DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 298, supra. Accord McLemore v. City Council of Augusta, 212 Ga. App. 862 (2c), 864 ( 443 S.E.2d 505). Consequently, the trial court erred insofar as it reasoned that under "the applicable and controlling law," sovereign or governmental immunity was waived as to a deductible amount, for which no liability insurance coverage is provided.
City of Thomaston v. Bridges, 264 Ga. 4, 7, n. 7 ( 439 SE2d 906) (1994).McLemore v. City Council of Augusta, 212 Ga. App. 862, 863 (2) (a) ( 443 SE2d 505) (1994).Ekarika v. City of East Point, 204 Ga. App. 731, 732-733 ( 420 SE2d 391) (1992).
Under the facts presented in this case, a jury issue remains as to what Deputy Nichols was doing at the time he collided with Prather. See Outlaw v. Nasworthy, 250 Ga. App. at 364 (1) (finding that a jury issue existed regarding the police officer's actions at the time he arrested the plaintiff); McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) ( 443 SE2d 505) (1994) (finding that a jury issue existed regarding the officer's actions that led to the collision). Once the factual issues are resolved, the trial court can then determine whether Deputy Nichols is entitled to official immunity.
The alleged decision not to interfere with the arrests at issue called for such consideration. See Ferguson v. City of Doraville, 186 Ga. App. 430, 432 ( 367 S.E.2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119 (3) ( 376 S.E.2d 861) (1989); see McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) ( 443 S.E.2d 505) (1994) (responses to emergencies are discretionary in official immunity analysis); see Joyce v. Van Arsdale, 196 Ga. App. 95, 96 ( 395 S.E.2d 275) (1990) (distinguishing between ministerial and discretionary acts in official immunity analysis). Because Huff and Rhoden failed to satisfy their burden of establishing that the Department of Public Safety waived its sovereign immunity, we affirm the trial court.
We have held that an officer responding to an emergency when a collision with an uninvolved third party occurred was performing a discretionary act, while the conduct is ministerial if the officer was returning to routine patrol at the time of the collision. McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) ( 443 S.E.2d 505) (1994). The record shows that Barnes decided to pursue the car after learning it had eluded two Bibb County officers and determining the car could have been stolen.
Rhoden v. Dept. of Public Safety, 221 Ga. App. 844, 845 (1) ( 473 S.E.2d 537) (1996).McLemore v. City Council of Augusta, 212 Ga. App. 862, 864 (2) ( 443 S.E.2d 505) (1994). To determine whether these exceptions protect the Board's sovereign immunity, we focus upon the conduct which actually produced Jordan's "losses," his severe emotional distress and loss of reputation.
We have previously held that a police officer's acts, while on routine patrol, are ministerial in nature. McLemore v. City Council of Augusta, 212 Ga. App. 862, 865 (4) ( 443 S.E.2d 505) (1994). However, the Supreme Court has held that when an officer responds to an emergency call, the officer's acts are discretionary. Logue, supra at 207-208 (1). Officer Gonzalez was on routine patrol on the evening of January 18, 1994 when he received a "Code 2 — Urgent — Proceed as soon as possible" call. Because the call removed Gonzalez from his routine patrol, his acts in response to the call were discretionary. Johnson's argument that this was a "Code 2 — Urgent" call, rather than a "Code 3 — Emergency" call does not affect the change in the character of his actions from ministerial to discretionary.
See Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1. In McLemore v. City Council of Augusta, 212 Ga. App. 862, 863 (2) (b) ( 443 S.E.2d 505) (1994), we held that OCGA § 33-24-51 was not limited to automobile liability policies and that the general liability policy in that case was a policy "within the meaning of OCGA § 33-24-51." Therefore, as in Gilbert and McLemore, Polk County "has waived its sovereign immunity to the extent of its liability coverage," Gilbert, supra at 752, as coextensive with the scope of the statute.
In response, Plaintiff cites four cases in support of his contention that Georgia courts are unanimous in holding that, notwithstanding the language of O.C.G.A. § 36-33-3, a municipality's purchase of liability insurance acts as a waiver of sovereign immunity, such that the municipality can be held liable for the torts of its police officer agents under general tort principles of respondeat superior and/or vicarious liability. See Jordan v. City of Rome, 417 S.E.2d 730 (Ga. Ct. App. 1992); Ekarika v. City of East Point, 420 S.E.2d 391 (Ga. Ct. App. 1992); Williams v. Solomon, 531 S.E.2d 734 (Ga. Ct. App. 2000); McLemore v. City Council of Augusta, 443 S.E.2d 505 (Ga. Ct. App. 1994). However, each of these cases arises out of an employee's negligent use of a motor vehicle and addresses a city's waiver of sovereign immunity under O.C.G.A. § 33-24-51(b).
A general liability policy, for example, was construed to provide coverage (and thus waive liability) for motor-vehicle-based occurrences. See McLemore v. City Council of Augusta, 212 Ga. App. 862, 863 (1994) (Although termed a "general liability policy," the court held that the policy's language was sufficient to encompass claims arising from automobile collisions; "It is the nature of the insurance coverage provided by a policy rather than title of the policy which determines if it is a policy within the meaning of O.C.G.A. § 33-24-51"). Note that "[s]overeign immunity is not an affirmative defense that must be established by the party seeking its protection.