Turnbull v. Fink
| Decision Date | 21 June 1995 |
| Docket Number | 1994,No. 79,79 |
| Citation | 668 A.2d 1370 |
| Parties | Mark TURNBULL, as Guardian Ad Litem for Steven Turnbull, a minor, Plaintiff Below, Appellant, v. Kenneth FINK, Administrator of the Estate of Patricia Turnbull, Kenneth DeShields, and Delaware Authority for Regional Transit, Defendants Below, Appellees. Lorraine J. SHENTON, Plaintiff Below, Appellant, and State Farm Mutual Automobile Insurance Company, Defendant Below, Appellant, v. DELAWARE ADMINISTRATION FOR REGIONAL TRANSIT, a/k/a DART, and Franklin Cooper, Jr., Defendants Below, Appellees. Rosemarie MYERS and Jean Sachs, Plaintiffs Below, Appellants, v. DELAWARE ADMINISTRATION FOR REGIONAL TRANSIT, a/k/a DART, and Franklin Cooper, Jr., Defendants Below, Appellees. The TRAVELERS INSURANCE CO., Vernalee P. Frey, and Virgil Frey, d/b/a Claymont Hardware and Supply, Plaintiffs Below, Appellants, v. DELAWARE ADMINISTRATION FOR REGIONAL TRANSIT, a Delaware corporation, and Franklin Cooper, Jr., Defendants Below, Appellees. Virgil FREY, Vernalee Frey, his wife, Mark O. Frey, and V.V.M. Inc., t/a Claymont Hardware and Supply, v. DELAWARE ADMINISTRATION FOR REGIONAL TRANSIT, a/k/a DART, and Franklin Cooper, Jr., Defendants Below, Appellees. . Submitted: |
| Court | Supreme Court of Delaware |
Upon appeal from the Superior Court: AFFIRMED.
Eric M. Doroshow (argued), Martin J. Siegel and Julia Scott, Doroshow & Pasquale, Wilmington, for appellant Mark Turnbull as Guardian Ad Litem of Steven Turnbull.
Raymond E. Tomasetti, Jr. (argued), Newport, for appellant, Lorraine J. Shenton.
Jeffrey S. Marlin, Biggs & Battaglia, Wilmington, for appellants Mark O. Frey and V.V.M. Inc., t/a Claymont Hardware & Supply, and Vernalee Frey and Virgil Frey d/b/a Claymont Hardware.
William X. Moore, Jr., Roeberg, Moore & Assoc., Wilmington, for appellants Rosemarie Myers and Jean Sachs.
John D. Balaguer (argued), and Mary E. Sherlock, White & Williams, Wilmington for appellees DeShields, Cooper and DART.
Wayne A. Marvel, McCarter & English, Wilmington, for amicus curiae, Defense Counsel of Delaware.
Steven T. Davis, Bailey & Wetzel, P.A., Wilmington, for appellant Travelers Insurance Co.
Robert Jacobs, Jacobs & Crumplar, P.A., Wilmington, for amicus curiae Delaware Trial Lawyers Ass'n.
Carolyn H. deBernard, Law Offices of Robert Young, Dover, for appellant State Farm Insurance Co.
James J. Hanley, State of Delaware, Department of Justice, Wilmington, for State of Delaware, Department of Transportation.
Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT, and BERGER, JJ., constituting the Court en Banc.
This is an Interlocutory Appeal. The Plaintiffs-Appellants challenge pre-trial rulings of the Superior Court as to the extent to which the State waived its sovereign immunity by the purchase of commercial liability insurance covering accidents involving two buses operated by the Delaware Administration for Regional Transit ("DART"). The issue presented to the Superior Court was which statute controls these proceedings: 2 Del.C. § 1329, enacted by 66 Del.Laws C. 360 ("1989 Bond Act"), or 18 Del.C. § 6511. Title 2, Del.C. § 1329 waives the State's sovereign immunity, as to DART, up to a maximum of $300,000 for each occurrence, if DART has in place the commercial insurance coverage authorized to be purchased by the 1989 Bond Act. Title 18, Del.C. § 6511 waives sovereign immunity generally, up to the limit of insurance coverage, if there is in place the insurance authorized to be purchased under that Section.
The Superior Court held that, as between 18 Del.C. § 6511 and 2 Del.C. § 1329, Section 1329 was the more specific and later enacted statute and, therefore, its provisions control. Consequently, the Superior Court determined that 2 Del.C. § 1329 limits the State's waiver of sovereign immunity, as to accidents involving DART, to the lesser of the amount of applicable insurance coverage, or $300,000. The Superior Court held, alternatively, that because the applicable insurance coverage was not purchased as part of the State Insurance Coverage Program created by 18 Del.C. § 6511, the waiver of sovereign immunity provided by 18 Del.C. § 6511 could not apply.
The Superior Court granted the Plaintiffs'-Appellants' Motion for Certification of an Interlocutory Appeal and we accepted it pursuant to Supreme Court Rule 42(b). We then granted the motions of the Delaware Trial Lawyers Association and Defense Counsel of Delaware to file amicus curiae briefs in support of appellants' position.
We agree with the holding of the Superior Court. Accordingly, the interlocutory rulings of the Superior Court are affirmed.
Five actions were filed in the Superior Court seeking damages arising out of two accidents involving buses operated by DART, a State agency. The suits were consolidated in the Superior Court. At the time of the accidents, DART had primary liability insurance coverage with Reliance Insurance Company in the amount of $1 million per occurrence for which it had paid $609,113 as the annual premium. In addition, DART had an umbrella policy with General Star Indemnity Company in the amount of $5 million, for which it had paid an annual premium of $160,000. DART also carried excess coverage insurance with Crumb and Forster in the amount of $5 million, purchased with an annual premium of $40,000. 1
The issue is whether 2 Del.C. § 1329, enacted by Section 68 of the 1989 Bond Act, which waives the sovereign immunity of the State up to a maximum of $300,000 for each occurrence, if there is applicable commercial insurance coverage, or 18 Del.C. § 6511 which waives sovereign immunity without limit, if there is applicable insurance coverage, controls in this instance.
Sovereign immunity has been a part of the law of Delaware throughout the State's history. This Court first considered the question of sovereign immunity as applied to a lawsuit brought against the State in the case of Shellhorn & Hill, Inc. v. State, 55 Del. 298, 187 A.2d 71 (1962). In that case, Justice Wolcott noted that sovereign immunity is not a judicially created doctrine, but rather, was part of the common law of England at the time of the American Revolution. The Shellhorn court took note of the long tradition of sovereign immunity enjoyed by English monarchs and held that because sovereign immunity was unquestionably a part of the English common law prior to 1776, it was retained by Article 25 of the 1776 Constitution, which provided that the common law of England would remain in force in Delaware until altered by the newly formed Delaware General Assembly.
The 1792 Constitution, in Article I, § 9, directly addressed sovereign immunity, providing that "suits may be brought against the state, according to such regulations as shall be made by law." That language, present without alteration in all successive Delaware Constitutions, reinforced the constitutional basis for the doctrine of sovereign immunity in Delaware, subject, however, to waiver by the General Assembly. Id. at 74.
Sovereign immunity, therefore, is an absolute bar to liability claims against this State unless it is waived by the General Assembly. Wilmington Housing Authority v. Williamson, Del.Supr., 228 A.2d 782, 786 (1967).
All the parties agree that DART, as a state agency, is protected by the doctrine of sovereign immunity unless a waiver has occurred. Similarly, they assert that sovereign immunity, at least partially, has been waived as to the accidents that are the subject of this action, but they differ as to the extent of the waiver. 2 Appellants and amici assert that the doctrine of sovereign immunity has been waived, up to the amount of liability insurance coverage ($5 million), pursuant to 18 Del.C. § 6511. The other parties contend that 2 Del.C. § 1329, enacted by Section 68 of the 1989 Bond Act, which waives sovereign immunity only up to $300,000 per occurrence, applies.
DART is governed by the Delaware Transportation Authority Act, 2 Del.C., Chapter 13. 3 Title 2, Del.C. § 1329, enacted by Section 68 of the 1989 Bond Act, addresses the issue of liability as to any service provided by the Delaware Transportation Authority ("Authority"). It states, in pertinent part:
Any operation, service or program provided by the Delaware Transportation Authority ... not covered by a general liability policy, self-insurance or other insurance policy as shall be legally established and funded by said Authority shall be covered and protected by the doctrine of sovereign immunity of the State which shall be applicable not only to the Authority but to each of its agencies, administrations, subsidiaries and each of their respective officers and employees ... In the event that insurance has been provided, such claim, including any award for damages or costs assessed against the Authority, its administrations, subsidiaries, officers or employees either individually or on behalf of their employer shall not exceed the amount of said insurance covering the risk or loss or the amount of $300,000 whichever amount shall be lesser for any and all claims arising out of a single occurrence (emphasis added).
This language states the general rule that DART, as a State agency operated by Authority, is protected against tort claims by the doctrine of sovereign immunity unless the General Assembly has waived it. Only a limited exception to this general rule of immunity is provided, and that exception has two requirements: there must be liability insurance and any recovery against DART cannot exceed the limit of $300,000 for a single occurrence.
Appellants, nevertheless, assert that 18 Del.C. § 6511 controls instead. It was enacted in 1970 as part of 18 Del.C., Chapter 65, "Insurance for the Protection of the State." 18 Del.C. § 6511 states:
The defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be...
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