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

                    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


                                                                   February 26, 2016




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

      DOYLE, Chief Judge.

      In City of Hapeville v. Grady Mem. Hosp. Corp.,1 this Court considered

whether OCGA § 42-5-2 constituted a statutory waiver of municipal immunity in

cases in which a health care provider seeks compensation from a municipality for

medical services rendered by the provider to an inmate in the municipality’s custody

at the time of service.

      As we explained in that opinion,




      1
       328 Ga. App. 332 (761 SE2d 871) (2014) (physical precedent only) (“City of
Hapeville I”).
      [this] Court in Macon-Bibb County [Hosp. Auth. v. Houston County,2]
      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.3 . . . [And] 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.4


Based on our analysis of the statutory scheme, we determined

      that the waiver of sovereign immunity as to medical providers alleging
      claims against county or State jailers as stated in Macon-Bibb County
      also applie[d] to municipal jailers, and therefore, we affirm[ed] 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 § 42-5-2.5




      2
          221 Ga. App. 496 (471 SE2d 461) (1996).
      3
          City of Hapeville I, 328 Ga. App. at 335 (1).
      4
          Id. at 335 (2).
      5
          Id. at 336-337 (2).

                                           2
       Thereafter, the City of Hapeville filed a petition for certiorari with the Supreme

Court of Georgia, which that Court granted.6 In the meantime, the Supreme Court

issued its opinion in City of Atlanta v. Mitcham.7 In Mitcham, the Supreme Court

addressed municipal immunity from suit under OCGA § 36-33-1 (b) in cases

involving inmates’ alleged claims of failure to provide adequate medical care. In

reversing this Court’s opinion holding that the municipality had waived sovereign

immunity,8 the Supreme Court explained that this Court had applied the incorrect

analysis and instead should have determined whether the duty to provide medical care

to inmates was a governmental function or a ministerial function.9

       After Mitcham, the Supreme Court remanded this case for consideration in

light of their decision. We note that in this case, neither the parties nor the trial court

addressed the City’s defense of immunity under the rubric of OCGA § 36-33-1.




       6
       See City of Hapeville v. Grady Mem. Hosp. Corp. (Case No. S14C1764;
decided Feb. 16, 2015).
       7
           296 Ga. 576 (769 SE2d 320) (2015).
       8
       See City of Atlanta v. Mitcham, 325 Ga. App. 481 (751 SE2d 598) (2013)
(physical precedent only), rev’d by Mitcham, 296 Ga. at 576.
       9
           See Mitcham, 296 Ga. at 579-582 (2).

                                            3
Accordingly, we vacate our opinion in City of Hapeville I, and we remand the case

to the trial court for further proceedings in light of Mitcham.

      Judgment remanded. Miller, P. J. and Dillard, J., concur.




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