dissenting.
After Ponder was decided in 1987, the Authority established a new trust fund in which millions of dollars were set aside for the purpose of paying negligence claims. Nonetheless, representatives of the Authority stated under oath in the years 1988 through 1990 that the Authority had no assets set aside from their operating funds, that nothing had changed since Ponder, and that it had no documents relating to any type of self-insurance plan.
*790Unlike the majority, I believe the existence of a new, post-Ponder trust fund established for the purpose of defending and paying negligence claims (and the Authority’s alleged fraud in failing to disclose it) is relevant to the Authority’s defenses based on sovereign and statutory immunity as well as charitable immunity. Accordingly, I believe the Authority’s motions for dismissal and summary judgment were properly denied.
The new, post -Ponder plan waived sovereign immunity in addition to charitable immunity. The chairman of the Authority’s board at the time the new plan was adopted testified that the Authority intended to waive both charitable and sovereign immunity to allow patients to bring claims up to a certain limit. (Indeed, what purpose would it serve to waive charitable immunity without waiving sovereign immunity?) It is true that the initial version of the plan expressly waived only charitable immunity. But at that time, the Authority was not entitled to rely on sovereign immunity under Med. Center Hosp. Auth. v. Andrews, 250 Ga. 424 (297 SE2d 28) (1982). When the Georgia Supreme Court overruled Andrews and held that hospital authorities were entitled to rely on a sovereign immunity defense (see Self v. City of Atlanta, 259 Ga. 78 (377 SE2d 674) (1989)), the Authority actually revised the plan to clarify the scope of its waiver: “One of the purposes and intent of the Authority in establishing this Fund is to provide a limited waiver of its charitable and sovereign immunity defenses.” Moreover, the revised plan explicitly stated that January 1, 1988 would be the effective date of the waiver, and that it would be applicable to claims and suits “arising out of occurrences which take place on, or subsequent to, January 1, 1988.”5
Because the plan waives sovereign as well as charitable immunity, the alleged fraud goes to prior rulings with respect to both defenses.
The Authority’s allegedly fraudulent withholding of the plan is also relevant to the statutory immunity defense, as the statutory immunity referred to in Walker I is simply a form of charitable immunity which is waived by a general waiver of charitable immunity. See OCGA § 51-1-29.1.
In short, it appears that the trial court’s initial grant of summary judgment and our holdings in Walker I were all based on an incorrect set of facts provided by the Authority — that the Ponder plan was *791still the only plan in effect. Thus, the holdings resulting from the alleged fraud should not preclude consideration of whether the Authority’s conduct does in fact constitute fraud sufficient to warrant setting aside the earlier judgment under OCGA § 9-11-60 (d) (2).
Decided March 17, 1995 Alston & Bird, G. Conley Ingram, Robert D. McCallum, Jr., Bernard Taylor, Rogers & Hardin, C. B. Rogers, for appellant. Bird, Ballard & Still, William Q. Bird, Robert K. Finnell, for appellees.I am authorized to state that Chief Judge Beasley and Judge Blackburn join in this dissent.
In Bagley v. Fulton-DeKalb Hosp. Auth., 216 Ga. App. 537 (455 SE2d 325) (1995) we recently held that, based on the evidence presented to us, it did not appear that the post-Ponder plan was intended to be retroactively applied to incidents happening in 1984 or 1986. (Ponder was decided in 1987.) Contrary to the Authority’s suggestion, however, this does not mean that a 1990 revision to the post-Ponder plan — a revision which the plan drafters explicitly made applicable to any occurrence after January 1, 1988 — cannot be applied by its terms to an occurrence, such as this one, which happened after January 1, 1988.