Lewis v. State of Vermont, Civ. A. No. 5229.

• Decision Date: 10 September 1968
• Docket Number: Civ. A. No. 5229.
• Citation: 289 F. Supp. 246
• Parties: James A. LEWIS, Administrator of the Estate of Rodney Spies v. STATE OF VERMONT, Beckwith Motors, Inc. and the Town of New Haven.
• Court: U.S. District Court — District of Vermont

289 F. Supp. 246

James A. LEWIS, Administrator of the Estate of Rodney Spies v. STATE OF VERMONT, Beckwith Motors, Inc. and the Town of New Haven.

Civ. A. No. 5229.

United States District Court D. Vermont.

September 10, 1968.

Alden T. Bryan, Black, Wilson & Hoff, Burlington, Vt., for plaintiff.

James J. McNamara, McNamara, Fitzpatrick & Sylvester, Burlington, Vt., for defendant State.

Albert W. Coffrin, Coffrin & Pierson, Burlington, Vt., for defendant Beckwith Motors, Inc.

Charles F. Ryan and Robinson E. Keyes, Ryan, Smith & Carbine, Rutland, Vt., for defendant Town of New Haven.

OPINION

LEDDY, District Judge.

The plaintiff, as the administrator of the estate of Rodney Spies and a citizen of the Commonwealth of Massachusetts, commenced this action in the United States District Court for the District of Vermont against the State of Vermont, Beckwith Motors, Inc., a Vermont corporation, and the Town of New Haven, Vermont. The complaint alleged that while the plaintiff's intestate was riding in a car driven by his mother on State Aid 2 in the Town of New Haven, Vermont, the negligence of the defendants caused the car to go out of control and collide with a large truck as it crossed a bridge spanning the New Haven River. The plaintiff seeks damages for the resulting fatal injuries to plaintiff's intestate.

The plaintiff alleges in paragraph 7 of his complaint that the defendants, State of Vermont and Town of New Haven, carried policies of liability insurance pursuant to Title 29 V.S.A. §§ 1401, 1403 and 24 V.S.A. § 1092 which were in full force and effect at the time of the alleged accident and that the said defendants thereby waived their sovereign immunity to the extent of the coverage.

The defendant, State of Vermont, has filed a motion to dismiss on the ground that the Court does not have jurisdiction over it.

The Town of New Haven has filed a motion to dismiss on the grounds that the Court lacks jurisdiction over the subject matter and over the person; that the Town of New Haven is not a citizen within the meaning of 28 U.S.C. § 1332; that the Eleventh Amendment to the Constitution of the United States does not impart any power to authorize the bringing of suits by individuals against a State; and that the complaint does not state a claim upon which relief can be granted.

Title 29 V.S.A. § 1403 (Supp.1968) provides as follows:

"When the state or a department or board purchases a policy of liability insurance under the provisions of section 1401 of this title, and when a municipal corporation purchases a policy of liability insurance under section 1092 of Title 24, and when a county purchases a policy of liability insurance under the provisions of section 131 of Title 24, it waives its sovereign immunity from liability to the extent of the coverage of the policy and consents to be sued."

Plaintiff claims that by virtue of Title 29 V.S.A. § 1403 that the State waived its sovereign immunity to the extent of the coverage of the policy of insurance which it carried and that thereby jurisdiction was conferred on the Federal Court.

This identical question was before Chief Judge Gibson in Miller v. State of Vermont, 201 F.Supp. 930, 933 (D.Vt. 1962). Judge Gibson held that the United States District Court for the District of Vermont had no jurisdiction by virtue of the provisions of section 1403 of Title 29 and among other things stated as follows:

"The state unquestionably has consented to be sued. The Defendant makes no contention to the contrary. The sole question here is whether the consent to suit as expressed also waives the 11th Amendment prohibition against suit in a federal court. This Court feels bound by the widely accepted rule that a state's consent to suit in its own courts is not a waiver of the 11th Amendment privilege, and that consent by a state to suit in a federal court must be by express legislative authority and in clear and express language. * * *

"If the Vermont statute is tested by this rule, it falls short of waiving the 11th Amendment prohibition because there is no clear and express language to this effect."

I fully agree with Judge Gibson's decision that by the enactment of section 1403 the State of Vermont has not waived its immunity to suit in Federal Court and thus the motion to dismiss the defendant, State of Vermont, should be granted.

However, under the circumstances of this case, the Miller case is not controlling with respect to the right of the plaintiff to maintain his action against the Town of New Haven in Federal Court. The care and maintenance of public highways are governmental functions and, in the absence of statutory authority, both the State and a Town are immune from suit for this reason. Latulippe v. City of Burlington, 93 Vt. 434, 108 A. 425 (1919); Town of South Burlington v. American Fidelity Co., 125 Vt. 348, 215 A.2d 508 (1965).

Title 19 V.S.A. § 931 imposes a duty upon a town to keep in good and sufficient repair at all seasons of the year its highways and bridges other than those on the State highway system. The imposition of this duty alone would not render the Town of New Haven liable for the negligent acts of its officers and employees because, as pointed out in the Latulippe case, "in such case the acts and omissions constituting the negligence complained of are not deemed to be the acts and omissions of the municipality, but rather those of the officers having charge of the matter who are considered as acting in behalf of the state in the performance of governmental functions." (93 Vt. at 436, 108 A. at 425). Latulippe v. City of Burlington further states that "the mere fact that a governmental duty is imposed upon a municipality, in the absence of any statutory provision relating to that matter, does not render the municipality liable for an injury resulting from the neglect of that duty." (id. at 435-436, 108 A. at 425, emphasis supplied).

The State long ago adopted a statute imposing liability on towns to...