concurring:
I concur in the result, join all of the majority opinion, and write separately to answer the dissenting part of the other separate opinion, which I will refer to as the dissenting opinion.
All of the judges on this panel agree that the voluntary establishment of an insurance trust fund for state employees does not make a state the real party in interest for Eleventh Amendment purposes. Judge Black and I agree that this panel is bound by the result and the at least implicit holdings in Hobbs v. Roberts, 999 F.2d 1526 (11th Cir.1993), which the dissenting opinion correctly describes as “a recently decided case in which the underlying facts are virtually the same as in this case.”
The judges of this panel are in disagreement over whether Hobbs should stand or should be taken en banc and changed. I believe that Hobbs was correctly decided; Judge Roney thinks it was not; and Judge Black in her majority opinion has expressed no view on the subject. The underlying issue is whether the Georgia law governing the state law defenses of sovereign immunity and official immunity controls the federal question of whether the Eleventh Amendment bars such a suit from federal court.
As I understand it, the dissenting opinion’s conclusion that state law governs the Eleventh Amendment issue is based upon the following syllogism: 1) under Georgia law a damages suit against state employees for discretionary acts within the scope of their employment (“work-related torts”) is deemed to be an official capacity suit for purposes of the state law defenses of sovereign immunity and official immunity; 2) under the Eleventh Amendment a damages suit against state employees in their official capacity is deemed to be against the state and is barred; 3) therefore, a damages suit against employees of the State of Georgia for work-related torts is barred by the Eleventh Amendment. The error is not in the two explicit premises, which are true as far as they go. The error is in the implicit premise, or assumption, that the Georgia law about official capacity as it relates to the state law defenses controls the *1579federal question about official capacity as it relates to the Eleventh Amendment. It does not.
None of the Georgia decisions cited in the dissenting opinion purport to address any issue involving the Eleventh Amendment, which is purely federal law with no application in any state court. Even if the Georgia courts attempted to propound Eleventh Amendment law, we would not be bound .by any of their pronouncements on the subject. Eleventh Amendment questions can only arise in and be decided by federal courts, a truism that applies as much in diversity cases as in any others. The Georgia courts do sometimes apply the same label — “official capacity” — to describe a suit barred by the state law doctrine of official immunity,1 that we sometimes apply to describe a type of suit barred by the Eleventh Amendment. But similarity of labels does not mean similarity of content.
In Georgia law, an “official capacity” lawsuit against a public employee is simply one that arises out of the employee’s official duties. For example, Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980), involved a lawsuit against a principal who had allegedly negligently allowed a mat to be placed at a door of the school, causing a student to slip and fall. The Georgia Supreme Court concluded that the suit was one against the principal in his official capacity, because it arose: “solely because of the position he held and the duties imposed upon him as a result of his position. Indeed, the act complained of could only have been done in the official capacity of defendant.” 264 S.E.2d at 880. A suit arising out of the work-related duties of a Georgia public employee is usually barred by the doctrine of official immunity. Thus, at least in this area of Georgia law, “official capacity” is a term used to describe the nature of the cause of action. If the cause of action arises out of the defendant employee’s work-related acts it is an “official capacity” lawsuit, and the employee is ordinarily immune from liability. That is Georgia law.
In Eleventh Amendment jurisprudence, on the other hand, the term “official capacity” means something different. It is used to describe a lawsuit against a public official or employee in which the governmental employer is the real party in interest, meaning in the context of damages, that the plaintiff is seeking to collect from the governmental entity or unit which employs the individual defendant. The Supreme Court has explained what “official capacity” means in federal jurisprudence:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. [Brandon v. Holt, 469 U.S. 464, 471-472, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985).] It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.
Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (footnote omitted). Because the Eleventh Amendment bars from federal court an action seeking money damages from a state, a damages suit against state officials or employees in their official capacities, as that term is defined in the federal decisions, is also barred. E.g., Carr v. City of Florence, *1580916 F.2d 1521, 1524 (11th Cir.1990) (holding that “lawsuits against a state official in his or her official capacity are suits against the state [for Eleventh Amendment purposes] when the state is the real, substantial party in interest,” and “the state is considered the real party in interest because an award of damages would be paid by the state.” (internal quotation omitted)); Free v. Granger, 887 F.2d 1552, 1557 (11th Cir.1989) (holding that a cause of action against sheriffs in their personal capacities is not barred by the Eleventh Amendment, but that an identical cause of action against sheriffs in their official capacities is barred by the Amendment, “because any damage award would be paid out of the state treasury, an impermissible occurrence under our constitutional scheme”).
Thus, Georgia law applies the “official capacity” label to lawsuits against public employees involving work-related torts, and such lawsuits are ordinarily barred by the state law defense of official immunity, regardless of whether they seek to collect from the state. By contrast, federal law applies the “official capacity” label to lawsuits against public employees that seek to collect damages from a state, and such lawsuits are ordinarily barred from federal court by the Eleventh Amendment. Notwithstanding the homonyms, the law being applied in the two instances is different. In Kentucky v. Graham> the Supreme Court observed that the concept of official-capacity lawsuits “continues to confuse lawyers and confound lower courts.” 473 U.S. at 164, 105 S.Ct. at 3105. The dissenting opinion is an example of that phenomenon. It has confused the term “official capacity” as it relates to Georgia official immunity law with the term “official capacity” as it relates to Eleventh Amendment law.
Of course, this is a diversity case and under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we apply Georgia law to decide the substantive issues. Whether the Georgia law defense of official immunity bars any recovery of damages from the state employee defendants in this case is an Erie -controlled issue. The applicable state law is the Georgia Constitution of 1983, Art. I, § 2, ¶ IX, as interpreted by the Georgia Supreme Court in Martin v. Georgia Dep’t of Public Safety, 257 Ga. 300, 357 S.E.2d 569, 571-72 (1987). The Martin decision authoritatively establishes that in a case such as this one where the state has established an insurance fund to cover work-related judgments against state employees, the state law defenses of sovereign and official immunity are waived to the extent of the insurance coverage. We are bound by Erie to follow the Georgia Supreme Court’s Martin decision, which mandates our holding that the state law defenses of sovereign and official immunity do not bar the judgment in this case. On the other hand, the Erie doctrine neither requires nor permits us to apply state law to federal law issues such as the one involving the Eleventh Amendment. Thus, the dissenting opinion is plainly wrong when it says that, “[b]ecause this suit would be treated under Georgia law as one against the state, it is subject to the proscription of the Eleventh Amendment.” The Eleventh Amendment is not an issue of Georgia law.2
The dissenting opinion also says that the result of Hobbs and this decision is that “Georgia state employees can be sued in their individual capacities in federal court, only by non-citizens of Georgia, and be held personally liable for the judgment when such a suit could not be maintained in Georgia state court” (emphasis in original). The first part of that statement is, of course, correct: absent diversity of citizenship, a state law tort action cannot be brought against Georgians in federal court. However, the second part of the statement is wrong. It is not true that Georgia state employees can be held personally liable for a judgment based upon state tort law in federal court when they could not be held liable in the courts of Georgia. The substantive law of Georgia— including the law of sovereign immunity, offi*1581cial immunity, and any and all other defenses — applies as fully in a diversity action in federal court as it does in the state courts of Georgia.
Each and every one of these state employee defendants would have been subject to exactly the same liability had this case been litigated in state court. The reason is the same reason they were held liable in this federal diversity proceeding: the State of Georgia saw fit to write into its constitution a waiver of sovereign and official immunity to the extent of insurance coverage applicable to the claim. Ga. Const. Art. I, § 2, ¶ IX (1983); Martin v. Georgia Dept. of Public Safety. The decisions of the Georgia Supreme Court on state law are as binding on the trial courts of that state as they are on us, and the Martin decision establishes that the constitutional provision coupled with insurance coverage has waived the official immunity defense, as well as the sovereign immunity defense, to the extent of that insurance coverage. It is undisputed that the state had provided insurance fund coverage for the state employees sued in this case and that the coverage was sufficient for the judgments. Therefore, if this case had been brought in state court, the same result would have obtained — waiver of the official immunity defense and judgment for the plaintiffs. Disparate results would have occurred only if the Georgia courts would have been less faithful to the Georgia Constitution and to the Georgia Supreme Court’s Martin decision than we have been, an assumption we should not make.3
Because it recognizes, or at least assumes, that the result we reach is compelled by the Hobbs result, the dissenting opinion amounts to a call for en banc consideration of this matter. The matter is not en banc worthy for two reasons. First, Hobbs and this decision are correct. Second, the number of cases involved is relatively small. Georgia has amended the waiver of sovereign and official immunity out of its constitution with prospective effect from January 1,1991. See Ga. Const. Art. I, § 2, ¶ IX (Supp.1993); see also Donaldson v. Department of Transp., 262 Ga. 49, 414 S.E.2d 638, 639-42 (1992). Thus, only those diversity of citizenship cases involving work-related torts of Georgia state employees during an eight-year period, which has already passed, are affected by Hobbs and this decision. As to all other cases, it is clear that sovereign and official immunity would be a viable defense in state or federal court.
. In Georgia, “sovereign immunity” applies to protect the state or other governmental entity from suit, while "official immunity” applies to protect the governmental employee. See, e.g., Martin v. Georgia Dept. of Public Safety, 257 Ga. 300, 357 S.E.2d 569, 571 (1987).
. The same Georgia constitutional provision that waives sovereign and official immunity where there is insurance coverage expressly reserves any Eleventh Amendment defense the state has. But there is no such defense to begin with in this case, because the suit against these employees is not one in which the state is a party or a real party in interest. A state cannot "non-waive” into existence an Eleventh Amendment defense where the Amendment itself does not provide one.
. On a somewhat related note, the dissenting opinion questions how this lawsuit could be treated as one against the defendant employees in their individual capacities if the jury was never told that it was such a lawsuit. The answer is that the Eleventh Amendment is not a jury question. The usual function of the jury is to decide whether and how much of a judgment is due under the applicable law and facts, not from what source a judgment against the defendants can be collected. That state employee defendants are being sued in their individual capacities is no more relevant to a jury’s deliberation than is the existence of insurance coverage. It would have been just as improper to inform the jury that the defendants were being sued in their individual capacities, which is true, as it would have been to inform the jury that any judgment would be paid out of the insurance fund, which is also true.