- Follow Statutory Provisions under the State Tort Claims Act
immunity does not invalidate a claim, it only makes the defendant immune
from suit and the relief to which the immunity applies. Further,
government actors, in their individual and official capacities, are not
protected by sovereign immunity for intentional torts or for actions
committed outside of the scope of their employment.
"[T]he doctrine of sovereign
immunity is 'alive and well' in
." Niese v. City of Alexandria, 264
230, 238, 564 S.E.2d 127, 132 (2002) (quoting Messina
v. Burden, 228
301, 307, 321 S.E.2d 657, 660 (1984)). "Sovereign
immunity is a rule of social policy, which
protects the state from burdensome interference with the performance of
its governmental functions and preserves its control over state funds,
property, and instrumentalities." City of
v. Carmichael Dev. Co., 259
493, 499, 527 S.E.2d 778, 781 (2000)
v. Cunningham 604 S.E.2d 420, 426 (2004).
Notwithstanding the Virginia Supreme Court has not backed off of
its clarifying decision in Fox v.
412, 423-24, 362 S.E.2d 699 (1987).
There the Virginia Supreme Court reversed the decision of the
trial court to grant defendants sovereign immunity from the tort claims,
explaining “The tort counts not only allege that these defendants
committed intentional torts, but that they were acting outside the scope
of their employment as well. Resolution of these allegations requires an
evidentiary hearing. (In Neise, the plaintiff sued the City of
Alexandria only, which asserted sovereign immunity.) The defendants are not immune if the evidence
establishes that (1) they committed intentional
torts, irrespective of whether they acted within or without the
scope of their employment, Elder
v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372_73 (1967), or (2) they acted outside
the scope of their employment, see
Messina v. Burden, 228 Va. 301, 311, 321 S.E.2d 657, 662 (1984).”
sovereign immunity has never been applied to contract claims.
The notion that sovereign immunity
applies to contract
claims has been specifically rejected by
's Supreme Court on several occasions. In Wiecking v. Allied Medical
548, 391 S.E.2d 258 (1990), the Court said:
The doctrine of sovereign
immunity is "alive and well" in
, as a defense to actions in tort ... but we have never extended that
defense to actions based upon valid contracts
entered into by duly authorized agents of the government.... [T]he
enactment of tort-claims legislation leaves unimpaired the existing
remedies against the government for breaches of contract,
even for contracts
implied in fact which contain elements of a tort.
at 551-52. See also
60, 62, 486 S.E.2d 297 (1997); Jenkins v. County of Shenandoah,
467, 470, 436 S.E.2d 607 (1993). As
was said by Justice Russell in County of York v. King's Villa,
226 Va. 447, 309 S.E.2d 332 (1983)(dissenting), "[t]here is no
doctrine of sovereign immunity in the
law of contracts; a governing body is as
accountable for breach of a valid contract
as any other party would be." 226
at 554. See Goff v. J. Sargeant Reynolds Community College 2004 WL
2093444, *1 (
Va. Cir. Ct.
Va. Cir. Ct.
are not immune from suit based upon sovereign immunity for the equitable
relief of declaratory judgment and injunctive relief. But
See contra, Hinchey
v. Ogden, 226
234, 307 S.E.2d 891 (1983).
An action is not against the state for purposes of sovereign
immunity when it seeks to restrain action or compel state officials to
perform their duties.
v. Com., Dept of State, Bureau of Professional & Occupational
Commw. 12, 564 A.2d 551 (1989)(defense of sovereign immunity
inapplicable where petitioner sought declaration which would result in
restraining state officials from revoking or suspending licenses of
chiropractors who use term “chiropractic physicians”),
Franks v. Tucker, 132
App. 3d 455, 476 N.E.2d 1315 (1st Dist. 1985)(where suit
brought against state officials seeks to compel them to perform their
duty, it is not action against state).