dissenting.
I respectfully dissent because I agree with the trial court that the General Liability Agreement (“GLA”) is ambiguous.
Judgment was entered in the underlying lawsuit in favor of Melinda McCoy on her claims of malicious prosecution and violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) statutes. I agree with the majority that the underlying judgment against the state employee defendant, Nicole Allen, could have *885established liability only for her actions made outside the scope of her employment. Accordingly, the pertinent issue is whether the GLA nevertheless provides coverage for those actions.
An insurance policy, considered as a whole, that is subject to two reasonable interpretations, one providing for coverage and one excluding coverage, is ambiguous, and the ambiguity must be strictly construed against the insurer as the drafter of the document. American Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 485-487 (759 SE2d 563) (2014). Under the GLA, the Department of Administrative Services (“DOAS”) will pay those sums that a covered party becomes legally obligated to pay as damages because of “personal injury.” In turn, “personal injury” is defined to include personal injury arising out of an occurrence of “[fjalse arrest, detention or imprisonment, abuse of process or malicious prosecution.” Further, the GLAprovides that “[tjhis Agreement will respond to any covered allegation in order to defend and pay ‘damages’ on behalf of a Covered Party when a claim or ‘lawsuit’ is filed and is not covered by the Georgia Tort Claims Act [the ‘GTCA’].” No coverage is provided under the GLA for claims “filed in any court of the State of Georgia that are covered by the [GTCA].”
Under the GTCA, a state employee “who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” OCGA § 50-21-25 (a). Rather, the GTCA “constitutes the exclusive remedy for any tort committed by a state officer or employee.” Id. Further, the GTCA provides that the state shall have no liability for malicious prosecution. OCGA § 50-21-24 (7). Thus, if a state employee commits the tort of malicious prosecution, any lawsuit or recovery by the injured party arising from that tort must be founded on acts outside the scope of the state employee’s official duties or employment.
The GLA, on the one hand, contemplates coverage for a Covered Party “acting in the course and scope of their duties with a participating department,”9 while simultaneously contemplating that it will provide coverage for the tort of malicious prosecution. But the GLA’s “course and scope” requirement negates any possible coverage for a claim of malicious prosecution. I find persuasive the observation of the trial court that
[i]f the GLA was meant to only cover torts committed in the course and scope of employment, then there would be no *886need for the policy to exist at all, since the GTCA would control. Nevertheless, the DOAS included malicious prosecution in the policy and thus, it clearly meant for malicious prosecution to be a covered tort.
“[I]f there are conflicting or repugnant clauses in an insurance policy, the court will construe them in favor of the insured, so as to prevent a forfeiture.” (Citation and punctuation omitted.) Davis v. United American Life Ins. Co., 215 Ga. 521, 527 (2) (111 SE2d 488) (1959). As the GLA’s provisions are conflicting and repugnant insofar as they contemplate coverage for a claim of malicious prosecution as well as require that an occurrence be committed or allegedly committed in the “course and scope” of a covered party’s duties with a participating agency, the GLA is ambiguous. In order to effect the expressed intent of the GLA to provide coverage for the tort of malicious prosecution, the clause allowing for such coverage must be adopted to the exclusion of the conflicting provisions of the GLA. See Davis v. United American Life Ins. Co., 215 Ga. at 528 (2).
Further, I disagree with DOAS’s contention that Georgia law precludes coverage under the GLA for acts committed outside the scope of employment. OCGA §§ 45-9-1 (a) and 45-9-4 (a) allow DOAS to maintain a liability agreement insuring or indemnifying state employees “against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” (Emphasis supplied.) The statutory language authorizes the provision of insurance to state employees that is fundamentally broader than the “course and scope” language which DOAS included in the GLA and does not require that the GLA be interpreted to deny coverage here. Indeed, McCoy’s malicious prosecution claim in the underlying lawsuit was at least “connected” with Allen’s employment with the Rabun County office of the Georgia Division of Family and Children Services.
Lastly, I find without merit DOAS’s contention that the state’s sovereign immunity precludes it from paying damages on account of a RICO claim under the GLA. As noted above, the General Assembly authorized DOAS to provide the GLA to insure against the “personal liability” of state employees, and the GLA does not provide coverage for claims covered by the GTCA. The underlying judgment can only be seen as against Allen in her personal capacity, and it established her liability only for actions outside the course and scope of her employment. The GTCA does not preclude claims against state employees outside the scope of their official duties or employment. SeeOCGA § 50-21-25 (a) (“[Njothingin this article shall be construed to give a state officer or employee immunity from suit and liability if *887it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.”). Our holding in Tricoli v. Watts, 336 Ga. App. 837, 840 (4) (783 SE2d 475) (2016) that, where the GTCAis the exclusive remedy, the Georgia RICO Act could not be invoked as an alternate remedy or waiver of sovereign immunity for the tortious conduct of state employees, does not apply here.
Decided March 16, 2017 Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Robin J. Leigh, Senior Assistant Attorneys General, for appellant. Cathey & Strain, Dennis T. Cathey, Matthew A. Cathey, for appellee.I would affirm the judgment of the trial court.
I am authorized to state that Judge Reese joins in this opinion.
The GLA also excludes “[cjlaims relating to an ‘occurrence’ committed or allegedly committed by a Covered Party while outside the course and scope of their duties with a participating ‘department.’ ”