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McElmurray v. Augusta-Richmond County7/11/2005
he defendants, but on the contrary that the entry was by his express consent; and for this reason, if for none other, no case is made for application . . . of . . . the provision found in art. 1, sec. 3, par. 1, of the Georgia constitution . . ., which declares that "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being paid first."
The rule announced in Roberts was followed in Bray. In Shealy, we did recognize that an inverse condemnation action may be brought against a county for contamination to property caused by the escape of toxic or hazardous substances from a landfill if the contamination amounted to the taking of property without just compensation. But in Shealy, unlike the present case, the property owners had not consented to the defendant's release of the substances onto their property. Where, as here, the property owners have consented to the government action, a suit for inverse condemnation does not provide them with a remedy. The court did not err in dismissing that count of the McElmurrays' complaint.
2. The McElmurrays contend that the trial court erred in dismissing their tort claims on the ground of sovereign immunity. We agree.
(a) Under a local Act of the General Assembly, the consolidated government of Augusta-Richmond County is to be treated as a county for tort liability purposes. Both our Supreme Court and this court have recognized the validity of legislative enactments such as this. A county is not liable to suit for any cause of action unless made so by statute. As enacted in 1983, Article I, Section II, Paragraph IX of the Georgia Constitution waived sovereign immunity in actions for the recovery of damages against the state or any of its departments and agencies to the extent that liability insurance was provided. Toombs County v. O'Neal held that, for purposes of the above-cited constitutional provision, a county was included within the definition of "the state and any of its departments and agencies." But in 1991 this constitutional provision was amended to delete the "insurance waiver" clause and provide instead that the "General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act." In Gilbert v. Richardson, our Supreme Court held that sovereign immunity extends to counties under the 1991 constitutional amendment. But the Court in Gilbert also rejected the argument that under the 1991 amendment, the Tort Claims Act is the only means by which the legislature is authorized to waive immunity. Considering the 1991 amendment as a whole, the Court in Gilbert held that "sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver."
OCGA § 33-24-51 (a) authorizes a municipal corporation, a county, or any other political subdivision of this state to secure insurance to cover liability for damages "arising by reason of ownership, maintenance, operation, or use of any motor vehicle." It follows that OCGA § 33-24-51 (b) is a statute under which the General Assembly has expressly provided for a waiver of governmental immunity of local governmental entities to the extent of liability insurance purchased for tort claims arising out of the alleged negligent use of a motor vehicle.
Consequently, the trial court erred in holding, in reliance on Donaldson, Bontwell, and Lamaine, that this action is barred by sovereign immunity because it was not filed until after the effective date of the 1991 constitutional amendment. Donaldson was a negligence action filed against the Department of Transportation. Bontwell and Lamaine were wrongful death actions against th
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