Nickell v. Westervelt, Civ. A. No. 71-C-27-C(Re).

• Decision Date: 26 January 1973
• Docket Number: Civ. A. No. 71-C-27-C(Re).
• Citation: Nickell v. Westervelt, 354 F.Supp. 111 (W.D. Va. 1973)
• Court: U.S. District Court — Western District of Virginia
• Parties: James R. NICKELL et al., Plaintiffs, v. Dr. Frederic B. WESTERVELT, Jr., et al., Defendants.

354 F. Supp. 111

James R. NICKELL et al., Plaintiffs, v. Dr. Frederic B. WESTERVELT, Jr., et al., Defendants.

Civ. A. No. 71-C-27-C(Re).

United States District Court, W. D. Virginia, Charlottesville Division.

January 26, 1973.

Larry E. Losch, Billheimer & Losch, Montgomery, W. Va., for plaintiffs.

Edward R. Slaughter, Jr., Charlottesville, Va., for defendant Westervelt.

D. B. Marshall, Paxson, Marshall & Smith, Charlottesville, Va., for defendant Williams.

Ruling On Motion To Dismiss

DALTON, Chief Judge.

This case is before the court upon remand from a Fourth Circuit Court of Appeals per curiam decision issued October 2, 1972. On Appeal, the Fourth Circuit vacated the motion to dismiss ordered by this court on January 1, 1972, but granted plaintiffs' leave to amend, in view of a recent decision, Miller, Adm. v. Perry, 456 F.2d 63 (4th Cir. 1972), in which the court held that diversity of citizenship is determined by the citizenship of the beneficiaries rather than by the citizenship of the administrator. Pursuant to the Fourth Circuit decision, this court on November 10, 1972 ordered that the motion to dismiss be sustained and granted leave to plaintiffs to amend by adding the Virginia Administrator as party plaintiff.

On November 17, 1972, plaintiffs filed an amended complaint, founded upon diversity of citizenship, 28 U.S.C.A. § 1332, with plaintiff James R. Nickell, administrator of the estate of Hazel Nickell, and the beneficiaries of Hazel Nickell alleged residents of West Virginia and the defendants residents of Virginia.

Plaintiffs seek recovery for the wrongful death of Hazel Nickell and allege that defendants were negligent in their medical treatment and care for her on October 18, 1969. Mrs. Nickell had previously been a patient of Dr. Westervelt and on October 17, 1969 she began hemorrhaging from the nose and mouth and was rushed to the University of Virginia Hospital from her home in Rupert, West Virginia, arriving at 1:00 a. m. on October 18, 1969. Dr. Westervelt was informed by telephone of her condition and did not arrive until 8:00 a. m. that morning and she died on that same day of uremic poisoning, after receiving treatment from both defendants. Plaintiffs seek damages in the amount of $50,000, jointly and severally.

On December 7, 1972, defendant Peter M. Williams filed a motion for summary judgment. On December 7, 1972, defendant Frederic B. Westervelt filed a motion to dismiss.

At a pretrial conference held on December 14, 1972, the plaintiffs agreed to a dismissal of the action against Dr. Williams with prejudice, and on January 4, 1973, this court ordered the action dismissed with prejudice against the defendant, Dr. Peter M. Williams. However the action still remains against the defendant, Dr. Frederic B. Westervelt, and the court will now consider the defendant's motion to dismiss.

The primary questions for the court to consider are: 1) Does the doctrine of sovereign immunity apply, and 2) Did the action accrue within the two-year period of limitations as outlined in Section 8-634 of the Code of Virginia (1957 Repl.Vol.).

The court will first consider the question of sovereign immunity. Defendant states that at the time he treated Mrs. Nickell, he was a physician and surgeon on the staff of the University of Virginia Hospital and a member of the faculty of the University of Virginia Medical School. The University of Virginia, represented by its Rector and Board of Visitors, is an agency of the Commonwealth of Virginia, and at the time of treatment of the deceased, defendant was an employee of the Commonwealth. He alleges that any decisions he made which relate to the plaintiff's claim were discretionary in character. He also states that any acts which he undertook as a physician and surgeon were the acts of the Commonwealth of Virginia. Defendant alleges that the Commonwealth of Virginia, as well as its agents, officers and employees, is immune to an action for negligence or other tortious actions without its consent. Since the General Assembly of Virginia has not consented to this action in tort against its employee, defendant alleges that he is immune from liability.

The court recognizes that the leading authority for sovereign immunity in Virginia is Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942), a case involving an action against two state employees, where the Supreme Court of Virginia said:

A State cannot be sued except by its permission, and even if the suit, in form, be against the officers and agents of the State, yet if, in effect, it be against the State, it is not maintainable. Sections 2578 to 2583 of the Virginia Code (Michie) provide the only cases and the procedure in which actions may be maintained against the State. There is no statute which gives a right to anyone to sue the State for tort. 180 Va. 225, 22 S.E.2d 10.

The Supreme Court further stated that "as long as * * * the state's agents act legally and within the scope of their employment, they act for the State, but if they act wrongfully their conduct is chargeable to them alone." Id....