dissenting.
I must respectfully dissent to the majority holding in Division 1 of case number 62842. In City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980), the court adopted the rule: “. . . absent statutory authority, a municipality cannot be held liable for punitive damages.” The question then remains as to whether this rule applies to MARTA. The Georgia Constitution, Art. 9, Sec. 4, Par. 2, formerly Code Ann. § 2-5102 (10), authorizes cities to operate bus systems, and the Metropolitan Atlanta Rapid Transit Authority was created by the General Assembly as Ga. Laws 1965, p. 2243 et seq. Under § 4 (p. 2246), MARTA was created as a joint public instrumentality of the City of Atlanta and the five surrounding counties. Section 8 (p. 2252) provides: “The Authority shall have all powers necessary or convenient to accomplish the aforesaid purposes including ... (a) The powers, privileges and immunities authorized by law for private corporations and for instrumentalities of government. The Authority may sue or be sued in its corporate name but no execution shall be levied on any property of the Authority prior to ninety (90) days from the date of a final judgment against the Authority...” Section 22 (p. 2275) waives governmental immunity from tort liability and requires the Authority to obtain adequate insurance, indemnification or similar protection against loss. Thus, MARTA’s immunity, if any, is waived in §§ 8 (a) and 22. Glover v. Donaldson, 243 Ga. 479 (254 SE2d 857) (1979).
Appellee argues that MARTA is not clothed in any form of sovereign immunity under City Council of Augusta v. Lee, 153 Ga. App. 94 (264 SE2d 683) (1980) and Columbus, Ga. v. Hadley, 130 Ga. App. 599 (203 SE2d 872) (1974) wherein this court held that the city-operated transit systems were a ministerial rather than a governmental function of the two cities. As noted in the Columbus, Ga. case, there is no satisfactory test for distinguishing between governmental and ministerial functions and when the court was “ [confronted with this situation and in the absence of any statutory declaration of governmental immunity or classifying it as a governmental function, the best recourse is to determine whether any given municipal activity of this kind is protected by the shield of governmental immunity as found in cases which actually classify that particular activity.” Id. at 600. In the instant case, we have quite a different situation. As stated in Glover v. Donaldson, supra, the existing legislation provides for sovereign immunity and its waiver in §§ 8 (a) and 22 and § 3 (p. 2245) provides: “The territory comprising *266the counties of Fulton, DeKalb, Cobb, Clayton and Gwinnett, including the City of Atlanta, has developed and continues to develop, phenomenally into a metropolitan area with a common interest in the cultural, social and economic well-being of the people therein and the development of the educational, commercial and industrial resources thereof. There exists in this metropolitan area serious traffic conditions and congestions and serious mass transportation problems which impede, and will increasingly impede, the development of these common interests toward their fullest potential. Concerted governmental action is needed to alleviate such traffic conditions and congestion, supply deficiencies in mass transportation, coordinate and balance the transportation facilities operating therein, and otherwise provide a sounder basis for the development of traffic patterns and control. The development of a rapid transit system through a joint instrumentality of the local governments within the metropolitan area is a reasonable approach to the aforesaid needs and problems. The cultural, social and economic well-being of the people in the metropolitan area and the development of the educational, commercial, and industrial resources thereof are matters of public interest and concern throughout the State. Accordingly, it is the public policy of this State, as a matter of public health, safety, convenience and welfare, to promote the establishment of such a joint instrumentality, encourage participation therein by the local governments involved, facilitate the accomplishment of its purposes and bring about solutions for the aforesaid needs and problems.” As this section envisions the creation of the public transit system as “... an act for the common good of the general public without special corporate benefit or pecuniary profit to the municipality or its citizens, the Act is generally classified as governmental...” Charles S. Rhyne, The Law of Local Government Operations (1980), § 32.2, p. 1043.
As the enabling legislation indicates that MARTA serves a governmental function, it is cloaked in sovereign immunity that is waived only to the extent provided in the enabling legislation and as no statutory provision expressly providing for the award of punitive damages has been included in the Act, they cannot be awarded. City of Columbus v. Myszka, supra. OCGA § 33-34-6 (c) (Code Ann. § 56-3406b) which permits punitive damages to be awarded for bad faith refusal to pay a claim under Georgia no-fault insurance law is inapplicable as there is no implied waiver of sovereign immunity.
Accordingly I would affirm the trial court’s grant of a judgment notwithstanding the verdict in favor of MARTA.