Local government vehicle liability waivers in Georgia

Covered vehicles, entities, employees and losses under O.C.G.A. 36-92-1

Local government vehicle liability waivers in Georgia use the definitions in O.C.G.A. 36-92-1, which apply "As used in this chapter," and the official code hierarchy places that section in Chapter 92 of Title 36. Section 36-92-1(1) defines a claim as "any demand against a local government entity for money for a loss" caused by negligence of an officer or employee of the entity using a covered motor vehicle while carrying out his or her official duties or employment. Under Section 36-92-1(1), the negligence behind a claim may be that of a truck driver who is a local government officer or employee, if the driver was using a covered motor vehicle while carrying out official duties or employment.^[1]

Section 36-92-1(2) defines a covered motor vehicle as any motor vehicle "owned by the local government entity" and any motor vehicle "leased or rented by the local government entity." Section 36-92-1(6) names trucks among motor vehicles, along with trailers and semitrailers. A truck crash involves a covered motor vehicle when the truck meets that definition and the entity owns it or has leased or rented it. Under Section 36-92-1(2)(B), truck drivers employed by the entity may be operating a covered motor vehicle that the entity leased or rented rather than owned.^[1]

Section 36-92-1(6) defines motor vehicle to include an automobile, bus, motorcycle, truck, trailer, or semitrailer, with its equipment and other equipment permanently attached. Under Section 36-92-1(6), the definition reaches such a vehicle when it is "designed or licensed for use on the public streets" of the state, and the same paragraph also names the public roads and highways of the state. Section 36-92-1(7) defines an occurrence as "an accident involving a covered motor vehicle," so a truck accident counts as an occurrence when a covered motor vehicle is involved.^[1]

The definition of local government entity in Section 36-92-1(3) excludes a local school system. Section 36-92-1(4)(A) names an officer, agent, servant, attorney, or employee of a local government entity as a local government officer or employee. Section 36-92-1(4)(B) adds "A sheriff, deputy sheriff, or other agent, servant, or employee of a sheriff's office." A truck driver employed by a sheriff's office is covered by paragraph (4)(B) as an "employee of a sheriff's office." According to the notes on the official code page, the 2019 amendment, effective July 1, 2019, rewrote paragraph (4). The prior text reproduced in those notes named an officer, agent, servant, attorney, or employee of a local government entity and did not mention a sheriff's office.^[1]

Section 36-92-1(5) defines loss to include "personal injury, disease, death, damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death." The same paragraph adds pain and suffering, mental anguish, loss of consortium, and any other element of actual damages recoverable in actions for negligence. For truck crashes, these elements describe the loss for which Section 36-92-2(a) waives immunity when the claim concerns a covered motor vehicle used negligently.^[1][3]

Waiver limits by incident date under O.C.G.A. 36-92-2(a)

Section 36-92-2(a) ties each set of waiver limits to the date of the incident. Under paragraph (1), for incidents on or after January 1, 2005, and until December 31, 2006, the waiver reaches $100,000.00 for bodily injury or death of one person, an aggregate of $300,000.00 for two or more persons, and $50,000.00 for injury to or destruction of property, each in any one occurrence. Under paragraph (2), for incidents on or after January 1, 2007, and until December 31, 2007, the figures are $250,000.00 per person, a $450,000.00 aggregate for two or more persons, and $50,000.00 for property, each in any one occurrence. Under paragraph (3), for incidents on or after January 1, 2008, the figures are $500,000.00 per person, a $700,000.00 aggregate for two or more persons, and $50,000.00 for property, each in any one occurrence. When a truck crash involves a covered motor vehicle and the claim is for its negligent use, Section 36-92-2(a) states each of these limits "in any one occurrence." The date of a truck accident thus determines which paragraph of Section 36-92-2(a) supplies the limits, when the claim concerns a covered motor vehicle used negligently. For truck crashes in which two or more persons suffer bodily injury or death in any one occurrence, each paragraph of Section 36-92-2(a) states an aggregate amount for that category.^[3]

Under Section 36-92-2(b), the waiver for a truck accident claim extends only to the extent and in the manner Chapter 92 provides, and only to actions brought in Georgia's courts. Beyond confining the waiver to the extent and manner the chapter provides and to actions brought in the courts of this state, Section 36-92-2(b) adds that Chapter 92 "shall not be construed to affect any claim or cause of action otherwise permitted by law and for which the defense of sovereign immunity is not available." Section 36-92-2(c) states that local government entities "shall have no liability for losses resulting from conduct on any part of local government officers or employees which was not within the scope of their official duties or employment." Under that subsection, conduct of a truck driver employed by a local government entity that was outside the scope of official duties or employment produces no liability for the entity. Court decisions decide how this scope standard applies to particular facts, and this entry does not cover those decisions.^[3]

Increased waivers through resolutions, risk pools and insurance

Section 36-92-2(d) provides that the waiver "shall be increased to the extent that" a condition listed in its paragraphs is met. Under paragraph (1), the governing body of the local government entity by resolution or ordinance voluntarily adopts a higher waiver. Under paragraph (2), the entity becomes a member of an interlocal risk management agency created pursuant to Chapter 85 of Title 36, and the increase applies to the extent that the coverage obtained exceeds the waiver amount in Section 36-92-2. Under paragraph (3), the entity purchases commercial liability insurance in an amount in excess of the waiver set forth in Section 36-92-2. Local government vehicle liability waivers in Georgia can therefore exceed the figures in Section 36-92-2(a) when a condition in Section 36-92-2(d) is met. In a truck crash claim against the entity, the amount of immunity waived thus depends on the Section 36-92-2(a) figures for the incident date together with any increase under Section 36-92-2(d).^[3]

O.C.G.A. 33-24-51, which the official code hierarchy places in Article 1 of Chapter 24 of Title 33 on insurance, authorizes "A municipal corporation, a county, or any other political subdivision of this state" in its discretion to secure and provide insurance covering liability for bodily injury or death, or damage to property, arising by reason of ownership, maintenance, operation, or use of any motor vehicle "under its management, control, or supervision, whether in a governmental undertaking or not." Under Section 33-24-51(a) and (e), that government may pay premiums for the coverage, and the premiums are paid from its general funds. Under Section 33-24-51(a), liability arising from truck accidents may be insured when it arises by reason of the ownership, maintenance, operation, or use of a motor vehicle described in that subsection.^[2]

Section 33-24-51(b) states that the sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle "is waived as provided in Code Section 36-92-2." When the government purchases the insurance authorized by subsection (a) to provide liability coverage for the negligence of a duly authorized officer, agent, servant, attorney, or employee, including a truck driver it employs, in the performance of official duties, in an amount greater than the immunity waived under Section 36-92-2, its governmental immunity is waived to the extent of the amount of insurance so purchased. Neither the government nor the insuring company may plead governmental immunity as a defense, and either "may make only those defenses which could be made if the insured were a private person." In a truck accident where the government holds such insurance in excess of the Section 36-92-2 waiver, neither the government nor the insuring company may plead governmental immunity.^[2][3]

In a truck accident involving a motor vehicle insured under Section 33-24-51(a), subsection (c) makes the government liable for damages in excess of the amount of immunity waived under Section 36-92-2 which are sustained only while the insurance is in force, and only to the extent of the limits or the coverage of the insurance policy. Under Section 33-24-51(d), if a jury verdict exceeds the limits of the applicable insurance, the court reduces the judgment or award to a sum equal to the applicable policy limits, but not less than the amount of immunity waived under Section 36-92-2. When a truck crash verdict is reduced under Section 33-24-51(d), the reduced sum equals the applicable policy limits but is not less than the amount of immunity waived under Section 36-92-2.^[2][3]

Employee immunity, naming the defendant and bar to further recovery

Section 36-92-3(a) provides that a 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 cannot be sued or held liable for that tort. A truck driver employed by a local government entity who commits such a tort in the performance of official duties is protected in the same way. The subsection also states that nothing in Chapter 92 gives the officer or employee immunity from suit and liability "if it is proved that the local government officer's or employee's conduct was not within the performance of his or her official duties." Local government officers or employees who are truck drivers do not receive that protection if it is proved that their conduct was not within the performance of their official duties.^[4]

Under Section 36-92-3(b), a person bringing an action against a local government entity under Chapter 92 names as the party defendant the entity for which the officer or employee was acting, and does not name the officer or employee individually. If the officer or employee is individually named for an act for which the entity is liable under Chapter 92, the entity for which that person was acting is substituted as the party defendant. In a truck crash suit, the substitution in Section 36-92-3(b) takes place when the individually named officer or employee was acting for the entity and the entity is liable for the act under Chapter 92. Under Section 36-92-3(c), when a plaintiff presenting evidence at the trial of a case brought under the chapter's waiver provisions calls as a witness the present or former officer or employee whose alleged tort forms the basis of the claim, such as a truck driver operating a covered motor vehicle, the plaintiff "shall be allowed to subject such witness to cross-examination."^[4]

Subject to the provisions contained in Code Sections 51-1-32 through 51-1-34, Section 36-92-3(d) makes a settlement or judgment in an action, or a settlement on a claim, brought pursuant to Chapter 92 a complete bar to any further action by the claimant against a local government officer or employee or the local government entity by reason of the same occurrence. The bar in Section 36-92-3(d) reaches further actions arising from the same occurrence, such as one truck crash involving a covered motor vehicle, and it remains subject to Code Sections 51-1-32 through 51-1-34. Section 36-92-3(d) treats a settlement on a truck accident claim brought pursuant to Chapter 92 like a judgment for purposes of that bar, subject to Sections 51-1-32 through 51-1-34.^[4]

Prejudgment interest and the workers' compensation exclusive remedy

Section 36-92-2(e) provides that interest prior to judgment may be recovered pursuant to the "Unliquidated Damages Interest Act" in Code Section 51-12-14, but any such recovery of interest is included within the applicable aggregate amount per occurrence set in Section 36-92-2. In a truck crash claim under Chapter 92, prejudgment interest recovered under Section 51-12-14 counts toward that aggregate amount per occurrence.^[3][5]

Under Section 51-12-14(a) and (b), a claimant is entitled to interest on the amount demanded if the claimant gives the person against whom the claim is made written notice, by registered or certified mail or statutory overnight delivery, of a demand for an amount of unliquidated damages in a tort action, the notice specifies that it is being given pursuant to that Code section, the person fails to pay that amount within 30 days from the mailing or delivering of the notice, and upon trial the judgment is for an amount not less than the amount demanded. Those conditions also govern a written demand made on a local government entity after a truck accident involving a covered motor vehicle. Under Section 51-12-14(a), the 30 days for payment of a truck crash demand run from the mailing or delivering of the notice.^[5][3]

Section 51-12-14(a) also provides that if, at any time after those 30 days and before the claimant has withdrawn the demand, the person against whom the claim is made gives written notice by registered or certified mail or statutory overnight delivery of an offer to pay the amount of the demand plus interest through the date of that notice, and the claimant does not accept the offer within 30 days from its mailing or delivering, the claimant is not entitled to interest on the demand after the thirtieth day following the date the offer notice is mailed or delivered, even if the judgment is not less than the sum demanded. Under Section 51-12-14(b), that offer notice also specifies that it is being given pursuant to Section 51-12-14. In a truck accident case, an offer that meets those conditions and is not accepted within 30 days from its mailing or delivering stops interest on the demand after the thirtieth day following the offer notice.^[5]

Section 51-12-14(c) sets the interest at an annual rate equal to the prime rate published by the Board of Governors of the Federal Reserve System in statistical release H. 15, or a publication that supersedes it, on the thirtieth day following the mailing of the last written notice, plus 3 percent. The interest runs from the thirtieth day following the mailing or delivering of the written notice until the date of judgment, and subsection (c) states: "This subsection shall apply to all civil actions filed on or after July 1, 2003." Under Section 51-12-14(d), "Evidence or discussion of interest on liquidated damages, as well as evidence of the offer, shall not be submitted to the jury." Interest is made part of the judgment upon evidence satisfying the court that Section 51-12-14 was complied with and that the jury verdict, or the award by a judge trying the case without a jury, equals or exceeds the amount claimed in the notice. Prejudgment interest in a truck crash case under Chapter 92 runs at that rate until the date of judgment and stays within the aggregate amount per occurrence set in Section 36-92-2.^[5][3]

Section 36-92-3(e) states that Chapter 92 "shall not waive the workers' compensation exclusive remedy when local government officers or employees are injured on the job." The exclusive remedy referred to in Section 36-92-3(e) is not waived by Chapter 92 when a truck driver who is a local government officer or employee is injured on the job.^[4]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)