Friday's government liability cases from the Virginia Supreme Court

In Frederick County School Board v. Hannah, the Virginia Supreme Court in an opinion by Justice Agee held that the statutory liability limit for school boards in bus accident cases was inapplicable in a case where the school board had failed to obtain a certificate of self-insurance as required by the statute, Va. Code 22.1-194. The School Board claimed that it was self-insured under sub-section D of Va. Code 22.1-190, by virtue of its participation in the group self-insurance pool for school boards created pursuant to Va. Code 15.2-2704, but it had not received the required certificate. The School Board also relied on the language in section 22.1-194 which prohibits payment of a judgment from school funds. The Court found, however, that the insurance pool will pay the judgment, not school funds (even though there is nothing in the pool but school funds).

In Tazewell County School Board v. Brown, the Court in an opinion by Justice Kinser reversed the ruling of Circuit Court Judge Vanover, on the issue of whether a school principal was covered by the grievance procedure of the Tazewell County school system. Instead, the Court concluded that the principal was covered by the state system, under which his suspension was not a grievable issue. Va. Code 22.1-79(6) requires school boards to establish a local grievance procedure covering employees other than superintendents and those employees covered by Articles 2 and 3 of Chapter 15 of Title 22.1. The Court concluded that the state grievance procedure controlled, not the local procedure, and the principal's suspension was not a grievable issue under the state procedure, and that his only remedy was under the suspension statute, Va. Code 22.1-315, under which the principal had failed to request relief.

In Rector and Visitors of the University of Virginia v. Carter, the Court in another opinion by Justice Agee held that the trial court in overruling the University's plea of sovereign immunity, in a case where the plaintiff had failed to join the Commonwealth as defendant as required under the Virginia Tort Claims Act but proceeded only against a state agency, the University. Interestingly, the University sought certification of the immunity issue under Va. Code 8.01-670.1, a 2002 statute that allows for certification of interlocutory orders for appeal, somewhat in the manner that is allowed in federal procedure under 28 U.S.C. 1292(b). The Court agreed with the University's argument that the Virginia Tort Claims Act "provides an express, limited waiver only of the Commonwealth's sovereign immunity but does not disturb the sovereign immunity of the Commonwealth's agencies." It is interesting that this opinion came down the same day as the school bus opinion, in which the Court went somewhat out of its way to reconcile the statutes at issue there to go beyond what would appear to be the express limitation on the waiver of sovereign immunity in that case.

In Jones v. Commonwealth, the Court in an opinion by Justice Lemons held that the University of Virginia is a governmental entity for purpose of determining its status as a statutory employer under the worker's compensation laws, and therefore the plaintiff's claims were barred by the exclusive remedy of the worker's compensation laws.