MCBRAYER v. SCARBROUGH

FINAL COPY

         S22G1152. MCBRAYER et al. v. SCARBROUGH.


     ELLINGTON, Justice.

     In McBrayer v. Scarbrough, 

, 118 (

) (2022), the Court of Appeals affirmed an order of the Superior

Court of Tift County granting a judgment on the pleadings in favor

of the Sheriff of Tift County, Gene Scarbrough, in this action brought

by Sherrie McBrayer for the wrongful death of her husband, James

Aaron McBrayer (“the decedent”). The Court of Appeals held that

Scarbrough was immune from suit because McBrayer’s complaint

did not show that the decedent’s death, which occurred while he was

restrained in the back seat of a patrol car, arose from the sheriff’s

deputies’ “use” of the patrol car “as a vehicle,” which, under Court of

Appeals case law construing OCGA §§ 33-24-51 (b) and 36-92-2, is a

prerequisite for a waiver of sovereign immunity for injuries arising

from the “negligent use of a covered motor vehicle.” McBrayer, 364

Ga. App. at 118 (2). In so holding, the Court of Appeals noted that
McBrayer’s complaint did not allege “that the car was running; that

any deputy was seated in the car; that any deputy was poised to

start the car or transport the decedent to any location”; or that the

deputies were otherwise “actively” using the patrol car “as a

vehicle.” Id. at 115 (1). McBrayer thereafter timely petitioned this

Court for a writ of certiorari to the Court of Appeals. 1 We granted

her petition and posed these questions to the parties:

           (1) Does “use” of a motor vehicle as provided in
     OCGA §§ 33-24-51 (b) and 36-92-2 require the motor
     vehicle to be “actively in use” “as a vehicle” when the
     injury arose? . . .
           (2) Does loading a person into or restraining a
     person in a patrol car constitute the “use” of a motor
     vehicle as to which sovereign immunity is waived under
     OCGA §§ 33-24-51 (b) and 36-92-2?

     As explained below, we hold that the Court of Appeals erred in

limiting the meaning of the word “use” in the phrase “use of a

covered motor vehicle” by reading into OCGA §§ 33-24-51 (b) and 36-

92-2 the words “actively” and “as a vehicle.” Therefore, we reverse

the judgment of the Court of Appeals and remand the case to that


     1 We granted a writ of certiorari on March 7, 2023. The case was docketed

to the April 2023 term and orally argued on June 20, 2023.
                                     2
court.

    1. Standard of Review and Pertinent Factual and Procedural
Background

     “Our review of a trial court’s decision on a motion for judgment

on the pleadings is de novo.” Polo Golf and Country Club

Homeowners Assn. v. Cunard, 

 (2) (

)

(2019). And, in reviewing such motions, “all well-pleaded material

allegations of the opposing party’s pleading are to be taken as true,

and all allegations of the moving party which have been denied are

taken as false.” (Citation and punctuation omitted.) Id. at 791-792

(2). See also Reliance Equities v. Lanier 5, 

 (1) (

) (2016) (“On appeal, we review de novo the trial court’s

decision on a motion for judgment on the pleadings, and we construe

the complaint in a light most favorable to the [non-movant], drawing

all reasonable inferences in his favor.” (citations and punctuation

omitted)). Further, questions concerning the application of

sovereign immunity are legal questions subject to de novo review.

See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast,


                                  3


 (2) (

) (2014). The Court of Appeals,

applying this de novo standard of review to the trial court’s ruling,

accurately recounted the pertinent allegations of McBrayer’s

complaint in its opinion:

          [McBrayer’s] complaint alleges that, in April 2019,
     Tift County deputies tased and apprehended [the
     decedent]. The decedent’s hands and feet were restrained,
     and the deputies allegedly placed him horizontally onto
     the back seat of a patrol car before leaving him
     unattended. The decedent then passed away while left
     unattended in the patrol car, and an autopsy revealed
     that he died as a result of excited delirium which was
     secondary to being tased. McBrayer, individually and as
     the decedent’s surviving spouse and on behalf of the
     decedent’s children, filed this wrongful death action
     against Scarbrough in his official capacity [as Tift County
     sheriff]. She claimed that the incident arose from the
     deputies’ negligent use of a motor vehicle, as
     contemplated by OCGA § 36-92-2, and that the patrol car
     was a “covered vehicle,” as that phrase is used in OCGA
     §§ 33-24-51; 36-92-1; and 36-92-2. The complaint allege[s]
     that the deputies were negligent because (1) they placed
     the decedent face down in the back seat of the patrol car
     after having applied extreme force and restraint on him
     and left him unattended and unsupervised; and (2) they
     used the rear passenger door to hold a cobble strap that
     was attached to the decedent’s feet.
McBrayer, 364 Ga. App. at 113. The record also shows that

Scarbrough admitted that he and the Tift County Sheriff’s Office


                                 4
were members of an Interlocal Risk Management Agency and that

the patrol car was a covered vehicle under an insurance policy.2

      In Division 1 of its opinion, the Court of Appeals stated that

whether

      an event arises from the “use” of a motor vehicle depends
      largely on the circumstances, and a bright-line definition
      is elusive. But statutes that provide for a waiver of
      sovereign immunity . . . are in derogation of the common
      law and thus are to be strictly construed against a finding
      of waiver.

(Citation, punctuation and emphasis omitted.) McBrayer, 

 McBrayer filed suit on September 26, 2019, and Scarbrough answered

on December 16, 2019. On December 7, 2020, Scarbrough filed a motion for a
judgment on the pleadings. Thereafter, McBrayer filed a first amendment to
the complaint and a response to Scarbrough’s motion for a judgment on the
pleadings. Scarbrough filed an answer to the amended complaint as well as a
supplemental brief in support of his motion for a judgment on the pleadings.
Paragraph 7 of the original complaint specifically alleged that McBrayer’s
death arose out of the use of the patrol car “as is contemplated in [OCGA §] 36-
92-2.” Paragraph 8 of the original complaint and Paragraph 2 of the amended
complaint alleged that McBrayer’s death occurred as the result of the sheriff’s
deputies’ negligence in loading him into the patrol car and leaving him there
unattended and unsupervised. In Paragraph 9 of the original complaint and
Paragraph 3 of the amended complaint, McBrayer alleged that the deputies
were acting within the scope of their official duties and employment; that
Scarbrough was a member of an Interlocal Risk Management Agency; that a
policy of automobile insurance covering the sheriff and his deputies was in full
force and effect; and that the patrol car was a “covered motor vehicle” as that
phrase is used in OCGA §§ 33-24-51, 36-92-1 and 36-92-2. In Scarbrough’s
answer to the amended complaint, he admitted that a policy of liability
insurance was in effect and covered the patrol car in which the decedent died.
                                       5
App. at 114 (1). Further, the Court of Appeals observed that, in those

cases where it had found a waiver of sovereign immunity for the

“use” of a motor vehicle, the vehicle was “actively in use when the

injury arose” and whether sovereign immunity was waived

depended on “whether the injury originated from, had its origin in,

grew out of, or flowed from the use of the motor vehicle as a vehicle.”

(Citation and punctuation omitted; emphasis in original.) Id. The

Court of Appeals determined that, although the deputies were using

the patrol car to confine and restrain the decedent, the car was not

being used as a vehicle. Moreover, the deputies’ act of “loading” the

decedent into the patrol car did not necessarily mean that the

vehicle was “actively in use” for purposes of waiving sovereign

immunity. In Division 2 of its opinion, the Court of Appeals rejected

McBrayer’s argument that waiver of sovereign immunity is

determined by whether the insurance policy covered the alleged

event and confirmed that the relevant question was whether the

vehicle was “in ‘use’ as a vehicle in its ordinary sense.” Id. at 118 (2).

     2. Analysis

                                    6
     At issue in this appeal is the meaning of the word “use,” as it

is employed in the phrase “use of a covered motor vehicle,” in the

text of OCGA §§ 33-24-51 and 36-92-2,3 for purposes of determining



     3 OCGA § 33-24-51 provides, in pertinent part and with the pertinent

text emphasized, as follows:
             (a) A municipal corporation, a county, or any other political
      subdivision of this state is authorized in its discretion to secure
      and provide insurance to cover liability for damages on account of
      bodily injury or death resulting from bodily injury to any person or
      for damage to property of any person, or for both arising by reason
      of ownership, maintenance, operation, or use of any motor vehicle
      by the municipal corporation, county, or any other political
      subdivision of this state under its management, control, or
      supervision, whether in a governmental undertaking or not, and
      to pay premiums for the insurance coverage.
             (b) The sovereign immunity of local government entities for
      a loss arising out of claims for the negligent use of a covered motor
      vehicle is waived as provided in Code Section 36-92-2. Whenever a
      municipal corporation, a county, or any other political subdivision
      of this state shall purchase the insurance authorized by subsection
      (a) of this Code section to provide liability coverage for the
      negligence of any duly authorized officer, agent, servant, attorney,
      or employee in the performance of his or her official duties in an
      amount greater than the amount of immunity waived as in Code
      Section 36-92-2, its governmental immunity shall be waived to the
      extent of the amount of insurance so purchased. Neither the
      municipal corporation, county, or political subdivision of this state
      nor the insuring company shall plead governmental immunity as
      a defense; and the municipal corporation, county, or political
      subdivision of this state or the insuring company may make only
      those defenses which could be made if the insured were a private
      person.
      OCGA § 36-92-2 provides, in pertinent part and with the pertinent text
emphasized, as follows:

                                     7
whether sovereign immunity has been waived. Our analysis is

limited to the scope of the meaning of the word “use” in the context

of those permissible purposes for which a covered vehicle may be

employed. To answer the questions this Court posed in granting


            (a) The sovereign immunity of local government entities for
     a loss arising out of claims for the negligent use of a covered motor
     vehicle is waived up to the following limits:
                                        ...
                   (3) $500,000.00 because of bodily injury or death of any
            one person in any one occurrence, an aggregate amount of
            $700,000.00 because of bodily injury or death of two or more
            persons in any one occurrence, and $50,000.00 because of
            injury to or destruction of property in any one occurrence, for
            incidents occurring on or after January 1, 2008.
            (b) The sovereign immunity of local government entities for
     a loss arising out of claims for the negligent use of a covered motor
     vehicle is waived only to the extent and in the manner provided in
     this chapter and only with respect to actions brought in the courts
     of this state. This chapter shall not be construed to affect any claim
     or cause of action otherwise permitted by law and for which the
     defense of sovereign immunity is not available.
                                        ...
            (d) The waiver provided by this chapter shall be increased to
     the extent that:
                   (1) The governing body of the local governmental
            entity by resolution or ordinance voluntarily adopts a higher
            waiver;
                   (2) The local government entity becomes a member of
            an interlocal risk management agency created pursuant to
            Chapter 85 of this title to the extent that coverage obtained
            exceeds the amount of the waiver set forth in this Code
            section; or
                   (3) The local government entity purchases commercial
            liability insurance in an amount in excess of the waiver set
            forth in this Code section.
                                       8
certiorari, we review the applicable law of sovereign immunity

generally and as applied to Scarbrough. We conduct a textual

analysis of the statutes at issue, applying the fundamental canons

of statutory construction, and then we apply the statutes to the facts

of this case.

     (a) Sovereign Immunity and Scarbrough’s Immunity from Suit

     “As a general rule, counties enjoy sovereign immunity. The

constitutional reservation of sovereign immunity to ‘the State’

[under Article I, Section II, Paragraph IX (e) of the Constitution of

the State of Georgia] is a constitutional reservation of sovereign

immunity to the counties of the State of Georgia.” (Citations and

punctuation omitted.) Layer v. Barrow County, 

 (1)

(

) (2015). See also Gilbert v. Richardson, 

 (2) (

) (1994) (holding that, while the reservation of

immunity clause of the Georgia Constitution, as amended in 1991,

did not expressly refer to counties, “the 1991 amendment’s extension

of sovereign immunity to ‘the state and its departments and

agencies’ must also apply to counties” (citation omitted)); Ga. Const.

                                  9
of 1983, Art. I, Sec. II, Par. IX (e) (“Except as specifically provided in

this Paragraph, sovereign immunity extends to the state and all of

its departments and agencies. The sovereign immunity of the state

and its departments and agencies can only be waived by an Act of

the General Assembly which specifically provides that sovereign

immunity is thereby waived and the extent of such waiver.”). See

also Ga. Const. of 1983, Art. IX, Sec. II, Par. IX (“The General

Assembly may waive the immunity of counties, municipalities, and

school districts by law.”); OCGA § 36-1-4 (“A county is not liable to

suit for any cause of action unless made so by statute.”).

     Because Scarbrough was sued in his official capacity as sheriff

of Tift County, he “enjoys sovereign immunity because styling a

claim against a county officer in his official capacity is simply a way

of pleading a claim against the county itself.” Roberts v. Cuthpert,

___ Ga. ___, ___ (2) (

, 

) (Case

No. S23A0631, decided September 9, 2023). See also Gilbert, 

 (2) n.4 (holding state’s sovereign immunity extends to

counties). Further, the “burden of demonstrating a waiver of

                                   10
sovereign immunity rests upon the party asserting it.” Ga. Dept. of

Labor v. RTT Assoc., Inc., 

 (1) (

) (2016).

Whether Scarbrough’s immunity has been waived is a jurisdictional

issue and not simply a defense to liability. See McConnell v. Dept. of

Labor, 

 (

) (2017) (“[T]he applicability of

sovereign immunity is a threshold determination, and, if it does

apply, a court lacks jurisdiction over the case and, concomitantly,

lacks authority to decide the merits of a claim that is barred.”

(footnote omitted)).

     (b) Waiver of Sovereign Immunity

     Code Sections 33-24-51 and 36-92-2 both expressly provide for

a waiver of a local government entity’s sovereign immunity and the

extent of such a waiver. OCGA § 33-24-51 (b) expressly states that

“[t]he sovereign immunity of local government entities for a loss

arising out of claims for the negligent use of a covered motor vehicle

is waived as provided in Code Section 36-92-2.” OCGA § 36-92-2 (a)

states that “[t]he sovereign immunity of local government entities

for a loss arising out of claims for the negligent use of a covered

                                 11
motor vehicle is waived” up to specified monetary limits. OCGA §

36-92-2 (b) states that “[t]he sovereign immunity of local

government entities for a loss arising out of claims for the negligent

use of a covered motor vehicle is waived only to the extent and in the

manner provided in this chapter and only with respect to actions

brought in the courts of this state.” The plain language of these Code

sections express a waiver of sovereign immunity for the negligent

use of a covered motor vehicle. Thus, to answer the questions we

posed to the parties, we must determine the scope of the meaning of

the word “use” as employed in the context of these statutory

provisions.4

     With respect to how this Court should construe the meaning of

“use” in the statutes, McBrayer argues that the word should be

construed as broadly as it is employed in the county’s insurance

policy. Scarbrough, however, argues that “use” should be construed




     4 We do not address whether the patrol car at issue is a “covered motor

vehicle” as required by OCGA § 36-92-2 (a) (emphasis supplied). Scarbrough
has admitted that the patrol car was a covered motor vehicle as that phrase is
used in OCGA §§ 33-24-51, 36-92-1, and 36-92-2.
                                     12
narrowly to avoid a waiver of sovereign immunity. As demonstrated

below, we disagree with both arguments.

     (c) Applicable Rules of Statutory Construction

     Generally, when interpreting statutes, including statutes

waiving sovereign immunity, the fundamental canons of statutory

construction apply. See Gilbert, 

 (3). As we have

explained,

     [a] statute draws its meaning . . . from its text. Under our
     well-established rules of statutory construction, we
     presume that the General Assembly meant what it said
     and said what it meant. To that end, we must afford the
     statutory text its plain and ordinary meaning, we must
     view the statutory text in the context in which it appears,
     and we must read the statutory text in its most natural
     and reasonable way, as an ordinary speaker of the
     English language would.

(Citations and punctuation omitted.) Patton v. Vanterpool, 

 (

) (2017). See also Integon Indem. Corp. v.

Canal Ins. Co., 

 (

) (1987) (“Statutes

should be read according to the natural and most obvious import of

the language, without resorting to subtle and forced constructions,

for the purpose of either limiting or extending their operation.”).

                                 13
Indeed, “where the statutory text is clear and unambiguous, we

attribute to the statute its plain meaning, and our search for

statutory meaning ends.” (Citation and punctuation omitted).

Patton, 

. Only if the text of the statute presents an

ambiguity do we apply the canons of statutory construction

applicable to resolving ambiguities.

     (d) The Meaning of “Use” in OCGA §§ 33-24-51 and 36-92-2

     In pertinent part, OCGA § 33-24-51 (b) waives the sovereign

immunity of local government entities for losses “arising out of

claims for the negligent use of a covered motor vehicle . . . as

provided in Code Section 36-92-2.” Code Section 36-92-2 (a) and (b)

set financial limits on the extent of the waiver for losses “arising out

of claims for the negligent use of a covered motor vehicle.” Neither

provision defines the word “use,” nor is the word defined elsewhere

in Chapter 92 of Title 36. See OCGA § 36-92-1 (definitions).

     In ascertaining the ordinary meaning of a word that is not

defined in a statute, it is often helpful to consult dictionaries that

were in use when the statutes were enacted. Although dictionaries

                                  14
“offer a useful reference for any such analysis[,]” they “cannot be the

definitive source of ordinary meaning in questions of textual

interpretation because they are acontextual, and context is a critical

determinant of meaning.” (Citation omitted.) State v. SASS Group,

 (2) (a) (

) (2023). Nevertheless,

they do provide a useful starting point.

     Code Section 33-24-51 was enacted in 1960 and amended in

1985 and 2002.5 Code Section 36-92-1 was enacted in 2002.6 From

1960 through 2002, the meaning of the word “use” has remained

constant. In both statutes, the word “use” is primarily employed as

a noun. As a noun, the meaning of the word “use” has been defined

as “the act or practice of employing something; employment.”7 As a



     5 See Ga. L. 1960, pp. 289, 673-674, §   1; Ga. L. 1985, p. 1054, § 1; Ga. L.
2002, p. 579, § 1.
      6 See Ga. L. 2002, p. 579, § 3.
      7 See, e.g., Merriam-Webster’s Collegiate Dictionary 1378 (11th ed.,

(2003) (defining “use” as “[t]he act or practice of employing something;
employment”); Webster’s New Collegiate Dictionary 1288 (1973) (defining
“use” as “the act or practice of employing something”); Webster’s Seventh New
Collegiate Dictionary 978 (1963) (defining “use” as “the act or practice of
employing something; employment”); Webster’s New Collegiate Dictionary 937
(1949) (defining “use” as the “[a]ct of employing anything or state of being
employed; application; employment; as the use of a pen”).
                                     15
transitive verb, the word has a similar meaning, “to put into action

or service; avail oneself of; employ.”8 The word, in ordinary and

natural parlance, is broad and subject to nuances in meaning based

upon the context in which it is employed. For example, “use”

embraces the employment of a thing in both expected and

unexpected ways, for example, using a hammer to strike a nail or

using a hammer passively as a paperweight or actively as a murder

weapon.

      The question here is what qualifies as the “use” of a “covered

motor vehicle.” If “use” carries its ordinary meaning in these

statutes, then an act is the “use” of a motor vehicle if a “covered

motor vehicle” is being “employed” or “put into action or service.”

That definition of “use” in this context would certainly include

employing vehicles as transportation of people and things; after all,


      8 See, e.g., Merriam-Webster’s Collegiate Dictionary 1378 (11th ed.,
(2003) (defining “use” as “to put into action or service; avail oneself of; employ”);
Webster’s New Collegiate Dictionary 1288 (1973) (defining “use” as “[t]o put
into action or service: avail oneself; employ”); Webster’s Seventh New
Collegiate Dictionary 978 (1963) (defining “use” as “[t]o put into action or
service: avail oneself; employ”); Webster’s New Collegiate Dictionary 937
(1949) (defining “use” as “[t]o convert to one’s service; to avail oneself of; to
employ; as to use a plow”).
                                         16
that is the paradigmatic job of a “motor vehicle.” But “use” of motor

vehicles would naturally include other acts as well. For example, in

common parlance, we would say that extracting a vehicle from a

ditch is a “use” of a tow truck and putting out a fire is a “use” of a

fire engine. In other words, the fact that transportation may be the

most obvious “use” of a motor vehicle does not mean it is necessarily

the only way a “covered motor vehicle” can be put in use.

     As employed in the statutes, however, the meaning of “use”

may not be so broad as to encompass every possible use because the

scope and meaning of “use” is limited by its context. The word “use”

is not employed in isolation; in both statutes, the word is employed

in the phrase “for a loss arising out of claims for the negligent use of

a covered motor vehicle.” See OCGA § 33-24-51 (b) and OCGA § 36-

92-2 (a).9 The meaning of the word “use” must be considered in the

context of that phrase as well as in the context of the chapter. See

SASS Group, 

 (2) (b) (“When we determine the

meaning of a particular word or phrase in a constitutional provision


     9 See footnote 3.

                                  17
or statute, we consider text in context, not in isolation.” (citation and

punctuation omitted)). See also OCGA § 36-92-1 (definitions).

Scarbrough, however, has not identified any statutory text that

supports a construction excluding any “use” beyond active

transportation, and we see nothing in the chapter that suggests that

“use” has a qualified or narrower meaning than its ordinary

meaning. For example, a “covered” motor vehicle is defined as any

motor vehicle owned, leased, or rented by the local government

entity. See OCGA § 36-92-1 (2) (A), (B). “‘Motor vehicle’ means any

automobile, bus, motorcycle, truck, trailer, or semitrailer, including

its equipment, and any other equipment permanently attached

thereto, designed or licensed for use on the public streets, roads, and

highways of the state.” OCGA § 36-92-1 (6). Notably, although the

General Assembly defined “covered motor vehicle” in a way that

limits the types of vehicles that qualify for a waiver of sovereign

immunity, it did not limit the kinds of uses to which those vehicles




                                   18
could be put.10

      In this case, we conclude that the General Assembly

understood that the word “use” was broad enough to embrace uses

of a motor vehicle that extend beyond mere transportation. If the

General Assembly had meant to limit the meaning of “use” to

actively using a motor vehicle as a vehicle, it could have said so, but

it did not. See Couch v. Red Roof Inns, 

 (1) (729




      10 We note that the General Assembly primarily imposes limitations on

the waiver of sovereign immunity through its definition of the word “claim.” A
“claim” is defined in the chapter as “any demand against a local government
entity for money for a loss caused by negligence of a local government entity,
officer, or employee using a covered motor vehicle while carrying out his or her
official duties or employment.” OCGA § 36-92-1 (1). See also OCGA §§ 36-92-2
(b) (“The sovereign immunity of local government entities for a loss arising out
of claims for the negligent use of a covered motor vehicle is waived only to the
extent and in the manner provided in this chapter and only with respect to
actions brought in the courts of this state. This chapter shall not be construed
to affect any claim or cause of action otherwise permitted by law and for which
the defense of sovereign immunity is not available.”); 36-92-2 (c) (“Local
government entities shall have no liability for losses resulting from conduct on
any part of local government officers or employees which was not within the
scope of their official duties or employment.”); 36-92-3 (a) (“Any local
government officer or employee who commits a tort involving the use of a
covered motor vehicle while in the performance of his or her official duties is
not subject to lawsuit or liability therefor. Nothing in this chapter, however,
shall be construed to give the local government officer or employee immunity
from suit and liability if it is proved that the local government officer’s or
employee’s conduct was not within the performance of his or her official
duties.”).
                                      

) (2012) (“[W]hat a legislature normally does, if it wants to

make sure that readers understand that a word with a broad

ordinary meaning does not include something within that meaning,

is to expressly define that thing out of the category.”). Given the

broad set of responsibilities a local government has, the General

Assembly would have understood that the types of “motor vehicles”

to which this statute would apply would include motor vehicles

“designed or licensed” for purposes beyond active transportation.

After all, this is a statute that allows suit against local governments

for negligent use of government vehicles.

     Applying this understanding of the term “use,” we conclude

that the alleged acts in this case involved the “use” of a “covered

motor vehicle.” McBrayer averred that Scarbrough’s deputies

detained the decedent in their patrol car — a use for which the

vehicle was designed — and then left him prone across the back seat,

restrained by a cobble strap affixed to the patrol car door, during

which time he died, allegedly from injuries sustained during his

arrest. Under the plain language of the statutes at issue, McBrayer

                                  20
has asserted a “use” of the patrol car sufficient to waive sovereign

immunity. Further, “loading” the decedent into the back of the

patrol car was inherently a part of the detention process because the

decedent could not have been detained inside the patrol car without

having been “loaded” inside it by the deputies. Thus, the answers to

the questions we posed when granting certiorari are as follows: In

this case, the “use” of a motor vehicle as provided in OCGA §§ 33-24-

51 (b) and 36-92-2 is not limited by the terms “actively in use” “as a

vehicle.” Further, loading a person into or restraining a person in a

patrol car constitutes a “use” of a patrol car as to which sovereign

immunity is waived under OCGA §§ 33-24-51 (b) and 36-92-2.

     By reading into the statutes the terms “actively” and “as a

vehicle,” the Court of Appeals altered the plain meaning of “use” and

restricted the scope of the local government’s waiver of sovereign

immunity. Therefore, we overrule that court’s precedent construing

“use” of a motor vehicle in OCGA § 33-24-51 (b) and OCGA § 36-92-

2 (a) as being limited to the “active” use of the motor vehicle “as a



                                 21
vehicle.”11

      (e) Scarbrough’s Insurance Policy

      McBrayer argues that, for purposes of waiving sovereign

immunity, the General Assembly’s statutory definition of “use” was

to be determined with reference to the applicable policy of insurance

in effect when the loss allegedly occurred. We disagree. Prior to

2005, a county had “the discretion to purchase liability insurance to

cover damages arising from the use of any motor vehicle” under

OCGA § 33-24-51, which, at that time, provided “a limited waiver of

their governmental immunity to the amount of the insurance

purchased.” Cameron v. Lang, 

 (3) (

)

(2001). “As a result, courts had to analyze the applicable insurance

policy to determine whether the policy covered the particular claim

at issue and thus waived sovereign immunity, and to what limit.”



      11 See, e.g., City of Roswell v. Hernandez-Flores, 

, 853-

854 (

) (2022); McBrayer, 364 Ga. App. at 115 (1); Wingler v. White,

 (1) (

) (2017); Columbus Consolidated Govt.
v. Woody, 

 (

) (2017); Bd. of Commrs. of
Putnam County v. Barefoot, 

 (1) (

)
(2011); Gish v. Thomas, 

 (2) (

) (2010);
Williams v. Whitfield County, 

 (

) (2008).
                                      22
Atlantic Specialty Ins. Co. v. City of College Park, 

(2) (

) (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, 

 (

) (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. 

 In Atlantic Specialty Ins., we

explained that the statutory amendment creating an automatic

waiver of sovereign immunity up to a specified amount necessarily

displaced prior law concerning waivers up to that specified amount:

          [T]he 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,

                                  23
     there is no dispute in this case that [the sheriff’s]
     sovereign immunity was waived up to $700,000. But to
     increase the waiver of sovereign immunity beyond
     $700,000, the analysis remains the same as under the
     pre-2002 law: the court must determine whether the
     [government entity], in its discretion, purchased
     commercial liability insurance in excess of $700,000 that
     covers the claim at issue.

(Emphasis in original.) 

 (2). Likewise, because of the

automatic waiver, whether Scarbrough’s sovereign immunity was

waived up to the monetary limits applicable to this case depends on

whether McBrayer’s complaint asserts a claim pursuant to OCGA

§§ 33-24-51 and 39-92-2 for the negligent use of a covered motor

vehicle.   Consequently,   although the   county   has   purchased

automobile liability insurance in this case, we do not look to

provisions of the county’s insurance policy to determine whether

McBrayer’s complaint asserts a claim for the negligent use of a

motor vehicle for purposes of Scarbrough’s motion for a judgment on

the pleadings.

     Accordingly, we reverse the judgment of the Court of Appeals

and remand the case to that court.


                                24
       Judgment reversed and case remanded. All the Justices concur.




                      Decided October 11, 2023.

       Certiorari to the Court of Appeals of Georgia — 

.

       Webster Law Group, Craig A. Webster, for appellant.

       Williams & Waymire, Terry E. Williams, Jason C. Waymire, for

appellee.




                                 25