Virginia’s Sovereign Immunity Doctrine, Emergency Vehicles, and Uninsured Motorist Coverage

Written by Andy Webb, Esq.

Edited by Gary Reinhardt, Esq.

What is Sovereign Immunity?

The doctrine of sovereign immunity is “a government’s immunity from being sued in its own courts without its consent.”  Black’s Law Dictionary, 4th Pocket Ed.: “Sovereign Immunity”.  The doctrine is as old as American law itself.  Like many of the initial common law doctrines in America’s jurisprudence, the doctrine of sovereign immunity grew out of British law.  The famous 18th century English legal scholar, William Blackstone, described the reasoning behind the doctrine when he said “the law also ascribes to the king in his political capacity, absolute perfection. . . The king can do no wrong . . . The king moreover, is not only incapable of doing wrong, but even of thinking wrong.”  1 William Blackstone, Commentaries on the Law of England 245 (1809) (emphasis in original).

Over the generations, the absolute immunity ascribed to the king by Blackstone has slowly eroded.  For example, the Virginia General Assembly waived sovereign immunity in certain situations when it passed the Virginia Tort Claim Act—Va. Code Ann. §8.01-195.3—which allows citizens to directly sue the Commonwealth.  Despite the gradual erosion of the doctrine, “sovereign immunity is ‘alive and well’ in Virginia.”  Messina v. Burden, 228 Va. 301 (1984).

Governmental Employees and Sovereign Immunity

As noted by the Virginia Supreme Court, “The Commonwealth of Virginia functions only through its elected and appointed officials and its employees” and “[i]f because of the threat of litigation . . . they cannot act, or refuse to act, the state [itself] also ceases to act.”  James v. Jane, 221 Va. 43 (1980).  This need for the state to act through its government employees often comes to a head with the fact that, since the doctrine of sovereign immunity was first applied, there has been an “intrusion of government into areas formerly private”, creating a “thousand-fold increase in the number of government employees.”  Id.  In grappling with this issue, the Virginia Courts have found “no justification for treating a present day governmental employee as absolute immune from tort liability, just as if he were an employee of an eighteenth century sovereign,” but instead have granted governmental employees qualified immunity “depending upon the function they perform and the manner of performance.”  Id.

Government Employee’s Qualified Immunity

Balancing the interests outlined above, the Courts have limited sovereign immunity for employees acting on behalf of the Commonwealth, or local governments, to only certain situations.  First, the protection does not apply when an employee acts wantonly, intentionally, or in a grossly negligent manner, nor when the employee acts outside the scope of his/her employment.  Second, “when a state employee is charged with simple negligence, a failure to use ordinary or reasonable care in the performance of some duty, and then claims the immunity of the state” the Court will look to see if the employee acted with discretion—where the doctrine applies—or merely ministerially—where the doctrine does not apply.  To make this determination the Virginia Supreme Court created a four factor test to determine if a governmental employee’s actions are protected by sovereign immunity, colloquially known as the James Test.  Id.  Under this test a Court should consider: (1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in that function; (3) the degree of control and direction exercised by the state over the employee; and (4) whether the act complained of involved the use of judgment and discretion.  Id. (See also Messina v. Burden, 228 Va. 301 (1984)).  Courts have continued to reiterate that, when applying the James Test, the court must look and evaluate each case on its own facts.

Governmental Emergency Vehicles and Sovereign Immunity

Most importantly for Uninsured Motorist Coverage, Courts have generally granted emergency personnel operating emergency vehicles sovereign immunity when responding to emergency situations.  For example, the Colby v. Boyden case, the Virginia Supreme Court applied the James Test to a case where a police officer struck the plaintiff’s vehicle while giving chase after an individual failed to stop for a traffic violation.  The Court held that enforcing traffic laws was “not only a primary government function of a municipality, but one in which the municipality is inextricably involved.”  Therefore, the Court reasoned, the first two prongs—the nature of the function and the extent of the state’s interest in the function—were met.  The court also found that the locality exercised administrative control over the police officer “through the promulgation of guidelines governing actions taken in response to emergency situation.”  Finally, the Court found the final prong was met because “[u]nlike driving in routine traffic, the officer must make difficult judgments about the best means of effectuating the governmental purpose by embracing special risks in an emergency situation.”  Other courts have found immunity applied in similar situations such as a firefighter responding to a car fire and a police officer responding to a domestic disturbance call, but did not apply sovereign immunity when a sheriff’s deputy served judicial process or when a firefighter was engaged in ordinary driving in routine traffic in response to a public service call.  Compare McBride v. Bennett, 288 Va. 450 (2014) & National Railroad Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va. 402 (1991); with Heider v. Clemons, 241 Va. 143 (1991) & Friday-Spivey v. Collier, 268 Va. 384 (2004); see also Va. Code Ann. §46.2-920 (outlining when drivers of emergency vehicles are immune from criminal prosecution for violation of traffic laws while “operat[ing] under emergency conditions.”).

Application of Sovereign Immunity to Uninsured Motorist Coverage

Va. Code Ann. § 38.2-2206, governs uninsured motorist coverage in Virginia.  The Code defines an uninsured motor vehicle as not only a vehicle without liability insurance, but also a vehicle where “the owner or operator of the motor vehicle is immune from liability for negligence under the laws of the Commonwealth or the United States.”  In other words, a vehicle is statutorily uninsured when the driver is protected from liability based on sovereign immunity.  Therefore, if a governmental employee causes an automobile accident while operating an emergency vehicle, he/she may assert sovereign immunity as a procedural bar to a claim of simple negligence.  If the employee is successful in asserting the sovereign immunity bar, the injured party’s uninsured motorist coverage will be triggered.

Things to Look for When an Insured is Injured by a Governmental Employee

When presented with an automobile accident involving an emergency vehicle, there are three main issues to examine.  First, you must determine if the governmental employee was within the scope of his/her employment at the time of the accident.  If the employee was working at the time of the accident, you then need to analyze the employee’s actions that caused the accident.  This analysis is important for two reasons.  As discussed above, a governmental employee is not covered for actions which are intentional or grossly negligent (gross negligence meaning a degree of negligence with shows an utter disregard for the safety of others; stated another way, a lack of even scant care for the safety of others).  If the employee’s actions only rise to the level of simple negligence (the absence of ordinary care) then you must determine if the employee’s actions were discretionary or ministerial.  This is when to apply the James Test.  In the context of a governmental employee operating an emergency vehicle, the key question is whether the employee was responding to an emergency situation.  If so, sovereign immunity will likely apply and uninsured motorist coverage will be implicated.  The plaintiff can then pursue the action against the governmental employee as an “Immune Defendant.”  The government has no duty to defend or indemnify and the burden may then be assumed by the plaintiff’s own carrier pursuant to his/her uninsured motorist coverage.

Submit a Comment

Your email address will not be published. Required fields are marked *