Dep't of Labor v. Mcconnell

305 Ga. 812

828 S.E.2d 352

DEPARTMENT OF LABOR

v.MCCONNELL et al.; and vice versa.

S18G1316

S18G1317

Supreme Court of Georgia.

Decided: May 20, 2019

Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Angela Ellen Cusimano, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant in S18G1316.

Scott A. Schweber, SCHWEBER GREEN LAW GROUP, 2002 Summit Blvd., Suite 300, Atlanta, Georgia 30319, Jefferson Madden Allen, COHEN, COOPER, ESTEP & ALLEN, LLC, 3330 Cumberland Boulevard, Suite 600 Atlanta, Georgia 30339, for Appellee in S18G1316.

Roy E. Barnes, THE BARNES LAW GROUP, LLC, 31 Atlanta Street, Marietta, Georgia 30061, Kenneth S. Canfield, DOFFERMYRE SHIELDS CANFIELD KNOWLES, Suite 1600, The Peachtree, 1355 Peachtree Street, Atlanta, Georgia 30309-3269, David J. Worley, EVANGELISTA WORLEY, LLC, 8100A Roswell Road, Suite 100, Atlanta, Georgia 30350, Amy E. Keller, DICELLO LEVITT GUTZLER LLC, 10 N Dearborn St., 11th Floor, Chicago, Illinois 60602, Norman E. Siegel, Barrett J. Vahle, STUEVE SIEGEL HANSON LLP, 460 Nichols Road, Ste. 200, Kansas City, Missouri 64112, Andrew N. Friedman, COHEN MILSTEIN SELLERS & TOLL PLLC, 1100 New York Ave, NW Suite 500, Washington, DC 20005, James Pizzirusso, HAUSFELD LLP, 1700 K Street NW, Suite 650, Washington, DC 20006, John A. Yanchunis, MORGAN & MORGAN COMPLEX LITIGATION GROUP, 201 N. Franklin Street, 7th Fl., Tampa, Florida 33602, Jason Ryan Doss, THE DOSS FIRM, LLC, P.O. Box 965669, Marietta, Georgia 30066, Eric H. Gibbs, GIRARD GIBBS LLP, 505 14th Street, Suite 1110, Oakland, California 94612, Ariana J. Tadler, MILBERG TADLER PHILLIPS GROSSMAN LLP, One Penn Plaza, 19th Floor, New York, New York 10119, William H. Murphy, III, MURPHY FALCON & MURPHY, 1 South Street, 23rd Floor, Baltimore, Maryland 21224, Rodney Keith Strong, GRIFFIN & STRONG, PC, Suite 400, 235 Peachtree Street NE, Atlanta, Georgia 30303, for Neutral Amicus in S18G1316.

Scott A. Schweber, SCHWEBER GREEN LAW GROUP, 2002 Summit Blvd., Suite 300, Atlanta, Georgia 30319, Jefferson Madden Allen, COHEN, COOPER, ESTEP & ALLEN, LLC, 3330 Cumberland Boulevard, Suite 600 Atlanta, Georgia 30339, for Appellant in S18G1317.

Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Angela Ellen Cusimano, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee in S18G1317.

Roy E. Barnes, THE BARNES LAW GROUP, LLC, 31 Atlanta Street, Marietta, Georgia 30061, Kenneth S. Canfield, DOFFERMYRE SHIELDS CANFIELD KNOWLES, Suite 1600, The Peachtree, 1355 Peachtree Street, Atlanta, Georgia 30309-3269, David J. Worley, EVANGELISTA WORLEY, LLC, 8100A Roswell Road, Suite 100, Atlanta, Georgia 30350, Amy E. Keller, DICELLO LEVITT GUTZLER LLC, 10 N Dearborn St., 11th Floor, Chicago, Illinois 60602, Norman E. Siegel, Barrett J. Vahle, STUEVE SIEGEL HANSON LLP, 460 Nichols Road, Ste 200, Kansas City, Missouri 64112, Andrew N. Friedman, COHEN MILSTEIN SELLERS & TOLL PLLC, 1100 New York Ave, NW Suite 500, Washington, DC 20005, James Pizzirusso, HAUSFELD LLP, 1700 K Street NW, Suite 650, Washington, DC 20006, John A. Yanchunis, MORGAN & MORGAN COMPLEX LITIGATION GROUP, 201 N. Franklin Street, 7th Fl., Tampa, Florida 33602, Jason Ryan Doss, THE DOSS FIRM, LLC, P.O. Box 965669, Marietta, Georgia 30066, Eric H. Gibbs, GIRARD GIBBS LLP, 505 14th Street, Suite 1110, Oakland, California 94612, Ariana J. Tadler, MILBERG TADLER PHILLIPS GROSSMAN LLP, One Penn Plaza, 19th Floor, New York, New York 10119, William H. Murphy, III, MURPHY FALCON & MURPHY, 1 South Street, 23rd Floor, Baltimore, Maryland 21224, Rodney Keith Strong, GRIFFIN & STRONG, PC, Suite 400, 235 Peachtree Street NE, Atlanta, Georgia 30303, for Neutral Amicus in S18G1317.

J. Henry Walker, IV, KILPATRICK STOCKTON LLP, 1100 Peachtree Street, Suite 2800, Atlanta, Georgia 30309, for Amicus Appellee in S18G1317.

John Phillip Jett, KILPATRICK STOCKTON LLP, 1100 Peachtree Street, Suite 2800, Atlanta, Georgia 30309, for Amicus Appellee in S18G1317.

Boggs, Justice.

We granted certiorari in these cases to determine, first, whether the Court of Appeals erred in holding that the State has waived sovereign immunity under the Georgia Torts Claims Act ("GTCA"), OCGA § 50-21-20 et seq., for Thomas McConnell's tort action and, second, whether the Court of Appeals erred in holding that McConnell's complaint failed to state a claim.¹ After review, we agree with the Court of Appeals and affirm.

1. The underlying facts are essentially undisputed. In September 2012, the Georgia Department of Labor created a spreadsheet containing the name, social security number, home telephone number, email address, and age of 4,757 individuals over the age of 55 in Cherokee, Cobb, and Fulton counties who had applied for unemployment benefits or other services administered by the Department, including McConnell. Almost a year later, a Department employee inadvertently sent an email with the spreadsheet attached to approximately 1,000 recipients without the permission of the individuals whose information was included in the spreadsheet.

On January 17, 2014, McConnell filed a complaint, which he later amended on March 12, 2014, against the Department on behalf of himself and a proposed class of all individuals whose information was contained in the spreadsheet, alleging negligence, breach of fiduciary duty, and invasion of privacy by public disclosure of private facts. The complaint alleged that, as a result of the Department's negligent disclosure of McConnell's and the other proposed class members' personal information, they were required to place freezes and alerts with credit reporting agencies, close or modify financial accounts, and closely review and monitor their credit reports and accounts for unauthorized activity. The complaint further alleged that McConnell and others whose information had been disclosed incurred out-of-pocket costs related to credit monitoring and identity protection services and suffered adverse impacts to their credit scores related to the closure of credit accounts. In addition, the complaint alleged that the affected individuals experienced, and would continue to experience, fear, upset, anxiety, and injury to peace and happiness, as the disclosure of their personal identifying information provided the material necessary to facilitate identity theft and unauthorized charges on their credit and bank accounts. The complaint did not allege that any identity theft or resulting unauthorized charges actually had occurred. Nor did the complaint allege that the personal identifying information had been disclosed by or for criminal conduct.

The Department filed a motion to dismiss, which the trial court granted, ruling that sovereign immunity barred the lawsuit because the GTCA did not waive the State's immunity for the type of "loss" that McConnell alleged. OCGA § 50-21-22 (3).² The trial court also held that each count of the complaint failed to state a claim upon which relief could be granted. See OCGA § 9-11-12 (b) (6).

McConnell appealed, and the Court of Appeals affirmed, pretermitting a decision on sovereign immunity and addressing only the trial court's ruling that each count of the complaint failed to state a claim. See McConnell v. Dept. of Labor , 337 Ga. App. 457, 787 S.E.2d 794 (2016). We granted McConnell's petition for certiorari to decide whether the Court of Appeals erred in considering the merits of McConnell's claims without deciding first whether sovereign immunity barred the lawsuit. We held that the Court of Appeals did err in this regard, and we vacated the Court of Appeals' judgment and remanded the case with direction to make the threshold determination. See McConnell v. Dept. of Labor , 302 Ga. 18, 19, 805 S.E.2d 79 (2017).

On remand, the Court of Appeals first held that the trial court erred in concluding that sovereign immunity barred McConnell's claims. See McConnell v. Dept. of Labor , 345 Ga. App. 669, 670-675 (1), 814 S.E.2d 790 (2018) (physical precedent only). On the merits, the Court of Appeals again held that the trial court properly dismissed the complaint for failure to state a claim. See id. at 675-683 (2)–(4), 814 S.E.2d 790(full concurrence as to Div. 2). Both the Department and McConnell filed petitions for certiorari, which we granted. After review, we conclude that the Court of Appeals was correct, and we affirm its holdings.

2. The Department argues that the definition of "loss" set forth in OCGA § 50-21-22 (3) limits the waiver of sovereign immunity in OCGA § 50-21-23 (a) to claims where a plaintiff also has suffered a personal "injury, disease, or death," which the complaint did not allege. We disagree.

The complaint alleged that a Department employee, acting within the scope of his employment, committed the torts of negligence, breach of fiduciary duty, and invasion of privacy against McConnell and the other proposed class members. And OCGA § 50-21-23 (a) says that "[t]he state waives its sovereign immunity for the torts of state ... employees while acting within the scope of their ... employment," subject to the exceptions and limitations set forth in the rest of the GTCA. Thus, absent some express "exception[ ] or limitation[ ] set forth in [the GTCA]," the State waived its sovereign immunity from McConnell's lawsuit. See OCGA § 50-21-23 (a). The Department does not argue that the conduct alleged in the complaint is included in any of the exceptions or limitations listed in OCGA §§ 50-21-24 (1) – (13) and 50-21-24.1.

The Department instead contends that OCGA § 50-21-22 (3) provides an exception or limitation in its definition of "loss." Bu...