Written by Ben Woody, Esq.
Edited by Bill Pfund, Esq.
The capsizing of a vessel operated by a police officer has highlighted a stark contrast between the application of sovereign immunity in state and federal courts in Virginia.
The City of Norfolk contracted with Willard Marine, Inc., to perform certain repairs to the City’s SAFE Boat. When Willard Marine returned the repaired vessel to the City, a Norfolk police officer and two other City employees accepted delivery on its behalf. The officer, who was otherwise unqualified to navigate the vessel, conducted a sea trial with two Willard Marine employees, Glover and Pridemore, aboard. The officer perceived steering and handling issues with the SAFE Boat and, without warning the Willard Marine employees, pushed the vehicle to high speed and steered hard to starboard, causing the vessel to capsize and injuring Glover and Pridemore. The employees sued under a variety of theories in parallel state and federal litigation. In the state case, the plaintiffs sued under theories of common law negligence and gross negligence.
In the federal case, the City moved to dismiss the claims on the basis that, among other reasons, sovereign immunity barred the plaintiffs from recovery. Glover v. Hryniewich, 2018 U.S. Dist. LEXIS 64920, at *8 (E.D. Va. Apr. 16, 2018). The Eastern District of Virginia found, however, that sovereign immunity was not available to the City for two reason: first, the sea trial was not a government function; and second, the City was not an arm of the state. Id. at *13, 15. The Court noted that sovereign immunity protected municipal shipowners in in rem proceedings (against the vessel) rather than against the municipalities themselves in personam. Id. at *11–12 (quoting Tinsley v. Ferryboat West Point, 1946 A.M.C. 1532, 1532 (E.D. Va. 1946)). Further, the Court noted that the chief aim of sovereign immunity in federal cases was to prevent a federal court from ordering seizure of funds held in a state treasury. Id. at *13 (quoting Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001)). The court reasoned that since it was not the Commonwealth of Virginia but instead the City of Norfolk that would be responsible for payment of a judgment, sovereign immunity was not available to it. Id. at *15.
The officer’s defense of qualified immunity likewise failed to pass muster. While the officer rightly argued that qualified immunity protects municipal employees like himself from maritime tort liability even where his employer is not immune, qualified immunity is available to “all but the plainly incompetent or those who knowingly violate the law.” Id. at *19 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The Court held that based on the complaint’s numerous allegations that (1) his sudden and ill-conceived severe maneuvering of the vessel never should have occurred; (2) he decided to make these maneuvers after perceiving steering and handling problems with the vessel; and (3) that, taken together, these decisions and actions amount to allegations of incompetence. Id. at *21. Therefore, the Court found that the officer was not entitled to qualified immunity as a matter of law. Id.
In the state litigation concerning largely the same set of facts, claims, and defenses, the Circuit Court for the City of Norfolk granted the City’s plea in bar of sovereign immunity and was immune from all liability. Pridemore v. Hryniewich, 95 Va. Cir. 448, 497 (Norfolk 2017). The Norfolk Circuit Court held that the immunity under state law was a jurisdictional manner as applied to the parties, and it therefore dismissed the claims with regard to the City. Pridemore v. Hryniewich, 94 Va. Cir. 564, 573 (Norfolk 2016). As to the officer, the Norfolk Circuit Court held that qualified immunity under Virginia law barred claims of simple negligence against him, but the gross negligence claims could proceed. The Court denied the officer’s summary judgment motion, but certified the parties’ joint request for interlocutory appeal to the Supreme Court of Virginia. On September 26, 2018, the Supreme Court granted the petition for appeal to resolve whether a defense of qualified immunity is solely jurisdictional that is inapplicable to a Virginia state maritime tort claim.
The federal and state cases arising out of the same facts yet yielding different results underscores the robust sovereign immunity regime recognized under Virginia law. Further, these two approaches tend to suggest that a municipality responding to a maritime tort case in Virginia state court likely should not rely on Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772 (S.D. Tex. 2013), and endeavor to remove a matter to federal court, the Saving-to-Suitors Clause in 28 U.S.C. § 1333(a) notwithstanding.