Lumbermens Mut. Cas. Co. v. Fugate, 77-1287
Decision Date | 20 January 1978 |
Docket Number | No. 77-1287,77-1287 |
Parties | LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Douglas B. FUGATE, State Highway Commissioner of Virginia, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
Robert L. Morrison, Jr., Lexington, Va. (Gary L. Bengston, P.C., Danville, Va., Philip M. Sadler, Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, Va., on brief), for appellant.
Valentine W. Southall, Jr., Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy, Atty. Gen. of Virginia, Walter A. McFarlane, Deputy Atty. Gen. and John S. Morris, III, Asst. Atty. Gen., Richmond, Va., on brief), for appellee.
Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.
Lumbermens Mutual Casualty Company filed this action as subrogee to recover the monies it had paid as insurer for personal injuries and property damage resulting from an accident which occurred on U.S. Rt. 21-52 near Bastian, Virginia. Lumbermens alleged that a stretch of this highway was negligently designed and maintained by the Virginia Department of Highways and Transportation and that such negligence was the proximate cause of the accident. The district court, holding that the Commonwealth of Virginia was immune from suit under the Eleventh Amendment, dismissed the action. The plaintiff has appealed.
The plaintiff contended that Virginia had waived its Eleventh Amendment immunity by the acceptance and disbursement of federal funds pursuant to the Federal-Aid Highway Act, 23 U.S.C. § 101, et seq. In rejecting this contention the district court relied upon the Third Circuit's decision in Daye v. Commonwealth of Pennsylvania, 483 F.2d 294 (1973), cert. denied 416 U.S. 946, 94 S.Ct. 1956, 40 L.Ed.2d 298. In that case, which was strikingly similar to the one at hand, the court stated:
(Footnote omitted.) 483 F.2d at 298....
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Smith v. Bernier
...waiver of the state's Eleventh Amendment immunity to negligence actions for damages in federal court. See Lumbermen's Mutual Casualty Co. v. Fugate, 569 F.2d 213, 214 (4th Cir.1978) (Virginia did not waive immunity by receiving and disbursing federal highway funds; "mere participation in a ......