Rachel and Bobby Joe Pate, appellants, sued Dr. Ivan Caballero and Dr. Brooks Cagle for malpractice and loss of consortium. The doctors answered, claiming sovereign immunity. When appellants sought production of any malpractice insurance covering appellees, appellees sought a protective order based upon OCGA 45-9-1
(c) to prevent discovery of any insurance policies.
The trial court denied appellees' motion for the protective order, and the Court of Appeals reversed upon appellees' interlocutory appeal. Caballero v. Pate, 171 Ga. App. 425 (320 SE2d 197) (1984)
. We granted certiorari to consider whether OCGA 45-9-1
(c) prohibits the discovery of liability insurance policies purchased by a governmental agency for its employees, where they are covered by sovereign immunity. For the following reasons, we reverse the Court of Appeals and answer the question in the negative.
(a) enables state agencies, boards, and other bodies to purchase liability insurance covering "officers, officials, or employees to the extent that they are not immune from liability against personal liability arising out of the performance of their duties or in any way connected therewith." Subsection (c) provides: "The existence of such insurance or indemnification shall not be disclosed or suggested in any action brought against such individual." This statute was adopted in 1977. (Ga. L. 1977, p. 1051, 1.)
The legislature drafted subsection (c) to prevent someone from disclosing or suggesting the existence of the insurance to someone else. 1
We do not see why the legislature would have enacted a statute preventing the state from suggesting to tort plaintiffs the fact that it was insured against any liability. We do see why the legislature, in allowing the purchase of insurance in a new area, would want to reaffirm the old prohibition against the injection of insurance into a trial.
We hold that the prohibition is meant to apply to the party in need of restraint, the plaintiff in a tort case. We thus find that insurance, such as the insurance in the case before us, is subject to the normal rules of discovery. See OCGA 9-11-26
HILL, Chief Justice, dissenting.
I would adopt the opinion and affirm the decision of the Court of Appeals.