Zalma on Insurance
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February 22, 2022
Sovereign Immunity Limits Liability of Governmental Entity

Georgia Supreme Court Refuses to Allow Bad Injuries Make Bad Law

Justice is Blind but it is Not Stupid

Read the full article at https://www.linkedin.com/pulse/sovereign-immunity-limits-liability-governmental-zalma-esq-cfe and at https://zalma.com/blog plus more than 4100 posts.

Posted on February 22, 2022 by Barry Zalma

Dorothy Wright and her grandchildren, Cameron Costner and Layla Partridge, (collectively, the “Decedents”) were killed when their vehicle was struck by a stolen vehicle that was being chased by College Park, Georgia Police Department officers. At the time of the accident, the City of College Park had an insurance policy provided by Atlantic Specialty Insurance Company (“Atlantic”), which provided coverage for negligent acts involving the City’s motor vehicles up to $5,000,000 but also included immunity endorsements which say that Atlantic has no duty to pay damages “unless the defenses of sovereign and governmental immunity are inapplicable.” In Atlantic Specialty Insurance Company v. City Of College Park et al., No. S21G0482, Supreme Court of Georgia (February 15, 2022) the Georgia Supreme Court analyzed the policy and state statutes and refused to allow the sadness of the great loss of life to change the law of sovereign immunity.
FACTS

Joi Partridge, Floyd Costner, and Douglass Partridge (collectively, the “Plaintiffs”) filed a lawsuit against the City, raising claims of negligence and recklessness resulting in the wrongful deaths of the three Decedents, to which the City raised sovereign immunity as a defense. The Plaintiffs assert that the insurance policy limit is $5,000,000 for the three deaths, while Atlantic maintains that the policy limit is capped at $700,000 under the relevant statutory scheme and the terms of the City’s policy.

Pursuant to OCGA § 36-92-2 (a) (3), the sovereign immunity of local government entities is automatically waived up to $700,000, regardless of whether the City has a liability insurance policy. However, OCGA § 36-92-2 (d) (3) provides that “[a] local government entity [that] purchases commercial liability insurance in an amount in excess of the [statutory minimum] waiver” increases the waiver to the extent of the excess insurance.

Atlantic intervened in the case to litigate the limit of the insurance policy. The trial court ruled that the policy limit was $5,000,000, and the Court of Appeals affirmed.

At the time of the accident, the City held an insurance policy (the “Policy”) issued by Atlantic. The Policy included business auto and excess liability coverage, among other things. The limits under the Policy are $1,000,000 under the business auto section and $4,000,000 under the excess liability section. Both sections of the Policy, however, contained endorsements entitled “Georgia Changes – Protection of Immunity,” which we will refer to as the “Immunity Endorsements.” The business auto section’s Immunity Endorsement provides “We have no duty to pay damages or any ‘covered pollution cost or expense’ on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.”

The Plaintiffs filed suit against the City in the State Court of Fulton County (“trial court”), asserting claims of negligence and recklessness in connection with the wrongful deaths of the Decedents. The City answered, raising the defense of sovereign immunity.

Plaintiffs filed a motion for partial summary judgment, seeking a ruling that the relevant Policy limit is $5,000,000. They contended that, by purchasing the Policy, the City waived its sovereign immunity up to $5,000,000. The Plaintiffs also asserted that the Immunity Endorsements are void because they are contrary to public policy.

The trial court issued a summary judgment that the relevant Policy limit is $5,000,000. The court held that the Immunity Endorsements improperly attempted to “contract around” the sovereign immunity waiver “requirements” of OCGA §§ 36-92-2 and 33-24-51. Atlantic appealed. The Court of Appeals affirmed the trial court’s ruling.
DISCUSSION

The Georgia Constitution provides municipalities performing their governmental functions with immunity from civil liability, which only the General Assembly (or the Constitution itself) may waive. In OCGA § 36-33-1 (a), the General Assembly reiterated that sovereign immunity for municipalities is the State’s public policy, while also expressly providing several narrow waivers. Where there is no insurance coverage, there is no waiver of sovereign immunity. In 2005 the General Assembly established an automatic waiver of sovereign immunity for losses arising out of claims for the negligent use of covered motor vehicles up to certain prescribed limits, including $700,000 for the bodily injury or death of two or more persons in a single occurrence.

The enactment of the automatic immunity waiver in 2002 changed only the analysis with respect to a loss under the applicable automatic waiver limit, as to which the local government entity’s purchase of liability insurance is irrelevant. Because of the automatic waiver, there is no dispute in this case that the City’s sovereign immunity was waived up to $700,000. But to increase the waiver of sovereign immunity beyond $700,000, the court must determine whether the City, in its discretion, purchased commercial liability insurance in excess of $700,000 that covers the claim at issue.

Insurance policies do not normally provide blanket coverage for any and all claims. Insurance policies are contracts that specify what types of losses are covered and to what monetary limits, and the premiums paid by policyholders are normally determined by assessing the risk that the insurer assumes for the specific claims covered.

The purchase of insurance providing coverage in excess of the automatic waiver limits, thus further waiving sovereign immunity, remains a decision left to the discretion of local government entities. Under current Georgia law, it is not against public policy for local government entities to decline to purchase liability insurance or to purchase liability insurance that does not cover any and all losses resulting from the use of their motor vehicles. Thus, the Immunity Endorsements do not contravene public policy.

To determine whether the insurance contract between the City and Atlantic provides more than $700,000 of coverage for the Plaintiffs’ claims, the Immunity Endorsement to the Policy’s business auto section states in relevant part: “We have no duty to pay damages … on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.” These endorsements do not exclude claims for damages to which the defenses of sovereign and governmental immunity do not apply. The defenses of sovereign and governmental immunity are clearly not applicable to losses from the Plaintiffs’ claims up to $700,000. Under a plain reading of the endorsements, the insurance that the City purchased does not cover claims for damages to which the defenses of sovereign and governmental immunity do apply.

The Immunity Endorsements do not render the Policy’s higher- than-$700,000 limits meaningless. For example, claims involving police chases brought under 42 USC § 1983 would not be subject to sovereign immunity and thus could be covered up to the Policy’s aggregate maximum limit of $5,000,000.

These types of claims are undoubtedly less likely to occur than claims involving the general use of the City’s covered motor vehicles – but presumably the premiums paid for that additional coverage would take that factor into account.

In light of the Immunity Endorsements, the City did not purchase insurance coverage for the Plaintiffs’ asserted claims above the applicable automatic sovereign immunity waiver of $700,000. As a result the judgment was reversed and the plaintiffs recovery was limited to the statutory waiver.
ZALMA OPINION

Statutory and insurance policy interpretation requires a court to read the full statute and the entire wording of the insurance policies before making a decision and must ignore the extent of the injuries of the people suing the public entity. Georgia waived sovereign immunity up to $700,000, whether insured or not. Since the city had sovereign immunity over $700,000 the trial court and court of appeal did not have the right to change the policy wording or the statute because the injuries were so severe. Justice is blind but not stupid. Justice requires application of the words of statutes and contracts fairly and as written.

© 2022 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

Subscribe to “Zalma on Insurance” at https://zalmaoninsurance.locals.com/subscribe and “Excellence in Claims Handling” at https://barryzalma.substack.com/welcome.

You can contact Mr. Zalma at https://www.zalma.com

, https://www.claimschool.com, [email protected] and [email protected] . Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

You may find interesting the podcast “Zalma On Insurance” at https://anchor.fm/barry-zalma; you can follow Mr. Zalma on Twitter at; you should see Barry Zalma’s videos on https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg/featured; or videos on https://rumble.com/zalma. Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims–library/ The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/

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September 18, 2026
Expert May Only Testify to What Experience Supports

Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.

Posted on September 18, 2026 by Barry Zalma

See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html

In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.

The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.

Law

The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...

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September 17, 2026
Convicted on 29 Tax-Refund-Fraud Counts

150 Months in Prison for Tax Fraud
Post 4846

Posted on September 17, 2026 by Barry Zalma

See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.

FACTS

In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS

Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.

The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...

00:05:23
September 14, 2026
Court Enforces Fifth Amendment & Refuses to Compel Answers

Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution

Post 5489

Posted on September 14, 2026 by Barry Zalma

Fraudster Refuses to Answer Questions About His Alleged Fraud

See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr

In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.

Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.

After Great American ...

00:05:14
16 hours ago
Zalma’s Insurance Fraud Letter – October 1, 2026

Another Anniversary for Barry Zalma, Inc

Posted on October 1, 2026 by Barry Zalma
From October 1, 1979 – 2026

Post 4854

Read the full issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/09/ZIFL-10-01-2026.pdf Forty seven years ago today I left the world of the employed and became an entrepreneur by opening my own law firm. The law practice was incorporated shortly thereafter as Barry Zalma, Inc.

When I opened for business on October 1, 1979, I had no clients and no certainty that I would have any in the future. I had borrowed money from the bank to carry me through the first six months and was concerned about my ability to pay the loan with my third child about to be born.

Much to my surprise and pleasure, on October 1, 1979, at 8:10 a.m., the best claims handler in the London market, Alan Warboys, called from London and provided me with my first case as an independent lawyer to represent Certain Underwriters at Lloyd’s, London. He, and the Lloyd’s Underwriters he represented, showed faith in me as a lawyer and insurance expert. Alan is now, although ...

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September 30, 2026
Suing for Services Provided, and Paid for, is Fraud

Defendants Successfully Moved for Summary Judgment

Post 4854

Posted on September 30, 2026 by Barry Zalma

In Jeffrey Wayne Phillips v. Creative Website Studios, et al., No. 5:23-CV-568-BO-BM, United States District Court, E.D. North Carolina, Western Division (September 28, 2026) the Court needed to rule on the order and memorandum and recommendation (“M&R”) of the Magistrate.

Jeffrey Wayne Phillips had contracted with Creative Website Studios and SR Telecommunications for website and hosting services. He alleged that defendants repeatedly billed him for hosting periods he had already paid for and later took down his website. Phillips claimed the outage prevented him from bidding on U.S. government security contracts and sought roughly $300 million in consequential damages.
LAW

Under North Carolina law, fraud requires a false material representation or concealment, intent and effect of deception, resulting damage, and reasonable reliance. Obtaining property by false pretenses similarly requires an ...

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September 29, 2026
Court Partially Limits Evidence to Present at Trial

Accused of 17 Counts Of Fraud Attempts to Keep Out Evidence of Crimes

Post 4853

Posted on September 29, 2026 by Barry Zalma

Court Refuses to Grant Most Motions in Limine

In United States Of America v. Seth Allen Aikens, II, Criminal No. 22-119, United States District Court, W.D. Pennsylvania (September 23, 2026) Defendant Seth Allen Aikens II faces thirty federal counts. The indictment alleges that, from about June 2016 through March 2020, Aikens solicited start-up businesses seeking websites, applications, hosting, payment processing, and related services. The Government estimated aggregate losses of approximately $1.3 million involving about eight charged customers.

The Government also sought to introduce evidence involving three uncharged persons. Robert Polonsky allegedly paid about $10,000 for web development, hosting, and advertising services but did not receive the promised core deliverables. Brandon Canwright allegedly paid approximately $1,877 for a website and related services that were not delivered and received no ...

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