“Individual government employees are shielded by official immunity from damages suits unless the plaintiff can establish that the official negligently performed a ministerial act or performed a discretionary act with malice or an intent to injure.” Glass v. Gates, 311 Ga.App. 563, 574, 716 S.E.2d 611, 621 (2011), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012) (citing Grammens v. Dollar, 287 Ga. 618, 619, 697 S.E.2d 775 (2010))
The second tier, enacted by OCGA § 33–24–51 (b), and as revised [effective in 2005], provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36–92–2. Gates v. Glass , 291 Ga. 350, 352–353, 729 S.E.2d 361 (2012) (emphasis supplied). The first sentence in OCGA § 33–24–51 (b) and OCGA § 36–92–2 indicate that the first-tier waiver of immunity does not apply to "ownership, maintenance, [or] operation" of a motor vehicle, the terms found in subsection (a) of OCGA § 33–24–51.
OCGA § 36-92-2 (d) (3). In Gates v. Glass , 291 Ga. 350, 352-353, 729 S.E.2d 361 (2012), our Supreme Court gave the following explanation of the statutory scheme with regards to waiver of sovereign immunity under this Code section: For incidents which occur on or after January 1, 2008, such as the one in the present case, an aggregate amount of $700,000 is the limit for bodily injury or death of two or more persons in any one occurrence.
And statutes providing for a waiver of sovereign immunity are in derogation of the common law and are strictly construed against a finding of waiver. Gish v. Thomas, 302 Ga. App. 854, 860 (2) (691 SE2d 900) (2010). Had the legislature intended to allow a waiver to be increased simply by virtue of the existence of a County's self-insurance or Funds created by a County to pay liability claims, it could have done so explicitly. See, e. g., Gates v. Glass, 291 Ga. 350, 353 (729 SE2d 361) (2012) ("If the legislature intended to do otherwise, i.e., to apply a narrow definition of 'motor vehicle' to situations in which local governments purchased automobile liability insurance coverage for amounts over and above the prescribed sovereign immunity limits, 'it would have done so explicitly.'"[Cit.])
Individual government employees are shielded by official immunity from damages suits unless the plaintiff can establish that the official negligently performed a ministerial act or performed a discretionary act with malice or an intent to injure.SeeGrammens v. Dollar , 287 Ga. 618, 697 S.E.2d 775, 777 (2010) ; Glass v. Gates , 311 Ga.App. 563, 716 S.E.2d 611, 621 (2011), cert. granted (Jan. 23, 2012), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012). The Court thus first considers the nature of the alleged acts performed, and then, depending on the resolution of this first inquiry, the Court determines whether the allegations support negligence, if the acts are ministerial in nature, or actual malice, if the acts are discretionary.a. Ministerial v. Discretionary Tasks
Individual government employees are shielded by official immunity from damages suits unless the plaintiff can establish that the official negligently performed a ministerial act or performed a discretionary act with malice or an intent to injure. See Grammens v. Dollar, 287 Ga. 618, 697 S.E.2d 775, 777 (2010) ; Glass v. Gates, 311 Ga.App. 563, 716 S.E.2d 611, 621 (2011), cert. granted (Jan. 23, 2012), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012). 1. Discretionary v. Ministerial Duty
Atlantic Specialty Ins. Co. v. City of College Park, 313 Ga. 294, 299 (2) (869 S.E.2d 492) (2022). In 2002 (although not effective until 2005), the General Assembly amended OCGA § 33-24-51 and added OCGA § 36-92-2 to create what we described as a "two-tier" system establishing waivers of sovereign immunity by a local government for losses arising out of claims for the negligent use of covered motor vehicles. Gates v. Glass, 91 Ga. 350, 352-353 (729 S.E.2d 361) (2012). Under that system, a local government automatically waives sovereign immunity for such losses up to certain prescribed limits and also waives sovereign immunity for such losses in excess of the prescribed limits to the extent it purchased liability insurance for losses in excess of those limits.
The second tier, enacted by OCGA § 33-24-51 (b), and as revised in 2002, provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.Gates v. Glass , 291 Ga. 350, 352-353, 729 S.E.2d 361 (2012) (footnote omitted). While the first tier set out new and mandatory waiver limits, the second tier still requires coverage analysis like the pre-2002 version did to determine whether the insurance that the local government entity purchased actually covers the claim at issue.
Thus, there is express statutory provision for the waiver of sovereign immunity by a local governmental entity to the extent that it purchases liability insurance in an amount in excess of the limits set forth in OCGA § 36–92–2. Gates v. Glass, 291 Ga. 350, 352–353, 729 S.E.2d 361 (2012). And, the statute makes plain that the governmental entity, in this case Evans County, is to be treated as a private person for defensive purposes in an action such as this.
Accordingly, we exercise our discretion to vacate the portion of the trial court's order addressing the "creditor" issue and remand for the court to apply the correct legal analysis in determining whether summary judgment is appropriate on Crowe's GAFLA claims. See Wanna v. Navicent Health , 357 Ga. App. 140, 158 (6), 850 S.E.2d 191 (2020) (vacating portion of trial court's summary judgment order and remanding for consideration under the proper legal analysis); Glass v. Gates , 311 Ga. App. 563, 573-574 (1), 716 S.E.2d 611 (2011) (concluding that because the trial court applied the wrong statutory definition of "motor vehicle" and the issues had not been fully briefed by the parties on appeal, the trial court's grant of summary judgment should be vacated and the case remanded for the court to apply the proper definition in determining whether summary judgment was proper), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012). See also City of Gainesville v. Dodd , 275 Ga. 834, 838-839, 573 S.E.2d 369 (2002) (holding that under certain circumstances, "judicial economy may be maximized by returning the case to the trial court upon the appellate court's discovery that the trial court relied on an erroneous legal theory or reasoning," and that the decision whether to pursue such a course "must be left to the appellate court's discretion").