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Va. Cir.: Interlocutory appeal on immunity issues certified

Concluding that its first-impression immunity rulings would likely lead to an appeal of any trial result, the court stayed proceedings in a negligence action pending interlocutory appeals requested by both parties.


In January 2014, the City of Norfolk contracted with Willard Marine Inc. for modifications and repairs to the City’s marine patrol vessel Marine 5. In accordance with the contract, Plaintiffs Timothy J. Pridemore and David I. Glover (two Willard employees) brought the vessel to the Willoughby Bay boat ramp in Norfolk to conduct a sea trial.

The contract required the sea trial to be performed with a Norfolk Harbor Patrol representative onboard. Thus, Norfolk police officer Defendant Richard J. Hryniewich was on the vessel and in fact operated it during the sea trial. For reasons that are in dispute, the vessel capsized during the sea trial.

The Plaintiffs filed suits against Hryniewich and the City seeking recovery for alleged injuries stemming from the capsizing. After further pleadings, the court determined that the City is immune from all liability and Hryniewich is immune from claims of simple negligence. However, the court determined that gross negligence claims against Hryniewich could go to trial.

The parties now each seek certification of an interlocutory appeal of the court’s prior decisions. The Plaintiffs seek to appeal the court’s ruling that state sovereign immunity precludes its jurisdiction to hear negligence claims against the City, and simple negligence claims against Hryniewich. Hryniewich seeks to appeal the court’s ruling that he cannot assert maritime qualified immunity as an affirmative defense.

Interlocutory appeal elements

First, there is substantial ground for difference of opinion on each of the issues, and the parties accordingly take opposite positions. As Hryniewich concedes, although the greater weight of authority holds that federal qualified immunity is an affirmative defense rather than a jurisdictional bar, there is authority on both sides of the question. Similarly, as the Plaintiffs argue, substantial disagreement exists as to U.S. Supreme Court precedents on admiralty cases, especially those originating in state court against municipalities and their employees.

Second, there are no controlling Virginia appellate decisions conclusively resolving the issues. The appropriate application of sovereign immunity in a maritime tort case filed in state court appears to be an issue of first impression in Virginia. Although this court addressed this issue in its prior order in this litigation, there are no Virginia cases that directly resolve the issue.

Third, the immunity issues are dispositive of all or major portions of the proceedings currently before the court. The court’s prior rulings as to state sovereign immunity in state court resulted in the dismissal of the City as a defendant and the dismissal of the simple negligence claims against Hryniewich. The court’s prior ruling on the issue of maritime qualified immunity retained the gross negligence claims against Hryniewich, which are the only remaining negligence claims in the actions.

Finally, the parties agree that it is in their best interest to seek an interlocutory appeal on the issues presented.

The court is concerned that the certification request comes almost two years after the complaints were filed, over 14 months after this court first ruled on relevant immunity issues, and only weeks before the scheduled start of the first trial. Code § 8.01-670.1 allows a party to seek an immediate interlocutory appeal after entry of a circuit court order. Although Hryniewich sought an interlocutory appeal shortly after entry of the court’s order of February 16, 2018, the Plaintiffs seek to appeal the court’s decision of December 29, 2016. The Plaintiffs proffered at the hearing that the need for their request only arose as a result of Hryniewich’s similar request.

The court considers the Plaintiffs’ delay in its evaluation of the best interest of the parties, but does not find it dispositive. Were the trials to proceed without resolution of these issues, the non-prevailing party would likely appeal, and retrials would be necessary if the Supreme Court of Virginia analyzed the immunity issues differently than this court.

Motions for certification of interlocutory appeal granted.

Pridemore v. Hryniewich, Case Nos. CL16-3261-00, CL16-3262-00, Mar. 9, 2018. Norfolk Cir. Ct. (Lannetti). VLW No. 018-8-023, 6 pp.

VLW 018-8-023