concurring in part, and dissenting in part:
By the decision in this case and in Hobbs v. Roberts, 999 F.2d 1526 (11th Cir.1993), this Circuit has now created a personal cause of action against individual state employees in favor of out-of-state residents that is not available to Georgia residents. This different substantive result in federal court, a result that could not be obtained in a state courtroom, conflicts with the policy of the federal judiciary that has been faithfully followed since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
I concur in Section B of the Court’s opinion and in the Court’s conclusion that the state’s voluntarily established trust fund does not make the state the real party in interest for purposes of Eleventh Amendment immunity.
I respectfully dissent from an affirmance of the judgment for plaintiffs on the ground that this suit was, in reality, a suit against the defendants in their official capacities. As such, the Eleventh Amendment bars the suit from prosecution in federal court.
*1582I agree with the Court that in eases where it is not clear in what capacity the defendants were sued, the course of proceedings indicates the nature of the liability imposed. Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Hobbs v. Roberts, 999 F.2d 1526 (11th Cir.1993); Lundgren v. McDaniel, 814 F.2d 600, 604 & n. 2 (11th Cir.1987). The nature of the proceedings in this suit, however, clearly indicates that this was an official capacity suit.
This is a diversity suit brought under state tort law. The nature of the suit is dictated by Georgia law. This is not a Section 1983 suit for violation of a federal law or the United States Constitution in which the nature of the suit would be determined by federal law. The plaintiffs allege negligence in the inspection of a road. Every act of negligence alleged was committed by the defendants within the scope of their employment. Plaintiffs do not assert that the defendants acted outside the scope of their employment.
Georgia courts have consistently held that suits against GDOT employees for actions within the scope of their employment are official capacity suits. Donaldson v. Dept. of Transp., 262 Ga. 49, 414 S.E.2d 638, 642 (1992) (“Insofar as Durrence, the DOT employee sued here, may be sued for discretionary acts taken within the scope of his duties as an employee of the DOT, he is protected by official immunity.... [a]n action against a DOT employee for discretionary acts or omissions for which the employee is protected by official immunity must be brought as an action against the DOT.”); Price v. Dept. of Transp., 257 Ga. 535, 361 S.E.2d 146, 148 (1987) (“the claim against the employees of DOT here is in reality a claim against the DOT. The allegations of negligence relate to acts or omissions requiring discretion and judgment. This then is a claim against the state, or more directly its department, DOT.”); Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878, 879 (1980) (“where an officer or agent of the state is sued in his official capacity or where such officers are sued for acting in areas where they are vested with discretion and empowered to exercise judgment in matters before them” it is a suit against the state). In Hennessy, the court goes on to state that the official is given immunity from liability “provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” Id. 264 S.E.2d at 880. There were no such allegations in this case.
These cases make clear that a suit for negligence against the individual GDOT employee acting within the scope of his employment is equivalent to a suit against the state. The reason the Georgia courts treat cases such as this as claims against the state should be obvious. The building and maintenance of roads is a corporate responsibility. No individual maintains the state roads. Inspectors do not repair roads. Only the official actions of each person in the line of command can result in the proper or improper maintenance of roads. There was no action any separate defendant could have taken, outside of the official work he was employed to do, that would have any effect on the condition of the road at the time of this accident. What the defendants did, they did for the state agency that is ultimately responsible for the condition of the roads. Every act of negligence alleged was an administrative decision made by the defendants within the scope of their employment.
The Court states that the parties and the district court proceeded as if the defendants were sued in their individual capacity. To reach this conclusion, the Court relies on the argument in the employees’ motion to dismiss pursuant to the Eleventh Amendment and Georgia law. Plaintiffs’ attorney argued that the Eleventh Amendment did not provide a defense to state employees sued in their individual capacity. The district court reserved judgment on the motion and denied it again at the trial’s conclusion. The district court treated the case as if the employees were being sued in their individual capacity, or it would have dismissed them as it had the GDOT. The complaint sought joint and several liability.
If this was a suit against these employees in their individual capacities, it was kept a secret from the factfinder, the jury. Funda*1583mental fairness would seem to indicate the jury should be advised in what capacity the defendants were being sued. There is no indication from the proceedings before the jury, however, that plaintiffs brought this action as an individual capacity suit. Plaintiffs only indicated that the suit was for actions taken officially. Plaintiffs alleged in their complaint that the defendants acted within the scope of their employment. During opening statements at trial, plaintiffs told the jury that the defendants should have noticed that the culvert’s foundation was improper when the wing wall fell off. During closing arguments, plaintiffs discussed generally GDOT employees’ failure to properly inspect the culvert. In essence, plaintiffs argued that employees of the GDOT did not do their jobs. Finally, in its instructions to the jury, the court never indicated that the suit involved the individual acts of the defendants. There was not a word about liability for any actions other than their official activities. If this was a suit against the employees in their individual capacity, surely the parties or the court would have so informed the jury. Because this was a suit for negligent acts committed within the scope of employment, it was a suit that Georgia courts treat as an official capacity suit with the state being the real party in interest.
Even if the plaintiffs intended to sue defendants in their individual capacity, because the suit alleged only negligent acts within the scope of employment, the cases discussed earlier make clear that Georgia courts would deem such an action as one against the state. No cases have been cited in which a Georgia court has held that a GDOT employee could be sued in an individual capacity. Before the federal court creates a cause of action which finds no support in state law, the least it should do is certify to the Georgia Supreme Court the question of whether there are any circumstances under which a plaintiff can obtain a personal judgment against a DOT employee as a result of that employee’s negligent acts, absent allegations of wilfulness, malice or corruption.
The Court here concludes that state employees may be sued in their individual capacities in a federal diversity action, relying on Hobbs, 999 F.2d 1526, 1527 (11th Cir.1993), which relies on a line of federal question cases. Hobbs is a recently decided case in which the underlying facts are virtually the same as this case. Hobbs also involves a diversity negligence action against GDOT employees for discretionary acts taken within the scope of their employment. Hobbs holds that GDOT employees can be sued in their individual capacities in a federal diversity negligence suit.
I understand this panel of the Court is bound by the decision in Hobbs. The problem with the Hobbs analysis, however, is that the Court relies solely on cases in which the underlying action is based on federal Section 1983 claims. This analysis reflects the belief that diversity cases are like federal question cases for purposes of Eleventh Amendment analysis. In Section 1983 cases, to establish personal liability, plaintiff must show that the official, acting under color of state law, caused the deprivation of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). An official in a personal-capacity suit may have available certain personal immunity defenses in such an action, such as qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Because this is a diversity case, qualified immunity is not an issue. See Griesel v. Hamlin, 963 F.2d 338 (11th Cir.1992). Rather, state rules of immunity govern actions in federal court alleging violations of state law. Erie Railroad Co. v. Tompkins, 304 U.S. at 78, 58 S.Ct. at 822. See, e.g., Benning v. Board of Regents of Regency Universities, 928 F.2d 775 (7th Cir.1991); Napolitano v. Flynn, 949 F.2d 617 (2d Cir.1991). Yet, after Hobbs, 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. In effect, this Court has created from whole cloth a new cause of action for plaintiffs suing for negligence in federal court. This is contrary to the principles of federalism and the Erie doctrine.
Because this suit would be treated under Georgia law as one against the state, it is *1584subject to the proscription of the Eleventh Amendment. The Eleventh Amendment prohibits a federal court from exercising jurisdiction over a lawsuit against a state except where the state has consented to suit or waived its immunity, or where Congress has overridden the state’s immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-908, 79 L.Ed.2d 67 (1984). Congress has not overridden Georgia’s immunity in this situation.
There is no question as to whether the law of sovereign immunity would apply to this case in a Georgia state court, even though it is brought against individuals and not the state agency. The Georgia Supreme Court has held that GDOT employees have the same sovereign immunity as the state agency itself in a case alleging negligence in the performance of a discretionary task in the course of their employment. Hennessy, 264 S.E.2d 878. The Hennessy court rejected the plaintiffs argument in that case that the suit was an individual capacity suit not subject to immunity because the defendant’s allegedly negligent actions were committed entirely within his official role and defendant was not alleged to have exceeded his scope of employment. In a case similar to the one before this Court, the Georgia Supreme Court held that Hennessy’s rule was applicable to a case involving the alleged negligent acts of GDOT employees. Price, 361 S.E.2d 146. In Price, plaintiff alleged that GDOT employees acted negligently in designing and maintaining a roadway which contributed to her injuries resulting from an automobile collision. The court concluded that design and maintenance of a road were “acts or omissions requiring discretion and judgment” making the claim an action against the state and, therefore, subject to sovereign immunity. Price, 361 S.E.2d at 148. See also Donaldson, 414 S.E.2d 638. Similarly, inspection of a culvert is a discretionary function for which errors in execution may be brought only in an official capacity suit subject to sovereign immunity.
Of course, the purchase of insurance on behalf of state employees sued for acts performed in the course of their duties is a partial waiver of sovereign immunity to the extent there is insurance coverage. Price, 361 S.E.2d at 148.
The question then is not whether the fact that Georgia purchased insurance on behalf of these defendants brings them within the cloak of Eleventh Amendment immunity, as addressed by the Court’s opinion, but whether the fact the state has partially waived the sovereign immunity deprives the defendants of the Eleventh Amendment immunity they would otherwise have. Eleventh Amendment immunity and sovereign immunity are distinct concepts. While the Georgia Constitution provides that sovereign immunity can be waived through the purchase of insurance, that provision explicitly states that United States constitutional rights, e.g., Eleventh Amendment immunity, are not so waived. Ga. Const. Art. 1, § 2, para. 9. Therefore, there has been no state waiver of Eleventh Amendment immunity as would provide a federal court with jurisdiction under Penn-hurst. Thus, although defendants are subject to liability in their official capacities in Georgia state court to the extent there is insurance coverage, due to the state’s waiver of sovereign immunity, they are immune from suit in federal court based on Eleventh Amendment immunity.