Should counties be subject to the Tort Claims Act?

By Peter Vieth
Published: December 8, 2008

The 2009 General Assembly will be asked to approve a study that could lay the groundwork for allowing accident victims to sue Virginia counties.

Virginia counties long have been protected by the common law doctrine of sovereign immunity, which means someone injured by a county employee has to navigate a complex legal landscape to successfully bring a tort claim against the employee. Many claims are barred altogether where the employee is deemed to have been carrying out a “discretionary” function.

Norfolk lawyer Wiley F. Mitchell Jr. said, because counties often step in to defend and cover their employees when they face claims, he questions whether it would cost any more simply to allow claims against counties under the Virginia Tort Claims eliminating the Act and confusing distinctions about employee functions. It’s a proposition that’s firmly opposed by the Virginia Association of Counties.

Mitchell has studied the issue with other members of the Boyd-Graves Conference, a group that recommends changes to improve civil practice in Virginia. He said that the group was unable to obtain comprehensive figures for what the state currently spends to handle tort claims on behalf of its employees.

On behalf of the conference, Sen. John Edwards, D-Roanoke, last month filed legislation calling for a study of the costs of handling and paying tort claims against counties, cities and towns. Senate Joint Resolution 277 would direct the Joint Legislative Audit and Review Commission to provide findings in time for the 2010 legislative session.

As a state senator from 1976 to 1988, Mitchell authored the current Virginia Tort Claims Act, which allows for claims and lawsuits against the state based on accidents caused by state employees. It does not cover actions of local government employees. Claims are capped at $100,000.

Mitchell said localities have argued that they would face “financial disaster” if they were forced to pay for claims in the same way as the state, but Mitchell and Edwards question whether it would cost any more to bring localities under the Tort Claims Act. As Edwards explained, “The argument has always been that [a change] would be expensive for taxpayers and the localities. Some of us think it would be just the opposite.”

Phyllis Errico, general counsel for the Virginia Association of Counties, is not persuaded that allowing tort claims against counties would end up saving taxpayers money. “In an economy where we’re all sensitive to assessments and real estate taxes, it’s a tough time to look at putting an additional burden on counties,” she said.

Errico questions whether a study will answer all the questions. “It’s a hard thing to get your arms around,” she said. “It’s hard to say how many lawsuits would have been filed but were not because of the sovereign immunity defense.”

Edwards said there’s more to the idea than possible cost savings. Applying the Tort Claims Act to localities would eliminate the complex liability questions that arise under sovereign immunity. “Certainly, it’s fairer to the claimant,” he said.

“It would bring some rationality to the system that is now totally irrational,” Mitchell said.

In addition to the confusing legal holdings about the immunity status of county employees, there are completely different standards that apply if an injury was caused by a city employee. A lawsuit is permitted against a city, but only if the accident arose from a “proprietary,” and not a “governmental,” function. (An “update” article on city and county immunity appears in the current issue of The Journal of the Virginia Trial Lawyers Association.)

“No one has ever been able to satisfactorily explain why Fairfax County enjoys total immunity and the City of Alexandria next door does not,” Mitchell said. “Nobody is able to predict with any certainty in a claim against a city whether the claim will be allowed or barred as based on a governmental act.”

Bringing localities under the Tort Claims Act would even the playing field, said Edwards. “Everybody is treated the same, whether they are injured by a state, county or city employee.”

Mitchell said that in two years of studying the immunity issue, localities have “stepped up to the plate” for their employees when claims are brought, hiring lawyers for the employees and paying settlements or judgments when appropriate. “Most cities and counties have insurance coverage for their employees,” he said.

Because the government is paying to handle such claims anyway, Mitchell reasons it makes sense to find out if bringing localities under the Tort Claims Act would cost any more. He said the Boyd-Graves study panel hit roadblocks from both sides trying to get cost figures. The Office of the Attorney General said that there was no central repository of claims costs, because the actual claims were paid from one fund while claims handling, investigation, and defense costs were included in other funds. Counties were not forthcoming with information about their claims, Mitchell said.

“This study is needed to put to rest once and for all what the current system is costing and whether a change would engender the ‘financial disaster’ that some have predicted,” Mitchell said.

“I’m not opposed to a study,” said the VACo’s Errico. “I just think it’s a very difficult thing to study.”

The Virginia Trial Lawyers Association has not taken a formal position on the study or the suggestion to bring localities under the Tort Claims Act. According to executive director Jack Harris, the VTLA is primarily concerned about increasing the $100,000 cap on claims under the Act.

“That limit is well below the caps in most states and hasn’t been raised since 1993,” Harris said.

Virginia Lawyers Weekly

Should counties be subject to the Tort Claims Act?

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