The opinion
Carley, Judge,
dissenting.
In my opinion, appellant-defendant has no viable sovereign immunity defense in the instant cases and its motions were, therefore, correctly denied. Accordingly, I must respectfully dissent.
In seeking to recover against appellant, appellee-plaintiffs rely on Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424 (1) ( 297 SE2d 28 ) (1982). In that case, the Supreme Court clearly and unequivocally held that the “sue and be sued” language of OCGA § 31-7-75 (1) constitutes an express legislative waiver of a county hospital authority’s sovereign immunity. In support of its motions for summary judgment appellant relies upon Self v. City of Atlanta, 259 Ga. 78 ( 377 SE2d 674 ) (1989). In that case, the Supreme Court specifically overruled Medical Center Hosp. Auth. v. Andrews, supra, and a number of its other decisions and held that the “sue and be sued” language should no longer be construed as an express legislative waiver of sovereign immunity. However, appellees’ claims against appellant arose prior to the Supreme Court’s decision in Self v. City of Atlanta, supra. Accordingly, the instant cases would be controlled by the clear and unequivocal holding in Medical Center Hosp. Auth. v. Andrews, supra, unless the decision in Self v. City of Atlanta, supra, is to be given retroactive application. “The issue of non-retroactivity is presented in a case where the principle of law relied upon[, such as the principle of non-wavier of sovereign immunity that is relied upon by appellant in the instant cases,] is one which was established as a new principle of law in a prior decision. [Cit.] A court announces a new principle of law when it . . . overrules clear past precedent such as was done in [Self v. City of Atlanta, supra]. . . .” Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 523 ( 341 SE2d 3 ) (1986), aff’g 176 Ga. App. 70 ( 335 SE2d 873 ) (1985). Thus, the majority’s holding is premised entirely upon the retroactive applicability of Self v. City of Atlanta, supra, and, in my opinion, that premise is incorrect.
As noted, Medical Center Hosp. Auth. v. Andrews, supra, was clear and unequivocal precedent for the legal proposition that appel-lees’ claims are not barred because the “sue and be sued” language of OCGA § 31-7-75 (1) does constitute an express legislative waiver of appellant’s sovereign immunity. Obviously, this clear and unequivocal precedent was relied upon by the legislature. After that decision, the General Assembly never acted to repeal or to modify OCGA § 31-7-75 (1) so as to evince a legislative intent that county hospital authorities were not deemed to have waived sovereign immunity. Compare Na *352 tional Distrib. Co. v. Dept. of Transp., 248 Ga. 451 ( 283 SE2d 470 ) (1981). Likewise, appellant obviously relied upon Medical Center Hosp. Auth. v. Andrews, supra, and the other decisions overruled in Self v. City of Atlanta, supra, because it established a self-insurance fund which would be legally superfluous if its sovereign immunity had not been waived. To give Self v. City of Atlanta, supra, retroactive effect under these circumstances would be inequitable to appellees. It would sanction an ex post facto proscription on appellees’ right to pursue their vested claims against appellant. Likewise, to give Self v. City of Atlanta, supra, retroactive effect under these circumstances would result in an unwarranted windfall to appellant. It would sanction appellant’s ex post facto release from potential liability to patients with vested claims and the expenditure of its self-insurance fund for purposes other than the benefit of those for whom it was created.
Decided March 8, 1991
Rehearing denied March 28, 1991
Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Love & Willingham, Daryll Love, Hezekiah Sistrunk, for appellants (case no. A90A1553).
Davis, Gregory & Christy, Hardy Gregory, Jr., William Q. Bird, for appellee.
Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., for appellants (case no. A90A1814).
England, Weaver & Kytle, J. Melvin England, James W. Kytle, for appellees.
For these reasons, it is my opinion that Self v. City of Atlanta, supra, should be applied prospectively only and that the instant cases are controlled by the clear and unequivocal holding in Medical Center Hosp. Auth. v. Andrews, supra. See Federated Mut. Ins. Co. v. DeKalb County, supra; Financeamerica Corp. v. Drake, 154 Ga. App. 811, 817-820 ( 270 SE2d 449 ) (1980). It follows that appellant has no viable sovereign immunity defense because of the express legislative waiver of that defense, and that I must respectfully dissent to the majority’s reversal of the denial of appellant’s motions for summary judgment.
I am authorized to state that Judge Pope joins in this dissent.