                               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/


                                                                       July 15, 2014




In the Court of Appeals of Georgia
 A14A0724. CITY OF HAPEVILLE et al. v. GRADY MEMORIAL DO-038
     HOSPITAL CORPORATION.

      DOYLE , Presiding Judge.

      Grady Memorial Hospital Corporation, d/b/a Grady Health System (“the

Hospital”) filed a complaint against the City of Hapeville and the Police Department

of the City of Hapeville (collectively “the City”), alleging that the City failed to pay

for medical services provided by the hospital to four prisoners in the custody of the

City.1 The City responded, arguing that it was immune from suit. The trial court found

that pursuant to Cherokee County v. North Cobb Surgical Assoc. P.C.,2 the City had


      1
        Based on the procedural posture of this case, we assume that there is no
genuine issue as to whether the City had custody of the prisoners at the time the
hospital rendered treatment.
      2
        221 Ga. App. 496 (471 SE2d 561) (1996) (addressing whether an inmate was
in custody such that the County was liable for his medical expenses under OCGA §
waived sovereign immunity based on OCGA § 42-5-2.3 For the reasons that follow,

we affirm.

      The brief record before us reveals that the City transported four prisoners to the

Hospital for treatment. The Hospital now seeks payment from the City in the amount

of $81,694.74 for the cost of the services rendered to those prisoners. The City filed

a motion to dismiss, arguing, inter alia, that it was immune from suit. In denying the

City’s motion to dismiss, the trial court found that the Hospital “is suing for payment

of services rendered. This puts the instant case in line with Cherokee County v. North

Cobb Surgical Assoc. P.C., and removes the matter from sovereign immunity

analysis. Alternatively, the legislature has waived the [City’s] sovereign immunity by

statute.” The City appeals this ruling, arguing that the trial court erred by finding that

it was not immune from suit. We review this ruling under the de novo standard of

review.4


45-5-2), citing Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App.
530, 532 (428 SE2d 374) (1993). But see Nolan v. Cobb County, 141 Ga. 385 (81 SE
124) (1914).
      3
          See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).
      4
       See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,
294 Ga. 593, 596 (2) (755 SE2d 184) (2014); City of Atlanta v. Mitcham, 325 Ga.
App. 481, 483 (751 SE2d 598) (2013) (physical precedent only), cert. granted May

                                            2
      1. The Hospital maintains that the trial court correctly determined that OCGA

§ 42-5-2 provides a waiver of sovereign immunity in this case, which allows it to

pursue its claims that the City has breached a duty to pay for the medical services

rendered to the prisoners by the Hospital.

      OCGA § 42-5-2 (a) states that

      [e]xcept as provided in subsection (b) of this Code section, it shall be
      the responsibility of the governmental unit, subdivision, or agency
      having the physical custody of an inmate to maintain the inmate,
      furnishing him food, clothing, and any needed medical and hospital
      attention; to defend any habeas corpus or other proceedings instituted by
      or on behalf of the inmate; and to bear all expenses relative to any
      escape and recapture, including the expenses of extradition. Except as
      provided in subsection (b) of this Code section, it shall be the
      responsibility of the department to bear the costs of any reasonable and
      necessary emergency medical and hospital care which is provided to any
      inmate after the receipt by the department of the notice provided by
      subsection (a) of Code Section 42-5-50 who is in the physical custody
      of any other political subdivision or governmental agency of this state,
      except a county correctional institution, if the inmate is available and
      eligible for the transfer of his custody to the department pursuant to
      Code Section 42-5-50. Except as provided in subsection (b) of this Code
      section, the department shall also bear the costs of any reasonable and



19, 2014.

                                         3
      necessary follow-up medical or hospital care rendered to any such
      inmate as a result of the initial emergency care and treatment of the
      inmate. With respect to state inmates housed in county correctional
      institutions, the department shall bear the costs of direct medical
      services required for emergency medical conditions posing an
      immediate threat to life or limb if the inmate cannot be placed in a state
      institution for the receipt of this care. The responsibility for payment
      will commence when the costs for direct medical services exceed an
      amount specified by rules and regulations of the Board of Corrections.
      The department will pay only the balance in excess of the specified
      amount. Except as provided in subsection (b) of this Code section, it
      shall remain the responsibility of the governmental unit having the
      physical custody of an inmate to bear the costs of such medical and
      hospital care, if the custody of the inmate has been transferred from the
      department pursuant to any order of any court within this state. The
      department shall have the authority to promulgate rules and regulations
      relative to payment of such medical and hospital costs by the
      department.


      In Macon-Bibb Co., this Court summarily determined that OCGA § 42-5-2

constituted an express waiver of sovereign immunity by the State.5 This Court held,

“[t]he county’s immunity was waived by the legislature’s enactment of OCGA §

42-5-2, and its responsibility to pay all medical and hospital expenses may not be



      5
          See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).

                                          4
avoided by the defense of sovereign immunity.”6 No further explanation of what part

of OCGA § 42-5-2 acts as an “express” waiver of sovereign immunity appears in the

opinion.

      The interpretations of this Code section, however, vary throughout our case law

depending on whether the party seeking to establish a waiver is an inmate or a

medical provider.7 In cases involving an inmate’s claim against the State or its

subdivision for failure to provide medical care, this Court has taken the view contrary

to Macon-Bibb Co. and held that OCGA § 42-5-2 did not constitute an express waiver

in such cases.8

      As recently explained by the Supreme Court in Ga. Dept. of Natural Resources

v. Center for a Sustainable Coast, Inc.,9 if the plain language of a statute “does not



      6
          Id.
      7
        See Mitcham, 325 Ga. App. at 483; Graham v. Cobb County, 316 Ga. App.
738, 742 (1) (b) (i) (730 SE2d 439) (2012); Gish v. Thomas, 302 Ga. App. 854,
862-864 (4) (691 SE2d 900) (2010); Cantrell v. Thurman, 231 Ga. App. 510, 513-514
(3) & (4) (499 SE2d 416) (1998); Macon-Bibb County Hosp. Auth., 207 Ga. App. at
532 (3).
      8
       See Mitcham, 325 Ga. App. at 483; Graham, 316 Ga. App. at 742 (1) (b) (i);
Gish, 302 Ga. App. at 862-864 (4); Cantrell, 231 Ga. App. at 513-514 (3) & (4).
      9
          294 Ga. at 603 (2).

                                          5
provide for a specific waiver of governmental immunity nor the extent of such

waiver, . . . no waiver can be implied or shown.”10 That is not to say that an act must

      use the phrase, ‘the [S]tate waives its sovereign immunity’ [in order for
      an express waiver to occur. If] a legislative act creates a right of action
      against the [S]tate which can result in a money judgment against the
      [S]tate treasury, and the [S]tate otherwise would have enjoyed sovereign
      immunity from the cause of action, the legislative act must be
      considered a waiver of the [S]tate’s sovereign immunity to the extent of
      the right of action — or the legislative act would have no meaning.11


      Thus, the Court in Macon-Bibb Co. determined that the Legislature’s

enactment of OCGA § 42-5-2 containing the requirement that a county or the

Department of Corrections reimburse a medical provider created a right to a money

judgment on behalf of the medical provider, thereby waiving sovereign immunity.

This Court has, on the other hand, determined that such a right of action was not

created by the Legislature’s enactment of the statute when it deals with claims by

inmates against prison officials for failure to provide medical care.12 Moreover, had

      10
           Id. at 603, construing OCGA § 12-5-245.
      11
       Williamson v. Dept. of Human Resources, 258 Ga. App. 113, 115 (1) (572
SE2d 678) (2002).
      12
        We note that prisoners may maintain actions for this type of claim via 28
U.S.C. § 1983 for violations of the Eighth Amendment Right to medical care. See

                                          6
the Legislature disagreed with or desired to clarify the conclusion of this Court

regarding the waiver of sovereign immunity by OCGA § 42-5-2 as stated in Macon-

Bibb County, it could have done so in its overhaul of OCGA § 42-5-50 et seq., which

occurred in 2009.13

      2. Our inquiry is not at an end, however, because the City is a municipality, and

therefore, treated differently in terms of immunity than other subdivisions,

departments, or agencies of the State.14 Generally speaking, “State law relating to the

sovereign immunity of municipalities is codified in OCGA § 36-33-1 et seq.”15 And




Gish, 302 Ga. App. at 863 n. 10.
      13
         See Ga. L. 2009, p. 136, § 1A/HB 464. See, e.g., OCGA § 42-4-105
codifying immunity for regional jail authorities.
      14
         See also Ga. Const. of 1983, Art. IX, Sec. II, Par. IX, “[t]he General
Assembly may waive the immunity of counties, municipalities, and school districts.”
See City of Thomaston v. Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994) (holding that
under the 1991 amendment to Ga. Const. of 1983, Art. I, Sec. II, Par. IX
municipalities are not the State or its departments and agencies).
      15
        Precise, 261 Ga. at 211 (1). Generally, municipal immunity under OCGA §
36-33-1 provides a waiver of sovereign immunity if the municipal corporation
neglects to perform or improperly or unskillfully performs a ministerial duty, i.e., a
proprietary rather than governmental function. See Mitcham, 325 Ga. App. at 483.

                                          7
a review of case law has revealed no case directly determining that the waiver found

in OCGA § 42-5-2 for counties and the State also applies to municipal corporations.16

      Looking to the Code, Chapter 5 of Title 42 addresses “Correctional Institutions

of State and Counties,” while Chapter 4 of Title 42 addresses “Jails” and specifically

includes the police chief of a municipal corporation in its defined list of jailers.17 And

OCGA § 42-4-1 et seq. contains a separate section addressing medical charges for

emergency medical care services provided to inmates by medical facilities, and this

subsection includes “municipal and county jail” in its definition, thereby making

some provisions contained in OCGA § 42-5-2 redundant as applied to municipal

corporations when read together with Title 42 Chapter 4.18 Moreover, the Chapter




      16
         See Mitcham, 325 Ga. App. at 483; Johnson v. City of Carrollton, 249 Ga.
173, 177 (4) (288 SE2d 565) (1982) (in dicta stating that the former version of OCGA
§ 42-5-2 made it the responsibility of a city to pay all medical and hospital expenses
for a prisoner).
      17
         See OCGA § 42-4-1 (b). OCGA § 42-5-1 et seq., on the otherhand, generally
defines the State actors as the Department of Corrections or county facilities acting
on behalf of the Department and does not specifically include municipal corporations
in most subsections.
      18
           See OCGA § 42-4-15 (a) (2).

                                            8
contains a separate section imposing requirements for municipal jails regarding

sanitation, health requirements, and medical treatment generally.19

        Nevertheless, while there seems to be some distinction made by the Legislature

in its treatment of municipal jailers and county jailers, OCGA § 42-5-2 (b)

specifically covers inmates to whom OCGA § 42-4-1 et seq. applies, thereby

including inmates held by municipal corporations. Accordingly, we conclude that the

waiver of sovereign immunity as to medical providers alleging claims against county

or State jailers as stated in Macon-Bibb County also applies to municipal jailers, and

therefore, we affirm the trial court’s denial of summary judgment based on our

determination that the Legislature included municipal corporations in its waiver of

sovereign immunity pursuant to OCGA § 42-5-2.20

        3. The Hospital’s motion for attorney fees on the basis that the City instituted

a frivolous appeal is hereby denied.

        Judgment affirmed. Miller, J. concurs. Dillard, J., concurs in the judgment

only.

        19
             See OCGA § 42-4-32.
        20
          “[W]e will affirm a trial court’s denial of a motion for summary judgment if
it is right for any reason.” Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325)
(2010).

                                            9
 A14A0724. CITY OF HAPEVILLE et al. v. GRADY MEMORIAL

       HOSPITAL CORPORATION.



      DILLARD, Judge, concurring in judgment only.

      I concur in judgment only because I do not agree with all that is said in the

majority opinion. As such, the majority’s opinion decides only the issues presented

in the case sub judice and may not be cited as binding precedent. See Court of

Appeals Rule 33(a).
