Zurich v Chatham Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 04-13308
Non-Argument Calendar
D. C. Docket No. 03-00099-CV-4
ZURICH INSURANCE COMPANY, subrogated to the rights of James K. Ludwig, Jr. &
Carol C. Ludwig, Plaintiff-Appellant,
versus
CHATHAM COUNTY, GA, Defendant-Appellee.
Appeal from the United States District Court for the Southern District of
Georgia
(JANUARY 28, 2005)
Before BLACK, PRYOR and FAY; Circuit Judges.
This case presents the question of whether or not a Georgia county can be held liable in admiralty for a maritime tort. The district court granted summary judgment to Defendant Chatham County, Georgia, ruling that it was an arm of the State of Georgia, and entitled to sovereign immunity. Moreover, the district court found that Chatham County did not waive its sovereign immunity. Plaintiffs, Zurich Insurance Company, James K. Ludwig, Jr., and Carol Ludwig appealed. We agree that Chatham County is entitled to invoke sovereign immunity, and therefore affirm the district court's grant of summary judgment to the Defendant.
Chatham County owns, operates, and maintains the Causton Bluff Bridge, a drawbridge over the Wilmington River in Georgia, which is part of the Intercoastal Waterway. On October 6, 2002, James K.
Ludwig sailed his vessel on the Intercoastal Waterway, approaching the Causton Bluff Bridge. Mr. Ludwig contacted the bridge operator and requested that the bridge be raised, to allow his vessel
to pass underneath. The bridge tender then raised the spans, but the Northwest span of the bridge drifted down; striking Mr. Ludwig's vessel: The damage to the boat amounted to $137,987.67. Mr.
Ludwig and his wife, Carol, and their insurer, Zurich Insurance Company, sued Chatham County to recover their expenses. Both Chatham County and the Plaintiffs moved for summary judgment. The
district court granted summary judgment to Chatham
County, holding that the County enjoyed sovereign immunity because by acquiring land, constructing, and operating the bridge, the County exercised state powers. Additionally, because the County
had no immunity-waiving insurance, the Plaintiffs could not demonstrate that the county waived that sovereign immunity.
We review a district court's grant of summary judgment de novo, applying the same legal standards used by the district court. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We construe the evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant. See Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).
At issue in this case is the Plaintiffs' ability to sue Chatham County. It is clear that the State of Georgia itself cannot be sued under maritime law based on Eleventh Amendment sovereign immunity. See Maritime Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753 (2002). The same immunity, however, does not extend to counties. [FN1] Rather, common law has carved out a "residual immunity," which would protect a political subdivision such as Chatham County from suit. See Gilbert v. Richardson, 452 S.E.2d 476, 478 (Ga. 1994); Fed. Maritime Comm'n; 535 U.S. at 753 ("the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular, exemplification of that immunity").
FN1. Chatham County is not asserting an Eleventh Amendment immunity defense, which would be inapposite to our holding in Vierling v. Celebrity Cruises, Inc., 339 F.3d 1309 (11th Cir. 2003). In Vierling, we explained that the Broward County Port Authority was not an arm of the state for Eleventh Amendment purposes because Florida law treated it solely as an entity of the county. Florida had no control over the operation of the port facilities, and Port Authority was an unfunded, independent, and self-sufficient enterprise.
In Broward County, Fla. v. Wickman, the former Fifth Circuit determined, in a substantially similar case where the plaintiff's yacht struck an underwater abutment attached to a
county-owned bridge, that "a state and its political subdivisions are immune from process in actions of this character, even in admiralty." 195 F.2d 614, 615 (5th Cir. 1952). [FN2] Wickman
explained that because the county owned the bridge and used power delegated by the state to operate the bridge, then the county enjoyed sovereign immunity from a suit in admiralty.
Id.
FN2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
The Wickman court took care to distinguish itself from Workman v. City of New York, 179 U.S. 552 (1900), a case primarily relied upon by the Plaintiffs here, where the Supreme Court addressed the substantive law of admiralty, and wrote that local law could not preempt federal admiralty law in order to exempt the City of New York from process. As substantive law was not the issue in Wickman, the Fifth Circuit drew a parallel to another Supreme Court decision, Ex Parte State of New York, 256 U.S. 490 (1921), which as part of procedural law, found that sovereign immunity principles prevented a court from exercising jurisdiction over the defendant. 256 U.S. at 500. Although our binding precedent is far from recent, the same principle holds true today: "the immunity of a state from a suit in personam in the admiralty brought by a private person without its consent is clear." J. Ray McDermott & Co., Inc. v. Dept. of High., State of La., 267 F.3d 317 (quoting New York, 256 U.S. at 500).
We note, however, that when a city, county, or other municipal entity is not exercising power delegated from the state, it cannot be sheltered by sovereign immunity. Wickman, 195 F.2d at 615. Therefore, we turn to a decision of this Court in a nearly identical case involving the same bridge, the same county and the same tort. We affirmed, without opinion, the case of Continental Ins. Co. v. Chatham County. Ga., Case No. 04-106610F (11th Cir. 1/14/2004). In Continental, the district court granted summary judgment to Chatham County on grounds of sovereign immunity, and explained that the first line of inquiry should be whether the entity could be deemed a part of the State, because only then may it invoke residual sovereign immunity. In addressing that question, the trial court found Chatham County to be an arm of the State of Georgia because it exercised state power by "acquiring the land and constructing/operating the public highway and bridge in question." See e.g., O.C.G.A. § 32-4-92 (enumerating state's delegation of its powers to county with respect to the operations of a county road system); O.C.G.A. §§ 32-4- 70, 32-4-71 (governing county authority to contract for the construction and maintenance of bridges). Moreover, this Court has held that "sovereign immunity extends to counties, as subdivisions of the state." Kitchen v. CSX Transp., Inc., 6 F.3d 727, 731 (11th Cir. 1993).
The district court in the instant case adopted much of Continental's reasoning, and we agree, as we did in affirming Continental. This case is no different, and, despite Plaintiffs' insistence, the "mere act" of maintaining and operating bridges and roads does not waive a county's sovereign immunity. In Continental, the district court noted Chatham County's lack of immunity-waiving insurance as evidence of non-waiver. Chatham County's insurance policies have not changed since.
Additionally, we previously have found that "the State of Georgia is immune to suit for any cause of action unless sovereign immunity is expressly waived by constitutional provision or statute." Kitchen, 6 F.3d at 731. Chatham County has not so expressly waived its sovereign immunity. Thus, because Chatham County is not attempting to exempt itself from a suit in admiralty via local law, see Workman, nor has it waived sovereign immunity, we AFFIRM the district court's grant of summary judgment for the Defendant Chatham County.
AFFIRMED.
