dissenting.
Because I believe that Maxwell has not properly alleged that the county has waived sovereign immunity by the purchase of insurance, I respectfully dissent.
Maxwell’s only argument on appeal is that the trial court erred in granting appellees’ motion for judgment on the pleadings because the county waived sovereign immunity under OCGA § 33-24-51 (b) by purchasing insurance for its school buses. The trial court held a hearing on the defendants’ motion for judgment on the pleadings, after which it specifically found that defendants had not waived sovereign immunity by the purchase of liability insurance. But, Maxwell has not submitted a transcript of the hearing, and therefore, we can look only to the pleadings before us to determine whether they allege the county has waived sovereign immunity by purchasing insurance. They do not. The only mention of the waiver of sovereign immunity is in Maxwell’s amended complaint, which states:
Though the Defendants normally might have immunity under the theory of governmental or sovereign immunity as *494described in the Constitution of the State of Georgia (Article I, Section 2, Paragraph 9), said immunity is waived in accordance with OCGA § 33-24-51 to the extent of the limits of any existing insurance coverage pertaining to the operation of a motor vehicle by Defendant Cronan or other employees of Defendant Newton County School District.Decided November 23, 1999 Reconsideration denied December 15, 1999. Hartley & Puls, Carl A. Puls, Jr., Andrew W. Estes, Kathy E. Jarman, for appellant. Chambers, Mabry, McClelland & Brooks, James T. Budd, William R. Youngblood, E. Wycliffe Orr, William K. Campbell, for appel-lees.
While this is a true statement of the law, this is not an allegation of fact that the county has insurance.
Further, this is not a case in which the school district must plead a lack of insurance as an affirmative defense. That is not the law. Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. A waiver of sovereign immunity must be established by the party seeking to benefit from the waiver. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (434 SE2d 488) (1993); Kordares v. Gwinnett County, 220 Ga. App. 848, 849 (470 SE2d 479) (1996). Therefore, in light of the above, I would affirm the judgment of the trial court.