| HB 1076 - Georgia Tort Claims Act; make applicable to local governments |
First Reader Summary
A BILL to amend Article 2 of Chapter 21 of Title 50 of the
Official Code of Georgia Annotated, "The Georgia Tort Claims
Act," so as to revise it extensively in order to make it
applicable to local governments; to revise the statement of
legislative intent; to revise definitions; to provide new
definitions; to provide for a limited waiver of sovereign
immunity for counties, municipalities, school districts, other
units of local government, hospital authorities, and other local
authorities; and for other purposes.
| House |
Action |
Senate |
| 3/24/99 |
Read 1st Time |
|
| 1/10/00 |
Read 2nd Time |
|
HB 1076 LC 22 3689ER
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Article 2 of Chapter 21 of Title 50 of the Official
1- 2 Code of Georgia Annotated, "The Georgia Tort Claims Act," so
1- 3 as to revise it extensively in order to make it applicable
1- 4 to local governments; to revise the statement of legislative
1- 5 intent; to revise definitions; to provide new definitions;
1- 6 to provide for a limited waiver of sovereign immunity for
1- 7 counties, municipalities, school districts, other units of
1- 8 local government, hospital authorities, housing authorities,
1- 9 and other local authorities; to provide that such local
1-10 political subdivisions and authorities shall have no
1-11 liability for losses resulting from acts or omissions of
1-12 public officers or employees in certain circumstances; to
1-13 provide for other exceptions to liability; to provide that
1-14 exceptions to liability do not apply to the operation of a
1-15 motor vehicle by a public officer or employee; to provide
1-16 that the workers' compensation exclusive remedy is not
1-17 waived; to provide for immunity of public officers and
1-18 employees for torts committed while acting within the scope
1-19 of official duties or employment; to provide for
1-20 substituting the state or local government entity for the
1-21 official or employee as party defendant in certain
1-22 circumstances; to provide for naming an office or officer to
1-23 receive notices of claims; to provide for procedures for
1-24 delivery and contents of such notices; to provide that such
1-25 a notice of claim and denial of such claim are prerequisites
1-26 for commencing actions and jurisdiction; to provide for
1-27 attachments and exhibits to the complaint; to provide for
1-28 investigation and subpoenas; to provide for retroactive
1-29 application to certain claims; to provide for application of
1-30 statutes of ultimate repose and abrogation and provisions
1-31 relating to tolling of limitations; to provide for venue; to
1-32 provide for jury trials and to limit the recovery of
1-33 plaintiffs; to provide for the effect of the signature of a
1-34 party to a pleading, motion, or other paper; to provide for
1-35 insurance for state government entities; to provide for a
1-36 reserve fund for the payment of judgments and claims against
1-37 the state to be designated as the State Government Tort
-1-
2- 1 Claims Trust Fund; to provide for premiums for state
2- 2 government entities; to authorize the merger of existing
2- 3 programs with the State Government Tort Claims Trust Fund;
2- 4 to provide for programs of risk management or insurance
2- 5 sufficient to cover the liability of local governments; to
2- 6 provide for rules and regulations; to prohibit payment of
2- 7 claims or judgments except from the trust fund or policies
2- 8 of insurance or indemnity; to prohibit any execution or levy
2- 9 against state or local government property or funds; to
2-10 provide for prompt payment of judgments; to limit the fiscal
2-11 year aggregate liability of the state and of local
2-12 government entities; to provide for service of process upon
2-13 the chief executive officer of the state government entity,
2-14 the director of the Risk Management Division of the
2-15 Department of Administrative Services, and the Attorney
2-16 General; to provide authority for settlement of claims; to
2-17 provide for the effect of indemnification and hold harmless
2-18 agreements; to amend Chapter 33 of Title 36 of the Official
2-19 Code of Georgia Annotated, relating to the liability of
2-20 municipal corporations for acts or omissions, by striking
2-21 Code Section 36-33-5, relating to the prerequisite written
2-22 demand for certain claims, the time for presenting the
2-23 claim, and the suspension of the running of the statute of
2-24 limitations while the demand is pending before the governing
2-25 authority; to provide for related matters; to repeal
2-26 conflicting laws; and for other purposes.
2-27 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
2-28 SECTION 1.
2-29 Article 2 of Chapter 21 of Title 50 of the Official Code of
2-30 Georgia Annotated, "The Georgia Tort Claims Act," is amended
2-31 by striking Code Section 50-21-21, relating to legislative
2-32 intent, and inserting in its place the following:
2-33 "50-21-21.
2-34 (a) The General Assembly recognizes the inherently unfair
2-35 and inequitable results which occur in the strict
2-36 application of the traditional doctrine of sovereign
2-37 immunity. On the other hand, the General Assembly
2-38 recognizes that, while private entrepreneurs voluntarily
2-39 choose the ambit of their activity and can thereby exert
2-40 some control over their exposure to liability, the state
2-41 government does not have the same flexibility. In acting
2-42 for the public good and in responding to public need, the
2-43 state government must provide a broad range of services
-2-
3- 1 and perform a broad range of functions throughout the
3- 2 entire state, regardless of how much exposure to liability
3- 3 may be involved. The exposure of the state treasury
3- 4 Georgia's public treasuries to tort liability must
3- 5 therefore be limited. State government The state should
3- 6 not have the duty to do everything that might be done.
3- 7 Consequently, it is declared to be the public policy of
3- 8 this state Georgia that the state shall only be liable in
3- 9 tort actions within the limitations of this article and in
3-10 accordance with the fair and uniform principles
3-11 established in this article.
3-12 (b) The General Assembly also recognizes that the proper
3-13 functioning of the state government requires that state
3-14 public officers and employees be free to act and to make
3-15 decisions, in good faith, without fear of thereby exposing
3-16 themselves to lawsuits and without fear of the loss of
3-17 their personal assets. Consequently, it is declared to be
3-18 the public policy of this state Georgia that state public
3-19 officers and employees shall not be subject to lawsuit or
3-20 liability arising from the performance or nonperformance
3-21 of their official duties or functions.
3-22 (c) All of the provisions of this article should be
3-23 construed with a view to carry out this expression of the
3-24 intent of the General Assembly."
3-25 SECTION 2.
3-26 Said article is further amended by striking Code Section
3-27 50-21-22, relating to definitions, and inserting in lieu
3-28 thereof the following:
3-29 "50-21-22.
3-30 As used in this article, the term:
3-31 (1) 'Claim' means any demand against the State of
3-32 Georgia state for money only on account of loss caused
3-33 by the tort of any state public officer or employee
3-34 committed while acting within the scope of his or her
3-35 official duties or employment.
3-36 (2) 'Discretionary function or duty' means a function or
3-37 duty requiring a state public officer or employee to
3-38 exercise his or her policy judgment in choosing among
3-39 alternate courses of action based upon a consideration
3-40 of social, political, or economic factors.
-3-
4- 1 (2.1) 'Local government entity' or 'local government'
4- 2 means counties, municipalities, school districts, other
4- 3 units of local government, hospital authorities, housing
4- 4 authorities, and other local authorities. These terms
4- 5 do not include a state office, agency, authority,
4- 6 department, commission, board, division,
4- 7 instrumentality, or institution.
4- 8 (3) 'Loss' means personal injury; disease; death; damage
4- 9 to tangible property, including lost wages and economic
4-10 loss to the person who suffered the injury, disease, or
4-11 death; pain and suffering; mental anguish; and any other
4-12 element of actual damages recoverable in actions for
4-13 negligence.
4-14 (3.1) 'Occurrence' means an accident, including
4-15 continuous or repeated exposure to substantially the
4-16 same general harmful conditions.
4-17 (3.2) 'Operation of a vehicle' means owning, leasing,
4-18 driving, maintaining, possessing, or exercising physical
4-19 control of a motor vehicle or any of its contents or
4-20 attachments.
4-21 (4) 'Person' means a natural person, corporation, firm,
4-22 partnership, association, or other such entity.
4-23 (7)(4.1) 'State Public officer or employee' means an
4-24 officer or employee of the state, elected or appointed
4-25 officials, law enforcement officers, and persons acting
4-26 on behalf or in service of the state in any official
4-27 capacity, whether with or without compensation, but the
4-28 term does not include an independent contractor doing
4-29 business with the state. The term state public officer
4-30 or employee also includes any natural person who is a
4-31 member of a board, commission, committee, task force, or
4-32 similar body established to perform specific tasks or
4-33 advisory functions, with or without compensation, for
4-34 the state or a state government entity, and any natural
4-35 person who is a volunteer participating as a volunteer,
4-36 with or without compensation, in a structured volunteer
4-37 program organized, controlled, and directed by a state
4-38 government entity by the state for the purposes of
4-39 carrying out the functions of the state entity. An
4-40 employee shall also include foster parents and foster
4-41 children. The term shall not include a corporation,
4-42 whether for profit or not for profit, or any private
-4-
5- 1 firm, business proprietorship, company, trust,
5- 2 partnership, association, or other such private entity.
5- 3 (5) 'State' means the State of Georgia and any of its
5- 4 offices, agencies, authorities, departments,
5- 5 commissions, boards, divisions, instrumentalities, and
5- 6 institutions, but does not include counties,
5- 7 municipalities, school districts, other units of local
5- 8 government, hospital authorities, or housing
5- 9 authorities, and other local authorities.
5-10 (6) 'State government entity' or 'state government'
5-11 means a state office, agency, authority, department,
5-12 commission, board, division, instrumentality, or
5-13 institution. These terms do not include counties,
5-14 municipalities, school districts, other units of local
5-15 government, hospital authorities, housing authorities,
5-16 and other local authorities."
5-17 SECTION 3.
5-18 Said article is further amended by striking Code Section
5-19 51-21-23, relating to a limited waiver of sovereign
5-20 immunity, and inserting in lieu thereof the following:
5-21 "50-21-23.
5-22 (a) The state waives its sovereign immunity for the torts
5-23 of state public officers and employees while acting within
5-24 the scope of their official duties or employment and shall
5-25 be liable for such torts in the same manner as a private
5-26 individual or entity would be liable under like
5-27 circumstances; provided, however, that the state's
5-28 sovereign immunity is waived subject to all exceptions and
5-29 limitations set forth in this article. The state shall
5-30 have no liability for losses resulting from conduct on the
5-31 part of state public officers or employees which was not
5-32 within the scope of their official duties or employment.
5-33 (b) The state waives its sovereign immunity only to the
5-34 extent and in the manner provided in this article and only
5-35 with respect to actions brought in the courts of the State
5-36 of Georgia. The state does not waive any immunity with
5-37 respect to actions brought in the courts of the United
5-38 States."
-5-
6- 1 SECTION 4.
6- 2 Said article is further amended by striking Code Section
6- 3 50-21-24, relating to exceptions to state liability, and
6- 4 inserting in lieu thereof the following:
6- 5 "50-21-24.
6- 6 (a) The state shall have no liability for losses resulting
6- 7 from:
6- 8 (1) An act or omission by a state public officer or
6- 9 employee exercising due care in the execution of a
6-10 statute, regulation, rule, or ordinance, whether or not
6-11 such statute, regulation, rule, or ordinance is valid;
6-12 (2) The exercise or performance of or the failure to
6-13 exercise or perform a discretionary function or duty on
6-14 the part of a state public officer or employee, whether
6-15 or not the discretion involved is abused;
6-16 (3) The assessment or collection of any tax or the
6-17 detention of any goods or merchandise by any law
6-18 enforcement officer;
6-19 (4) Legislative, judicial, quasi-judicial, or
6-20 prosecutorial action or inaction;
6-21 (5) Administrative action or inaction of a legislative,
6-22 quasi-legislative, judicial, or quasi-judicial nature;
6-23 (6) Civil disturbance, riot, insurrection, or rebellion
6-24 or the failure to provide, or the method of providing,
6-25 law enforcement, police, or fire protection;
6-26 (7) Assault, battery, false imprisonment, false arrest,
6-27 malicious prosecution, abuse of process, libel, slander,
6-28 or interference with contractual rights;
6-29 (8) Inspection powers or functions, including failure to
6-30 make an inspection or making an inadequate or negligent
6-31 inspection of any property other than property owned by
6-32 the state to determine whether the property complies
6-33 with or violates any law, regulation, code, or ordinance
6-34 or contains a hazard to health or safety;
6-35 (9) Licensing powers or functions, including, but not
6-36 limited to, the issuance, denial, suspension, or
6-37 revocation of or the failure or refusal to issue, deny,
6-38 suspend, or revoke any permit, license, certificate,
6-39 approval, order, or similar authorization;
-6-
7- 1 (10) The plan or design for construction of or
7- 2 improvement to highways, roads, streets, bridges, or
7- 3 other public works where such plan or design is prepared
7- 4 in substantial compliance with generally accepted
7- 5 engineering or design standards in effect at the time of
7- 6 preparation of the plan or design;
7- 7 (11) Financing regulatory activities, including, but not
7- 8 limited to, examinations, inspections, audits, or other
7- 9 financial oversight activities;
7-10 (12) Activities of the Georgia National Guard when
7-11 engaged in state or federal training or duty, but this
7-12 exception does not apply to vehicular accidents; or
7-13 (13) Any failure or malfunction occurring before
7-14 December 31, 2005, which is caused directly or
7-15 indirectly by the failure of computer software or any
7-16 device containing a computer processor to accurately or
7-17 properly recognize, calculate, display, sort, or
7-18 otherwise process dates or times, if the failure or
7-19 malfunction causing the loss was unforseeable or if the
7-20 failure or malfunction causing the loss was foreseeable
7-21 but the plan or design or both for identifying and
7-22 preventing the failure or malfunction was prepared in
7-23 substantial compliance with generally accepted computer
7-24 and information system design standards in effect at the
7-25 time of the preparation of the plan or design.
7-26 (b) None of the exceptions to liability in subsection (a)
7-27 of this Code section shall be construed to apply to the
7-28 operation of a vehicle by any public officer or employee."
7-29 SECTION 5.
7-30 Said article is further amended by striking Code Section
7-31 50-21-24.1, relating to workers' compensation as a remedy,
7-32 and inserting in lieu thereof the following:
7-33 "50-21-24.1.
7-34 This article does not waive the workers' compensation
7-35 exclusive remedy when state public officers and employees
7-36 are injured on the job. The workers' compensation fund
7-37 shall pay claims for job related injuries for which
7-38 workers' compensation is the exclusive remedy and not the
7-39 State Tort Claims Trust Fund."
-7-
8- 1 SECTION 6.
8- 2 Said article is further amended by striking Code Section
8- 3 50-21-25, relating to the immunity of state officers and
8- 4 employees, and inserting in lieu thereof the following:
8- 5 "50-21-25.
8- 6 (a) This article constitutes the exclusive remedy for any
8- 7 tort committed by a state public officer or employee. A
8- 8 state public officer or employee who commits a tort while
8- 9 acting within the scope of his or her official duties or
8-10 employment is not subject to lawsuit or liability
8-11 therefor. However, nothing in this article shall be
8-12 construed to give a state public officer or employee
8-13 immunity from suit and liability if it is proved that the
8-14 officer's or employee's conduct was not within the scope
8-15 of his or her official duties or employment.
8-16 (b) A person bringing an action against the state under
8-17 the provisions of this article must name as a party
8-18 defendant only the state government entity or local
8-19 government entity for which the state public officer or
8-20 employee was acting and shall not name the state public
8-21 officer or employee individually. In the event that the
8-22 state public officer or employee is individually named for
8-23 an act or omission conduct for which the a state
8-24 government entity or local government entity may be is
8-25 liable under this article, the state government entity for
8-26 which the state public officer or employee was acting must
8-27 be substituted as the party defendant.
8-28 (c) A settlement or judgment in an action or a settlement
8-29 of a claim under this article constitutes a complete bar
8-30 to any further action by the claimant against a state
8-31 public officer or employee or the state by reason of the
8-32 same occurrence."
8-33 SECTION 7.
8-34 Said article is further amended by striking Code Section
8-35 50-21-26, relating to notices of claims against the state,
8-36 and inserting in lieu thereof the following:
8-37 "50-21-26.
8-38 (a) Each state government entity or local government
8-39 entity shall designate an office or officer within the
8-40 government entity to whom a notice of claim is to be
8-41 delivered or mailed. This designation shall be publicly
-8-
9- 1 and conspicuously posted in the office of each state or
9- 2 local government entity. No person, firm, or corporation
9- 3 having a tort claim against the state under this article
9- 4 shall bring any an action against the state upon such
9- 5 claim without first giving notice of the claim as follows:
9- 6 (1) Notice of a claim shall be given in writing within
9- 7 12 months of the date the loss was discovered or should
9- 8 have been discovered; provided, however, for tort claims
9- 9 and causes of action against a local government entity
9-10 which accrued between January 1, 19911999, and July 1,
9-11 19921999, notice of claim shall be given in writing
9-12 within 12 months after July 1, 1992 on or before July 1,
9-13 2000;
9-14 (2) Notice of a claim shall be given in writing and
9-15 shall be mailed by certified mail, return receipt
9-16 requested, or delivered personally to and a receipt
9-17 obtained from the Risk Management Division of the
9-18 Department of Administrative Services. In addition, a
9-19 copy shall be delivered personally to or mailed by
9-20 first-class mail to the state government entity, the act
9-21 or omissions of which are asserted as the basis of the
9-22 claim. Each state government entity may designate an
9-23 office or officer within that state government entity to
9-24 whom a notice of claim is to be delivered or mailed;
9-25 (3) No action against the state under this article shall
9-26 be commenced and the courts shall have no jurisdiction
9-27 thereof unless and until a written notice of claim has
9-28 been timely presented to the state as provided in this
9-29 subsection;
9-30 (4) Any complaint filed pursuant to this article must
9-31 have a copy of the notice of claim presented to the
9-32 Department of Administrative Services together with the
9-33 certified mail receipt or receipt for other delivery
9-34 attached as exhibits. If failure to attach such
9-35 exhibits to the complaint is not cured within 30 days
9-36 after the state raises such issue by motion, then the
9-37 complaint shall be dismissed without prejudice; and
9-38 (5)(2) A notice of claim under this Code section shall
9-39 state, to the extent of the claimant's knowledge and
9-40 belief and as may be practicable under the
9-41 circumstances, the following:
-9-
10- 1 (A) The name of the state government entity or local
10- 2 government entity believed to be liable for the loss
10- 3 suffered; , the
10- 4 (B) The acts or omissions of which are asserted as the
10- 5 basis of the claim;
10- 6 (B)(C) The time of the transaction or occurrence out
10- 7 of which the loss arose;
10- 8 (C)(D) The place of the transaction or occurrence;
10- 9 (D)(E) The nature of the loss suffered;
10-10 (E)(F) The amount of the loss claimed; and
10-11 (F)(G) The acts or omissions which caused the loss.
10-12 (3) Notice of a claim under this article shall be given
10-13 in writing and shall be mailed by certified mail, return
10-14 receipt requested, or delivered personally to and a
10-15 receipt obtained from an office or officer designated to
10-16 receive such notice. In those cases in which a notice
10-17 of claim must be given to a state government entity, a
10-18 copy of such notice shall also be given to the Risk
10-19 Management Division of the Department of Administrative
10-20 Services of the State of Georgia in the same manner.
10-21 (b) No action may be commenced under this article
10-22 following presentation of a notice of claim until either
10-23 the Department of Administrative Services has denied the
10-24 claim or more than 90 days have elapsed after the
10-25 presentation of the notice of claim without action by the
10-26 Department of Administrative Services, whichever occurs
10-27 first. No action shall be commenced under this article and
10-28 the courts shall have no jurisdiction thereof unless and
10-29 until:
10-30 (1) A written notice of claim has been timely presented
10-31 to the proper state government entity or local
10-32 government entity as provided in this subsection; and
10-33 (2) The claim has been denied by the state government
10-34 entity or local government entity alleged to be liable
10-35 for the loss or more than 90 days have elapsed after the
10-36 presentation of the notice of claim without action by
10-37 such government entity, whichever occurs first.
10-38 (c) The Department of Administrative Services shall have
10-39 the authority to examine and copy any records of any state
10-40 government entity to facilitate the investigation of a
-10-
11- 1 claim. Each state government entity shall make available
11- 2 to the Department of Administrative Services, incidental
11- 3 to any investigation of a claim, all such records
11- 4 notwithstanding any other provision of law which
11- 5 designates such records as confidential or which prohibits
11- 6 disclosure of such records; provided, however, that the
11- 7 Department of Administrative Services shall be bound by
11- 8 such provision of law and shall not make further
11- 9 disclosure of such records except as permitted by such
11-10 provision of law. The Department of Administrative
11-11 Services may enforce the authority granted under this
11-12 subsection by subpoena which may be enforced, upon
11-13 application by the department, by the Superior Court of
11-14 Fulton County, Georgia, in the same manner as subpoenas
11-15 issued under Chapter 13 of this title, the 'Georgia
11-16 Administrative Procedure Act,' may be enforced. Any
11-17 complaint filed pursuant to this article must have
11-18 attached as exhibits copies of all notices of claim
11-19 required to be given together with all certified mail or
11-20 other receipts signifying delivery of such notices. If
11-21 failure to attach such exhibits to the complaint is not
11-22 cured within 30 days after the state government entity or
11-23 local government entity raises such issue by motion, then
11-24 the complaint shall be dismissed without prejudice.
11-25 (d) Any document or information gathered or prepared by
11-26 the Department of Administrative Services in connection
11-27 with the investigation undertaken as a result of the
11-28 notice of claim shall be considered privileged and
11-29 confidential and shall not be subject to discovery by any
11-30 claimant in any proceeding under this article except as
11-31 otherwise provided by law.
11-32 50-21-26.1.
11-33 (a) Each state government entity or local government
11-34 entity shall have 90 days after receipt of a notice of
11-35 claim within which to review the claim and to determine
11-36 whether the claim will be granted or denied in whole or in
11-37 part.
11-38 (b) Whenever a notice of claim is received by the
11-39 Department of Administrative Services, the department
11-40 shall have the authority to examine and copy any records
11-41 of any state government entity to facilitate the
11-42 investigation of a claim. Each state government entity
11-43 shall make available to the Department of Administrative
11-44 Services, incidental to any investigation of a claim, all
-11-
12- 1 such records notwithstanding any other provision of law
12- 2 which designates such records as confidential or which
12- 3 prohibits disclosure of such records; provided, however,
12- 4 that the Department of Administrative Services shall be
12- 5 bound by such provision of law and shall not make further
12- 6 disclosure of such records except as permitted by such
12- 7 provision of law. The Department of Administrative
12- 8 Services may enforce the authority granted under this
12- 9 subsection by subpoena which may be enforced upon
12-10 application by the department by the Superior Court of
12-11 Fulton County, Georgia, in the same manner as subpoenas
12-12 issued under Chapter 13 of this title, the 'Georgia
12-13 Administrative Procedure Act,' may be enforced.
12-14 (c) Whenever a notice of claim is received by a local
12-15 government entity under this article, the local government
12-16 entity shall have the same power subject to the same
12-17 limitations to investigate the claim as is conferred upon
12-18 the Department of Administrative Services. Jurisdiction
12-19 to enforce this investigative authority by subpoena shall
12-20 lie in any county in which the local government transacts
12-21 business.
12-22 (d) Any document or information gathered or prepared in
12-23 connection with an investigation undertaken as a result of
12-24 a notice of claim shall be considered privileged and
12-25 confidential and shall not be subject to discovery by any
12-26 claimant in any proceeding under this article except as
12-27 otherwise provided by law."
12-28 SECTION 8.
12-29 Said article is further amended by striking Code Section
12-30 50-21-27, relating to retroactive operation, limitations,
12-31 and applicability of other related statutes, and inserting
12-32 in lieu thereof the following:
12-33 "50-21-27.
12-34 (a) It is the specific intent of the General Assembly that
12-35 this article shall operate retroactively so as to apply to
12-36 tort claims or causes of action which accrued on or after
12-37 January 1, 1991. A tort claim or cause of action shall be
12-38 deemed to have accrued on the date the loss was occurred
12-39 or should have been discovered. This article shall not
12-40 apply to tort claims or causes of action which accrued
12-41 prior to January 1, 1991.
-12-
13- 1 (b) For tort With respect to claims and causes of action
13- 2 against a local government entity which accrued between
13- 3 January 1, 19911999, and July 1, 19921999, any tort action
13- 4 brought pursuant to this article is forever barred unless
13- 5 it is commenced within two years after on or before July
13- 6 1, 19922001.
13- 7 (c) For tort claims and causes of action which accrue on
13- 8 or after July 1, 1992, Subject to the transition provision
13- 9 in subsection (b) of this Code section, any tort action
13-10 brought pursuant to this article is forever barred unless
13-11 it is commenced within two years after the date the loss
13-12 was occurred or should have been discovered.
13-13 (d) Statutes of ultimate repose and abrogation, as
13-14 provided for elsewhere in this Code, shall apply to claims
13-15 and actions brought pursuant to this article.
13-16 (e) All provisions relating to the tolling of limitations
13-17 of actions, as provided elsewhere in this Code, shall
13-18 apply to causes of action brought pursuant to this
13-19 article."
13-20 SECTION 9.
13-21 Said article is further amended by striking Code Section
13-22 50-21-28, relating to venue, and inserting in lieu thereof
13-23 the following:
13-24 "50-21-28.
13-25 All tort actions against the state under this article
13-26 shall be brought in the state or superior court of the
13-27 county wherein the loss occurred; provided, however, that,
13-28 in any case in which an a public officer or employee of
13-29 the state may be included as a defendant in his an
13-30 individual capacity, the action may be brought in the
13-31 county of residence of such public officer or employee.
13-32 All actions against the state for losses sustained in any
13-33 other state foreign jurisdiction shall be brought in the
13-34 county of residence of any public officer or employee
13-35 residing in this state upon whose actions or omissions the
13-36 claim against the state is based."
13-37 SECTION 10.
13-38 Said article is further amended by striking Code Section
13-39 50-21-29, relating to trials and limitations on damages, and
13-40 inserting in lieu thereof the following:
-13-
14- 1 "50-21-29.
14- 2 (a) Trial of tort actions against the state under this
14- 3 article shall be conducted by a judge with a jury;
14- 4 provided, however, the parties may agree that the same be
14- 5 tried by a judge without a jury.
14- 6 (b) In any action or claim for damages brought under the
14- 7 provisions of this article, no person shall recover a sum
14- 8 exceeding $1 million because of loss arising from a single
14- 9 occurrence, regardless of the number of state government
14-10 entities or local government entities involved; and the
14-11 state's aggregate liability per occurrence shall not
14-12 exceed $3 million. The existence of these caps limits on
14-13 liability shall not be disclosed or suggested to the jury
14-14 during the trial of any action brought under this
14-15 article."
14-16 SECTION 11.
14-17 Said article is further amended by striking Code Section
14-18 50-21-32, relating to signing of pleadings, motions, or
14-19 other papers, and Code Section 50-21-33, relating to
14-20 insurance programs, the State Tort Claims Trust Fund, and
14-21 merger of preexisting programs and funds, and inserting in
14-22 lieu thereof the following:
14-23 "50-21-32.
14-24 In any claim, action, or proceeding brought under this
14-25 article, the signature of an attorney or party constitutes
14-26 a certificate by him or her that he or she has read the
14-27 pleading, motion, or other paper; that to the best of his
14-28 or her knowledge, information, and belief formed after
14-29 reasonable inquiry it is well grounded in fact and is
14-30 warranted by existing law or a good faith argument for the
14-31 extension, modification, or reversal of existing law; and
14-32 that it is not interposed for any improper purpose, such
14-33 as to harass or to cause unnecessary delay or needless
14-34 increase in the cost of litigation. If a pleading,
14-35 motion, or other paper is not signed, it shall be stricken
14-36 unless it is signed promptly after the omission is called
14-37 to the attention of the pleader or movant. If a pleading,
14-38 motion, or other paper is signed in violation of this Code
14-39 section, the court, upon motion or upon its own
14-40 initiative, shall impose upon the person who signed it, a
14-41 represented party, or both an appropriate sanction, which
14-42 may include an order to pay to the other party or parties
14-43 the amount of the reasonable expenses incurred because of
-14-
15- 1 the filing of the pleading, motion, or other paper,
15- 2 including reasonable attorneys' fees.
15- 3 50-21-33.
15- 4 (a) The Department of Administrative Services shall
15- 5 formulate and initiate a sound program providing for
15- 6 liability insurance, self-insurance, or a combination of
15- 7 both to provide for payment of judgments and claims
15- 8 against the state government entities under this article.
15- 9 (b) The commissioner of administrative services shall have
15-10 the authority to purchase policies of liability insurance
15-11 or contracts of indemnity insuring or indemnifying the
15-12 state government entities against liabilities arising
15-13 under this article. In addition or alternatively, the
15-14 commissioner of administrative services may retain all
15-15 moneys paid to the Department of Administrative Services
15-16 by state government entities as premiums for insurance or
15-17 indemnity against liabilities arising under this article,
15-18 and all money specifically appropriated to the Department
15-19 of Administrative Services for the payment of liabilities
15-20 under this article, all moneys received as interest, and
15-21 all funds received from other sources to set up and
15-22 maintain a reserve fund for the payment of judgments and
15-23 claims against the state under this article and for
15-24 payment of the expenses necessary to properly administer a
15-25 self-insurance program. The commissioner of
15-26 administrative services shall invest any such moneys in
15-27 the same manner as other moneys in his or her possession.
15-28 State agencies government entities which provide services
15-29 or incur expenses in connection with any claim covered by
15-30 this article may receive payment from the fund for such
15-31 services and expenses.
15-32 (c) Any reserve fund created under this Code section shall
15-33 be designated the State Government Tort Claims Trust Fund.
15-34 (d) The Department of Administrative Services shall
15-35 establish and charge to state government entities such
15-36 premiums and other payments, taking into account any
15-37 direct appropriations as shall be necessary to maintain
15-38 the soundness of the insurance or self-insurance programs
15-39 established under this Code section. The premiums charged
15-40 to each state government entity may be established on such
15-41 basis as the Department of Administrative Services shall
15-42 deem appropriate and such basis may include the number of
15-43 employees, the aggregate annual budget of the state
-15-
16- 1 government entity, and unique exposures, loss history, or
16- 2 claims pending against such state government entity.
16- 3 (e) Each state government entity shall promptly remit from
16- 4 appropriations or other funds available to it the premium
16- 5 thus established.
16- 6 (f) Where existing programs have previously been
16- 7 established by the Department of Administrative Services
16- 8 for the insurance or self-insurance of the state, state
16- 9 government entities, or state officers or employees of
16-10 such entities, the commissioner of administrative services
16-11 shall be authorized to merge all or part of those
16-12 programs, including all or part of any self-insurance
16-13 funds established thereunder, into the State Government
16-14 Tort Claims Trust Fund. This shall include, but not be
16-15 limited to, any funds established by Code Sections 45-9-4
16-16 and 50-5-16. In so doing, the Department of
16-17 Administrative Services shall be authorized, through the
16-18 State Government Tort Claims Trust Fund, to assume or not
16-19 to assume all or part of existing and potential
16-20 liabilities of the prior established programs and funds.
16-21 (g) As to state government entities for which additional
16-22 particular coverages are necessary, the Department of
16-23 Administrative Services may provide such additional
16-24 particular coverages and other terms and conditions of
16-25 unique exposure particular to one or more state government
16-26 entities; may provide for endorsements for contract
16-27 liability; and, where necessary to the public purposes of
16-28 the state government entity, may also provide for
16-29 additional insureds.
16-30 (h) Nothing in this Code section or in this article shall
16-31 impose or create any obligation upon other funds of the
16-32 any state government entity.
16-33 (i) Funds appropriated to the Department of Administrative
16-34 Services for the State Government Tort Claims Trust Fund
16-35 shall be deemed contractually obligated funds held in
16-36 trust, subject to future legislative change or revision,
16-37 for the benefit of persons having claims, known or
16-38 unknown, or judgments payable from the funds and shall not
16-39 lapse.
16-40 50-21-33.1.
16-41 (a) As of the effective date of this Code section, each
16-42 local government entity shall have in effect a program of
-16-
17- 1 risk management or insurance that is financially
17- 2 sufficient to cover its liability for claims which might
17- 3 accrue under this article.
17- 4 (b) The Commissioner of Insurance shall have the authority
17- 5 to determine whether a program of risk management or
17- 6 insurance is financially sufficient to cover the potential
17- 7 liability of local government entities under this article
17- 8 and shall promulgate rules and regulations to effectuate
17- 9 the purpose of this Code section.
17-10 (c) A local government entity may satisfy the financial
17-11 sufficiency requirement of subsections (a) and (b):
17-12 (1) By acquiring or maintaining membership in an
17-13 interlocal risk management agency established, approved,
17-14 and operated in accordance with:
17-15 (A) Chapter 85 of Title 36; or
17-16 (B) Chapter 2 of Article 29 of Title 20;
17-17 (2) By purchasing liability insurance approved by the
17-18 Commissioner of Insurance. To be approved by the
17-19 Commissioner, each liability insurance policy must be
17-20 issued by an insurer that is licensed in the State of
17-21 Georgia, is solvent, and is otherwise capable of meeting
17-22 its contractual obligations; or
17-23 (3) By any other means permitted under the laws of the
17-24 State of Georgia and approved by the Commissioner of
17-25 Insurance."
17-26 SECTION 12.
17-27 Said article is further amended by striking Code Section
17-28 50-21-34, relating to payment of claims or judgments,
17-29 prohibition of execution or levy against state funds or
17-30 property, and aggregate liability for a fiscal year, and
17-31 inserting in lieu thereof the following:
17-32 "50-21-34.
17-33 (a) No claim or judgment against the a state government
17-34 entity under this article shall be payable except from the
17-35 State Government Tort Claims Trust Fund or from any
17-36 policies of insurance or contracts of indemnity provided
17-37 under this article.
17-38 (b) Nothing in this article shall be construed to
17-39 authorize any execution or levy against any state
17-40 government property or funds. Execution or levy against
-17-
18- 1 state government property or funds is expressly
18- 2 prohibited.
18- 3 (c) Judgments A judgment against the a state government
18- 4 entity under this article shall be promptly paid by the
18- 5 commissioner of administrative services within 60 days
18- 6 after the same become becomes final if funds are available
18- 7 from the State Government Tort Claims Trust Fund or from
18- 8 other policies of insurance or contracts of indemnity
18- 9 established under this article.
18-10 (d) The fiscal year aggregate liability of the state
18-11 government under this article shall never exceed the
18-12 amount of funds available from the State Government Tort
18-13 Claims Trust Fund and any other policies of insurance or
18-14 contracts of indemnity established under this article.
18-15 For purposes of this Code section, the term 'funds
18-16 available from the State Government Tort Claims Trust
18-17 Fund' means the cash balance in the fund less the
18-18 department's operating expense allocation to the fund for
18-19 the year. Any judgments obtained in excess of this
18-20 limitation on annual aggregate liability will not be void.
18-21 However, such excess judgments shall not be payable unless
18-22 and until the General Assembly appropriates funds for the
18-23 payment thereof.
18-24 50-21-34.1.
18-25 (a) No claim or judgment against a local government entity
18-26 shall be payable except as authorized under Code Section
18-27 50-21-33.1 of this article.
18-28 (b) Nothing in this article shall be construed to
18-29 authorize any execution or levy against any local
18-30 government property or funds. Execution or levy against
18-31 local government property or funds is expressly
18-32 prohibited.
18-33 (c) Judgments against a local government entity under this
18-34 article shall be promptly paid in the manner authorized
18-35 under Code Section 50-21-33.1 but in no event more than 60
18-36 days after a judgment becomes final.
18-37 (d) The fiscal year aggregate liability of a local
18-38 government entity under this article shall never exceed
18-39 the amount of funds available under Code Section
18-40 50-21-33.1 or from other policies of insurance or
18-41 contracts of indemnity. Any judgments obtained in excess
18-42 of this limitation on annual aggregate liability will not
-18-
19- 1 be void. However, such excess judgments shall not be
19- 2 payable unless and until funds become available for the
19- 3 payment thereof."
19- 4 SECTION 13.
19- 5 Said article is further amended by striking Code Section
19- 6 50-21-35, relating to service of process, and inserting in
19- 7 lieu thereof the following:
19- 8 "50-21-35.
19- 9 (a) In all civil actions brought against the state under
19-10 this article, to perfect service of process the plaintiff
19-11 must both: (1) cause process to be served upon the chief
19-12 executive officer of the state government entity or local
19-13 government entity involved at his or her usual office
19-14 address; and (2).
19-15 (b) In actions brought against any state government
19-16 entity:
19-17 (1) The plaintiff shall also cause process to be served
19-18 upon the director of the Risk Management Division of the
19-19 Department of Administrative Services at his or her
19-20 usual office address. The time for the state government
19-21 entity to file an answer shall not begin to run until
19-22 process has been served upon all required persons.
19-23 (2) A copy of the complaint, showing the date of
19-24 filing, shall also be mailed to the Attorney General of
19-25 the state at his or her usual office address, by
19-26 certified mail, return receipt requested, and there
19-27 shall be attached to the complaint a certificate that
19-28 this requirement has been met."
19-29 SECTION 14.
19-30 Said article is further amended by striking Code Section
19-31 50-21-36, relating to settlement of claims, and inserting in
19-32 lieu thereof the following:
19-33 "50-21-36.
19-34 (a) The commissioner of the Department of Administrative
19-35 Services, or his or her delegate, shall have the
19-36 authority, within the limits provided in this article, to
19-37 make settlement of claims, causes of action, and actions
19-38 under this article against a state government entity.
19-39 (b) Subject to any approval required by law, the chief
19-40 executive officer of a local government entity, or his or
-19-
20- 1 her delegate, shall have the authority, within the limits
20- 2 provided in this article, to make settlement of claims
20- 3 against a local government entity."
20- 4 SECTION 15.
20- 5 Said article is further amended by striking Code Section
20- 6 50-21-37, relating to indemnification and hold harmless
20- 7 agreements, and inserting in lieu thereof the following:
20- 8 "50-21-37.
20- 9 (a) If a state government entity enters into or is the
20-10 beneficiary of any agreement under which a third party
20-11 agrees to hold a state government entity or the State Tort
20-12 Claims Trust Fund harmless or to indemnify a state
20-13 government entity or the State Tort Claims Trust Fund, or
20-14 to provide insurance for those purposes, then the third
20-15 party or the insurer, as the case may be, shall be liable
20-16 to the State Tort Claims Trust Fund in accordance with
20-17 such agreement or contract of insurance, for reimbursement
20-18 of the amount of any disbursements from the State Tort
20-19 Claims Trust Fund in satisfaction of any liability,
20-20 whether established by judgment or settlement in
20-21 accordance with this article, to the extent of the hold
20-22 harmless obligation or requirement to procure insurance
20-23 undertaken under such agreement or contract of insurance
20-24 obtained pursuant to such agreement. The liability limits
20-25 specified under Code Section 50-21-29 shall not be
20-26 increased by the existence of hold harmless or indemnity
20-27 obligations in such contractual agreements or by the
20-28 obligation to procure insurance for such purposes or by
20-29 the limits set forth in any such contractual agreement or
20-30 contract of insurance procured pursuant thereto. If a
20-31 third party is obligated by contract or agreement to hold
20-32 harmless or to indemnify the state, the State Government
20-33 Tort Claims Trust Fund, or a local government tort claims
20-34 trust fund, then the third party shall be bound by such
20-35 contract or agreement in accordance with its terms. The
20-36 liability limits specified under Code Section 50-21-30
20-37 shall not be increased by the existence of hold harmless
20-38 or indemnity obligations in such contractual agreements or
20-39 by the obligation to procure insurance for such purposes
20-40 or by the limits set forth in any such contractual
20-41 agreement or contract of insurance procured pursuant
20-42 thereto.
-20-
21- 1 (b) No policy of insurance shall be delivered in this
21- 2 state which negates the provisions of this Code section or
21- 3 which provides that the limits of the policy are excess
21- 4 over amounts payable from the State Tort Claims Trust Fund
21- 5 under this Code section article."
21- 6 SECTION 16.
21- 7 Chapter 33 of Title 36 of the Official Code of Georgia
21- 8 Annotated, relating to the liability of municipal
21- 9 corporations for acts or omissions, is amended by striking
21-10 Code Section 36-33-5, relating to the prerequisite written
21-11 demand for certain claims, the time for presenting the
21-12 claim, and the suspension of the running of the statute of
21-13 limitations while the demand is pending before the governing
21-14 authority, and inserting in lieu thereof the following:
21-15 "36-33-5.
21-16 (a) No person, firm, or corporation having a claim for
21-17 money damages against any municipal corporation on account
21-18 of injuries to person or property shall bring any action
21-19 against the municipal corporation for such injuries,
21-20 without first giving notice as provided in subsection (b)
21-21 of this Code section. (b) Within six months of the happening of the event upon
21-23 which a claim against a municipal corporation is
21-24 predicated, the person, firm, or corporation having the
21-25 claim shall present the claim in writing to the governing
21-26 authority of the municipal corporation for adjustment,
21-27 stating the time, place, and extent of the injury, as
21-28 nearly as practicable, and the negligence which caused the
21-29 injury. No action shall be entertained by the courts
21-30 against the municipal corporation until the cause of
21-31 action therein has first been presented to the governing
21-32 authority for adjustment. (c) Upon the presentation of such claim, the governing
21-34 authority shall consider and act upon the claim within 30
21-35 days from the presentation; and the action of the
21-36 governing authority, unless it results in the settlement
21-37 thereof, shall in no sense be a bar to an action therefor
21-38 in the courts. (d) The running of the statute of limitations shall be
21-40 suspended during the time that the demand for payment is
21-41 pending before such authorities without action on their
21-42 part. Reserved."
-21-
22- 1 SECTION 17.
22- 2 All laws and parts of laws in conflict with this Act are
22- 3 repealed.
-22-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 01/10/00
