The plaintiffs' attorneys lawyers also say the law is on their side, pointing to a statutory waiver of sovereign immunity up to the limits of any additional insurance a municipality buys: In this case, that's $1 million in primary coverage and $4 million in excess coverage.

The appeal stems from a 2016 incident when College Park officers gave chase to a man in a stolen SUV, following it into the city of Atlanta, where it slammed into a car carrying Dorothy Wright and her grandchildren, Cameron Costner and Layla Partridge.

All three were killed; the still-unidentified car thief fled on foot.

Joi Partridge, Wright's daughter and the children's mother, sued College Park in Fulton County State Court along with other family members.  

College Park and its insurer, Atlantic Specialty, moved for summary judgment, arguing it was only liable for up to $700,000.  

State Court Judge Susan Edlein denied the motion, and the Georgia Court of Appeals affirmed that ruling. On Tuesday Atlantic Specialty's lawyer said both lower courts got it wrong. 

"The simple question is whether the city of College Park waived its sovereign immunity with the purchase of coverage," said Lewis Brisbois Bisgaard & Smith partner Seth Friedman. "The simple answer is no."

Friedman argued that the Court of Appeals had rejected "the very same arguments" the plaintiffs were raising in 2019 when they ruled that the city of Statesboro had not waived sovereign immunity for claims arising from the death of a college student beaten by a bouncer at a local bar. 

He noted that that case, captioned Gatto v. City of Statesboro, 353 Ga. App. 178, also involved an Atlantic Specialty policy. 

College Park's policy contained the provision that the carrier had "no duty to pay 'damages' on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you."

Further, it said, "This policy and any coverage associated therewith does not constitute, nor reflect an intent by you, to waive or forego any defense of sovereign immunity and governmental immunity available to any insured, whether based upon statute(s), common law or otherwise, including Georgia Code Section 36-33-1, or any amendments."

That code section provides that a municipality waives sovereign immunity when it purchases insurance which "covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy."

Several justices queried Friedman as to what the policy actually covered and how it complied with Georgia's statutory framework.

"Basically when you buy insurance you waive sovereign immunity," said Justice Nels Peterson, but the subsections in the policy stated otherwise. 

"So it's not really a case about the text of the statutes, it's a question about what coverage this policy affords. Is that correct?" he asked.

"Once you properly understand that subsection, that turns this case into 'What does the policy mean?'" Friedman said. 

Justice Verda Colvin asked whether he was asking the court to rule that the contract trumped the statute.

"The statute is very clear," she said. "It says sovereign immunity is waived, like, 12 times."

Friedman said the policy language is very clear and spells out what is and is not covered.

"This case isn't a close call," he said.  

The Partridges' counsel includes Alwyn Fredericks of Cash Krugler & Fredericks and Darren Summerville and Anna Cross of the Summerville Firm.

Arguing for the plaintiffs, Summerville said the case involved simple statutory interpretation of relevant Georgia law.  

"It is abundantly clear that the purchase of insurance beyond the statutory limit is a waiver of sovereign immunity," he said. 

Nahmias drilled in on how College Park's purchase of $5 million in liability coverage even as its contract specified it was not waiving immunity for auto tort claims squared with the plaintiffs' insistence that it had.  

If a city purchases fire insurance or directors & officers coverage greater than the statutory limits, he asked, does that mean its also liable for auto tort claims up to those limits?

"Insurance is coverage for a particular type of loss," he said, and is "only what you're covered for." 

Justice Charles Bethel wondered whether a city that sought extra coverage for a specific area like garbage trucks would also be obliged to waive sovereign immunity limits for other vehicles like police cars.   

Summerville responded that in such a case a coverage analysis might be appropriate, 

But, he said, the plain language of the statute leaves little room for for interpretation. 

"Our argument is very simple: The intent of the purchaser is irrelevant if it violates the statute," he said. 

So, asked Nahmias, was College Park's contract with Atlantic "an effort to do something illegal?"

"Exactly right," Summerville said.