dissenting.
I must dissent. When punitive damages are paid by an insurer rather than a governmental entity, the public policy considerations set forth in MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991) and City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1991) are not present and those cases are not controlling. The only benefit derived in such a case is that the insurer is allowed to avoid its contractual obligation to pay an award of punitive damages.
This appeal arises from an action for medical malpractice, negligence, wrongful death and punitive damages filed by the administrator of the estate of Tandy Key Martin and certain other relatives of Martin against Hosptial Authority of Clarke County d/b/a Athens Regional Medical Center and three nurses, who were employed there during the time Martin was a patient. On June 25, 1989, Tandy Key Martin was admitted as a patient at Athens Regional and underwent brain surgery the next day. Plaintiffs assert that on July 15, 1989, while he was still a patient at Athens Regional, Martin was moved from his bed and allegedly restrained in a chair in his hospital room pursuant to his physician’s orders. Later that day he fell from that chair fracturing his hip, which required surgical repair. Plaintiffs fur*896ther allege that on August 7, 1991 family members came to visit Martin and found his entire body, clothing, bedding and the room covered with several hundred ants. Martin died on August 31, 1991, allegedly as the result of the negligent actions of the defendants.
Pursuant to OCGA §§ 51-12-5 and 51-12-5.1, punitive damages are authorized in medical malpractice actions when there is evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to the consequences. See generally Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759 (386 SE2d 120) (1989), vacated, _U. S.__(111 SC 1298, 113 LE2d 234) (1991), on remand, 261 Ga. 613 (409 SE2d 501) (1991), cert. denied_U. S__(112 SC 1175, 117 LE2d 420) (1992).3 If the facts alleged in the complaint are proved, plaintiffs could show evidence of want of care sufficient to raise the presumption of conscious indifference to the consequences.
The issue of insurance coverage was not presented in MARTA v. Boswell, supra. Any award of punitive damages would have been borne by the taxpayers. Cf. MARTA v. Binns, 252 Ga. 289 (313 SE2d 104) (1984) (holding that MARTA was liable for punitive damages for actions taken in its capacity as a self-insurer). The determinant public policy underlying the decisions in MARTA v. Boswell and City of Newport v. Fact Concerts is that “blameless and unknowing taxpayers” should not be forced to pay for the consequences of official misconduct. When indemnification in the form of insurance exists, as in this case, that policy concern is not present. Rather than a blameless taxpayer bearing the burden, any punitive damages are paid by an insurer who has accepted a premium in exchange for a contractual obligation to pay such damages. In such a case the only benefit derived by not allowing the plaintiff to recover punitive damages is that the insurer receives a windfall by not having to fulfill its contractual obligation. As Justice Weltner correctly noted in a special concurrence in Toombs County v. O’Neal, 254 Ga. 390, 393 (330 SE2d 95) (1985), “[w]hen a public body has purchased liability insurance, there is no necessity for the protection which sovereign immunity4 provides to the public. Conversely, the insurer, as a private, for-profit entity, should not be accorded the protection of sovereign immunity, which exists for the benefit of the public. Thus, as in this case, when the *897public utility of sovereign immunity has evaporated, that doctrine should not serve to shield what is purely a private interest.”
Decided October 13, 1993 Reconsideration denied November 16, 1993 Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Milton F. Eisenberg II, for appellant. Michael J. Anderson, for appellees.The only other articulated principle underlying the expression of public policy in MARTA v. Boswell is that “ ‘[a] (governmental entity), however, can have no malice independent of the malice of its officials.’ ” MARTA v. Boswell, 261 Ga. at 428 (quoting City of Newport v. Fact Concerts, 453 U. S. at 267). Of course, only people can act with malice aforethought; therefore, that rationale applies equally to all defendants who are not individuals, including private corporations. Yet Georgia law allows recovery of punitive damages from private corporations, such as insurance companies. See generally OCGA §§ 51-12-5 and 51-12-5.1; Federal Ins. Co. v. Nat. Dist. Co., 203 Ga. App. 763 (3) (417 SE2d 671) (1992) (holding Georgia corporation which was held liable for punitive damages could seek indemnity from insurer for such damages). Because Georgia law allows punitive damages to be assessed against defendants who are not natural persons, clearly protection of the public purse is the only justification for not allowing punitive damages to be assessed against governmental entities for their tortious acts. Accord Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992) (holding the authority’s self insurance trust funds, coupled with any existing commercial insurance constitutes liability insurance protection within the meaning of Art. I, Sec. II, Par. IX of the Georgia Constitution and therefore acts as a waiver of sovereign immunity) and Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (2) (424 SE2d 632) (1992) (following Litterilla). The majority opinion allows a private corporation to use the public shield to protect itself from fulfilling a purely private contractual interest. When, as here, taxpayers are not forced to pay for the consequences of official misconduct, public policy considerations should not bar a plaintiff from being able to recover an award of punitive damages.
I am authorized to state that Presiding Judge Beasley and Judge Cooper join in this dissent.
Our Supreme Court noted in both opinions it issued in Hosp. Auth. of Gwinnett County v. Jones that the issue of whether punitive damages are appropriately awarded against a hospital authority had not been raised. 259 Ga. at 759, n. 1 and 261 Ga. at 613, n. 1. Interestingly, the Supreme Court allowed punitive damages to be recovered from the Hospital Authority of Gwinnett County after declaring in MARTA v. Boswell that punitive damages assessed against governmental entities violates Georgia public policy.
As the majority opinion correctly notes, sovereign immunity springs from the same public policy concern of protection of the public purse.