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Lack of insurance preserves sovereign immunity



Complainant Carmela Powell ("plaintiff") sued Defendant's State of Delaware, Department of Corrections ("Defendant") alleged that she was injured when she visited a prisoner at the James T. Vaughn War Center. The complaints allege that the defendant neglected caused the plaintiff's injuries.

For most of American history, sovereign immunities protected federal and state governments and their employees from being sued without their consent. However, from the mid-1900s, a trend towards government responsibility began to weaken sovereign immunity. In 1946, the federal government passed the Federal Damages Claim Act (28 U.S.C. 2626), waiving immunity for suitability and liability for certain actions. Many, but not all, state legislators followed the adoption of statutes to define the limits of immunity for state government entities and employees.

Sovereign immunity has two forms:

  1. immunity from suit (also known as immunity from jurisdiction or judgment) and
  2. immunity from enforcement .

The former prevents the claim. the latter even prevents a successful dispute from collecting a verdict.

FACTS

I Carmela Powell v. State Of Delaware Department of Corrections, C.A. No. N1

8C-12-233 ALR, Supreme Court of Delaware (June 16, 2020), before the Court, a motion by the defendant to dismiss the complaint, claiming that the complainant's claims are hindered by the sovereign immunity doctrine. [19659002] Attached to the defendant's proposal was a position of Debra Lawhead, the insurance protection administrator in the state of Delaware, which supports the defendant's argument of sovereign immunity by establishing the defendant no insurance and had not waived the immunity. The Court converted the defendant's motion to reject a motion for summary judgment and gave the parties additional time to present all material relevant to such a motion.

ANALYSIS

The Court may only issue a summary judgment where the moving party can show that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law. A genuine matter of material fact is one that can reasonably be resolved for the benefit of either party.

The doctrine of sovereign immunity provides that neither the state nor a state agency can be sued without its consent. However, the General Assembly can waive sovereign immunity through a law that clearly proves an intention to do so. There are two ways in which the state can waive sovereign immunity: by providing insurance coverage for claims in the complaint; or by a statute expressly waiving immunity.

Miss Lawhead's position stated that the state has not waived immunity. Lawhead states that she reviewed the complaint that the State of Delaware and its agency did not purchase any insurance that would apply to the circumstances and events alleged in the complaint. Miss Lawhead's confirmation confirms that no other statute waives immunity in this case – a proposal that the plaintiff has not challenged.

Accordingly, the doctrine of sovereign immunity has prevented the plaintiff's claims against the defendant and the defendant is therefore entitled to judgment

States often purchase insurance to protect and defend the public against negligent acts by government officials, agents or employees and, if there is no any insurance, waives immunity through laws. The wise state seeks to protect the state's assets and avoid disputes by refusing to purchase liability insurance and / or refusing to waive sovereign immunity. Whether or not the defendant was negligent in causing harm to Powell, the defendant was immune to the suit of the ancient doctrine of sovereign immunity.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE now restricts its practice to act as an insurance consultant specializing in insurance coverage, insurance claim management, bad faith insurance and insurance fraud insurance. and policyholders. He also acts as arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and insurance service and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

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