Opinion
S92A0268.
DECIDED APRIL 17, 1992.
Wrongful death; constitutional question. Fulton State Court. Before Judge Vaughn.
Stokes, Lazarus Carmichael, William K. Carmichael, John R. Hunt, for appellants.
Long, Weinberg, Ansley Wheeler, J. M. Hudgins IV, Brian K. Stickney, Webb, Carlock, Copeland, Semler Stair, Dennis J. Webb, Adam L. Appel, Hulsey, Oliver Mahar, James E. Mahar, Jr., for appellees.
This case involves a wrongful death action which arose from an incident that occurred in January of 1989. The complaint was filed in September of 1989 and, in June of 1991, Hall County filed a motion to dismiss the action based upon the 1991 amendment to Art. I, Sec. II, Par. IX of the Constitution of Georgia.
The trial court granted Hall County's motion to dismiss ruling that the 1991 amendment was to be applied retroactively and, therefore, Hall County was immune from civil liability despite the existence of a policy of liability insurance coverage for the county. The trial court issued a certificate of immediate review of its order dismissing the case and appellants filed an interlocutory application seeking to appeal that order. We granted the application to consider three issues.
1. The first two issues concern whether the 1991 amendment to Art. I, Sec. II, Par. IX of the Constitution of Georgia applies retroactively. Those issues are controlled by Donaldson v. Dept. of Transp., 262 Ga. 49 ( 414 S.E.2d 638) (1992) which held, in part, that the amendment at issue is not to be retroactively applied.
2. In granting the interlocutory application, we also posed an issue concerning whether the trial court erred in dismissing the entire action as to Hall County after appellants amended their complaint to allege intentional misconduct within the meaning of subsection (d) of the 1991 amendment. Appellants argued that these allegations prevented complete dismissal of the action, as to Hall County, even if the 1991 amendment was found to be retroactive. However, because the amendment is not retroactive, this enumeration is moot.
3. On appeal, appellants also included enumerations of error concerning two discovery issues. We did not grant the interlocutory application to consider those issues and they will not be addressed at this time. Appellant's rights on such issues are preserved and the issues may be raised by appellants in any future appellate review available to them.
Judgment reversed. All the Justices concur.