the 1987 decision was rendered in Martin v. Dept, of Public Safety, supra, which should not have been applied retroactively to them.

We do not agree that this has been retroactively applied here. The constitutional provision proclaims that “the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments or agencies for which liability insurance protection for such claims has been provided. . . .” (Emphasis supplied.) It seems apparent that the operation of the waiver occurs at the time the action arises, not at the time the allegedly negligent act was committed. As stated in Price v. Dept, of Transp., supra at 536, the “waiver of sovereign immunity [is] not for the claim, but for the action.” Since Price was injured on May 10, 1983, after the amendment became effective on January 1, 1983, the waiver is applicable here. See Wilmoth v. Henry County, 251 Ga. 643 (2) (309 SE2d 126) (1983) and Holloway v. Rogers, 181 Ga. App. 11 (1) (351 SE2d 240) (1986), where both appellate courts considered only if the cause of action arose prior to the effective date of the waiver, not when the defendants’ alleged negligence occurred. See also Hunter v. Johnson, 259 Ga. 21 (3) (376 SE2d 371) (1989).

2. Either for the reason stated in the special concurrence of Judge Sognier or for the reason stated in the special concurrence of Judge Benham, summary judgment should have been granted to Ethridge and Tyre. Accordingly, we reverse the trial court’s denial of summary judgment to these defendants.

3. In Case No. A89A1260 Price has appealed the trial court’s grant of summary judgment to the defendant Wilson W. Mims. Review of the depositions and affidavits submitted in this regard reveals that Mims as DOT’s area resident engineer had administrative supervision over all construction jobs in this four-county area, and supervisory responsibility for all road maintenance in the same area. His construction responsibilities consisted of seeing that the contractors were properly paid and the DOT personnel effectively allocated among the construction projects. Thus his duties did not include the actual design or construction of the roadway project. Moreover, he was never involved with maintenance of the roadway because it was not opened to traffic until April 1, 1981, subsequent to his retirement on November 1, 1978, and no maintenance was performed until after the road was opened. Accordingly, insofar as Mims is concerned, this is one of those rare instances when issues of negligence, contributory negligence and proximate cause are for the court rather than a jury to decide and, in the absence of any evidence showing negligence on the part of Mims, we agree with the trial court that he has satisfied his evidentiary burden so as to support an award of summary judgment. Edwards v. Trammell, 187 Ga. App. 22, 24 (369 SE2d 288) (1988), and cases cited therein. Accordingly, we affirm the trial court’s grant of summary judgment to Mims.

Judgment affirmed in Case No. A8A1260. Judgment reversed in Case No. A89A1195.

Carley, C. J., Deen, P. J., Birdsong, Sognier, Benham and Beasley, JJ., concur specially. McMurray, P. J., Banke, P. J., and Pope, J., concur specially in part and dissent in part.