                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                 November 17, 2014




In the Court of Appeals of Georgia
 A14A0887. DEPARTMENT OF TRANSPORTATION v. JARVIE DO-045
     et al.

      DOYLE, Presiding Judge.

      The Georgia Department of Transportation (“DOT”) appeals from the denial

of its motion to dismiss a lawsuit filed by the surviving children of William Jarvie,

who died as a passenger in a collision with a construction vehicle on Interstate 95.

The DOT contends that the trial court erred by ruling that it was not entitled to

sovereign immunity, arguing that the licensing powers exception to the waiver of

immunity under the Georgia Tort Claims Act (“GTCA”) prohibits liability for the

DOT’s approval of a construction methodology proposed and designed by an

independent contractor. For the reasons that follow, we reverse.
       “We review de novo a trial court’s denial of a motion to dismiss based on

sovereign immunity grounds, which is a matter of law. However, factual findings by

the trial court in support of its legal decision are sustained if there is evidence

authorizing them.”1

       The record shows that in 2007, the DOT awarded a contract to Plant

Improvement Company, Inc., d/b/a Seaboard Construction Company (“Seaboard”)

to act as the general contractor for a road-widening project on Interstate 95. The

project involved installing large quantities of aggregate rock to construct the road

bed, so Seaboard submitted a written request for permission from the DOT to

stockpile aggregate material in the highway median. The DOT responded in a letter

giving Seaboard permission to construct a stockpile area subject to certain conditions,

including that Seaboard submit a traffic control plan for DOT approval. Although the

traffic control plan has not been located during this litigation, it is undisputed that the

DOT ultimately approved Seaboard’s request to stockpile the material in the median.

       The plaintiffs allege that in April 2009, Jarvie was a passenger in a vehicle

traveling in the left lane on Interstate 95 when the vehicle collided with a dump truck


       1
       (Punctuation omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190,
193 (718 SE2d 55) (2011).

                                            2
entering the highway from the median at the material storage area. The dump truck

was driven by Jeffrey Wallace, an operator working for Flo Jo, a subcontractor of

Seaboard. The plaintiffs sued Wallace, Flo Jo, Seaboard, and the DOT for each

party’s role in causing Jarvie’s death. With respect to the DOT, the plaintiffs allege

that the DOT negligently designed, constructed, and maintained the construction

vehicle access and egress to the interstate median. In particular, the complaint alleges

that the stockpile site lacked certain safety features such as acceleration or

deceleration lanes for construction vehicles, dust control measures, proper warning

signs, adequate field monitoring, and appropriate operating hours.

      After filing an answer and conducting discovery, the DOT moved to dismiss

the complaint on sovereign immunity grounds. Following a hearing, the trial court

denied the motion in a one-sentence order, giving rise to this appeal.2

      “Under Georgia law . . . sovereign immunity has constitutional status, and that

immunity may be waived only by an act of the General Assembly or by the




      2
        The trial court’s denial of the DOT’s motion is directly appealable pursuant
to the collateral order doctrine. See Bd. of Regents &c. Ga. v. Canas, 295 Ga. App.
505, 507 (1) (672 SE2d 471) (2009).

                                           3
Constitution itself.”3 “[A]ny waiver of sovereign immunity must be established by the

party seeking to benefit from that waiver,”4 and the plaintiffs here rely on the GTCA.5

      In the GTCA, the General Assembly has waived the State’s immunity “for the

torts of [S]tate officers and employees while acting within the scope of their official

duties or employment . . . [but] only to the extent and in the manner provided in [the

GTCA].”6 Pertinent to this case, the GTCA contains the following exceptions to the

waiver of immunity:

      The [S]tate shall have no liability for losses resulting from: . . .


              (8) Inspection powers or functions, including failure to make an
      inspection or making an inadequate or negligent inspection of any
      property other than property owned by the state to determine whether
      the property complies with or violates any law, regulation, code, or
      ordinance or contains a hazard to health or safety;




      3
          Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 472 (2) (759 SE2d 804)
(2014).
      4
      (Punctuation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 309 (1) (756
SE2d 569) (2014).
      5
          OCGA §§ 50-21-20 to 50-21-37.
      6
          OCGA § 50-21-23 (a) & (b).

                                           4
              (9) Licensing powers or functions, including, but not limited to,
      the issuance, denial, suspension, or revocation of or the failure or refusal
      to issue, deny, suspend, or revoke any permit, license, certificate,
      approval, order, or similar authorization; [or]


              (10) The plan or design for construction of or improvement to
      highways, roads, streets, bridges, or other public works where such plan
      or design is prepared in substantial compliance with generally accepted
      engineering or design standards in effect at the time of preparation of the
      plan or design. . . .7


      Here, the plaintiffs’ theory of the DOT’s liability is, in essence, that the DOT

negligently allowed Seaboard to design, install, and use a dangerous stockpile area

in the interstate median. As an initial matter, we note that the GTCA’s waiver of

immunity does not include torts committed by independent contractors,8 so the DOT

is not subject to suit for the conduct of its contractors, such as negligently designing

the stockpile area’s traffic plan or negligently driving the truck which caused Jarvie’s

death. The DOT’s role here amounted to approving Seaboard’s request to stockpile

      7
          (Emphasis supplied.) OCGA § 50-21-24.
      8
       See OCGA § 50-21-22 (7) (“‘[S]tate officer or employee’ . . . does not include
an independent contractor doing business with the state.”). See also Johnson v. Ga.
Dept. of Human Resources, 278 Ga. 714, 717 (2) (606 SE2d 270) (2004) (“The
Georgia General Assembly has spoken by removing from the pool of State employees
covered by the [GTCA] independent contractors. . . .”).

                                           5
the material in the median and monitoring compliance with the conditions of that

approval.

      With respect to approving the stockpile area and traffic plan,9 this case is

analogous to Reidling v. City of Gainesville.10 In that case, the DOT designed a

parkway construction project and oversaw its construction by an independent

contractor.11 The contractor responsible for disposal of excess fill material asked the

DOT if it could dispose of fill material on other property owned by the city. The

request was ultimately approved, and a large amount of fill material was deposited

on the property. After some time, a severe rain storm inundated the area with rain, and

the newly elevated disposal site no longer functioned as a flood plain for a nearby

creek, allegedly causing flooding on residential property. The property owners sued

the DOT. This Court held that immunity was waived for a negligent design claim



      9
         The plaintiffs argue that because the traffic plan has not been located there is
a fact question as to whether the traffic control plan met engineering and other
applicable standards such that immunity is waived under OCGA § 50-21-24 (10). But
even if the plan was deficient, this does not change the nature of the DOT’s conduct,
which was to approve the plan created by Seaboard. Such approval is within the
licensing powers exception to immunity under OCGA § 50-21-24 (9).
      10
           280 Ga. App. 698, 703 (1) (634 SE2d 862) (2006).
      11
           See id. at 699-700.

                                           6
because there was evidence the DOT failed to meet generally accepted engineering

and design standards when it designed the project without any disposal site.12 But the

Court also held that, pursuant to OCGA § 50-21-24 (9), the DOT maintained

immunity for claims that it negligently approved the disposal site.13

      Here, the plaintiffs’ claim is predicated on the stockpile area itself, not the

design of the project as a whole. The plaintiffs’ expert witness, a former DOT project

engineer, reviewed the project and stated that he had no criticisms of the overall

design plans on the project. Instead, his critique focused on the stockpile plan itself.

With respect to that plan, it is undisputed that Seaboard (not the DOT) was

responsible for the design and construction of the stockpile plan. The stockpile

location was proposed by Seaboard after the design process to save time and to “help

coordinate the heavy rail movements which will be required to receive this amount

of [road construction] material.” Thus, the DOT’s role was limited to reviewing and

approving the stockpile location and traffic plan designed and proposed by Seaboard.




      12
           See id. at 702-703 (1). See also OCGA § 50-21-24 (10).
      13
           See Reidling, 280 Ga. App. at 703 (1).

                                           7
Accordingly, pursuant to OCGA § 50-21-24 (9), the DOT is immune from liability

resulting from the decision to approve the stockpile plan.14

      The plaintiffs argue that the DOT’s on-site monitoring of the construction

operations, including at least one instance of penalizing Seaboard for crossing the

median in an unapproved location , amounts to inspection of State property not

covered by the inspection powers exception.15 But the conduct in this case amounts

to oversight of construction activities for purposes of administering the contract, and

it does not amount to an inspection of State property for regulatory compliance or

safety hazards as contemplated by the language of OCGA § 50-21-24 (8). Absent a

clear legislative directive, we decline to extend the waiver of sovereign immunity to




      14
         See Dept. of Transp. v. Kovalcik, 328 Ga. App. 185, 190-191 (1) (b) (761
SE2d 584) (2014) (“to the extent that any of the [plaintiffs’] claims are predicated on
the DOT’s improper authorization of the plans or the project, the DOT is immune”);
Reidling, 280 Ga. App. at 703 (1). We find the factual scenario before us distinct from
that in Kovalcik, which involved inspecting a completed state roadway project with
an allegedly hazardously designed curb and left turn lane. Here, the DOT’s relevant
on-site conduct was monitoring the method of construction as previously approved.
      15
        Compare Magueur v. Dept. of Transp., 248 Ga. App. 575, 577 (547 SE2d
304) (2001) (DOT immune for negligently inspecting construction plans and
construction site on county road project).

                                          8
include independent contractors’s conduct16 even if a State actor in some way

attempts to ensure that contractors are operating safely on a State-approved project.

      We emphasize that our conclusion is premised on the fact that the plaintiffs’

claims are not based on a failure to detect during a project inspection a hidden defect

or a deviation from approved plans or regulatory standards. Rather, the plaintiffs’

claims arise from the obvious risks associated with the decision to locate the stockpile

in the median. “Nomenclature notwithstanding, the substance of a claim must be

considered, and a party cannot do indirectly what the law does not allow to be done

directly.”17 The plaintiffs’ seek to recover for the DOT’s decision to allow stockpiling

in the median. Whether that was a good or bad decision, the DOT’s conduct in this

case falls within the exception to the immunity waiver in the GTCA.18


      16
       The plaintiffs raise no issue regarding the independent contractor status of
Seaboard or its subcontractors.
      17
        (Punctuation omitted.) Sommers Oil Co. v. Ga. Dept. of Agriculture, 305 Ga.
App. 330, 332 (699 SE2d 537) (2010) (State agency is immune from suit predicated
on State employee’s collusion in fraudulent inspection of fuel pumps).
      18
        See Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 266 (2) (644 SE2d
290) (2007) (physical precedent only) (“the [licensing powers] exception grants broad
immunity for losses resulting from virtually any action the State DOT could take
regarding the authorization” to install a traffic light); Dept. of Transp. v. Bishop, 216
Ga. App. 57, 58 (1) (453 SE2d 478) (1994) (DOT immune from claim arising from
approval of permit to build decorative wall).

                                           9
Judgment reversed. Miller and Dillard, JJ., concur.




                                 10
