Wagoner v. Brown

43 Va. Cir. 225, 1997 Va. Cir. LEXIS 360

• Court: Henry County Circuit Court
• Decided: August 7, 1997
• Docket: Case No. CL96-172
• Status: Published

Opinion

By Judge David V. Williams

This matter has come to he heard on two separate issues: one, a motion to compel production of any statements made by defendant Brown to his insurance company; and two, a plea in bar filed on behalf of die defendant, School Board.

I turn first to the motion to compel The plaintiffs mid defendant Brown agree that the accident in question took place on December 5, 1995; that a letter of representation of plaintiffs by plaintiffs law firm was prepared and mailed mi December 8,1995; and that Allstate took a recorded statement from Brown on December 7, 1995. The defendant asserts die privilege of the work product doctrine.

The court would very much like to invoke some bright line rule in issues such as this, but I unfortunately come to the conclusion that each situation must be looked at on a case by case basis.

Based upon die facts of this case, I am of the opinion that the defendant has established that the statement in question was taken by Allstate in anticipation of litigation and is therefore not discoverable, absent a showing of substantial need on the part of the plaintiffs. As plaintiffs have not met that burden, die statement is not discoverable and the plaintiff’s motion to compel is denied.

I turn now to the defendants, Benson and School Board’s plea in bar. The plaintiffs motion for judgment alleges that Teresa Benson, die driver of the school bus, was negligent in foiling to direct the plaintiff to cross the road. (Para. # 8 and # 10.) The School Board is alleged to be responsible to die plaintiffs under die doctrine of respondeat superior, As part of this grounds of defense, both Benson and School Board filed a plea in bar claiming sovereign immunity.

As a general rule, the doctrine of sovereign immunity is alive and well in Virginia. The Virginia Tort Claims Act does not remove or diminish the sovereign immunity of counties, cities, or towns, and the courts of the Commonwealth have taken the view that any waiver of immunity must be construed narrowly. See, Messina v. Burden, 228 Va. 301 (1984), and Hinchey v. Ogden, 226 Va. 234 (1983).

Local School Boards have traditionally been accorded sovereign immunity in Virginia. See Kellam v. School Bd., 202 Va. 252 (1960). Employees of the School Board enjoy the same immunity for torts involving only simple negligence. Lentz v. Morris, 236 Va. 78 (1988). See also James v. Jane, 221 Va. 43 (1980). However, Virginia Code § 22.1-194 does provide that, In case die locality or the School Board is the owner, or operator through medium of a driver, of, or otherwise is the insured under die policy upon, a vehicle involved in an accident, the locality or School Board shall be subject to action up to, but not beyond, the limits of valid and collectible insurance in force to cover the injury complained of... and the defense of governmental immunity shall not be a bar to action or recovery. ”

The School Board’s plea is based on three arguments: (1) hand signals do not constitute part of the operation of die bus; (2) the school bus, itself was not involved in an accident; and (3) there is no valid and collectible insurance.

I begin with the third argument; that is, whether diere is valid and collectible insurance in this case. The policy in question provides, “We will pay all sums anyone we protect legally must pay as damages caused by an accident covered by this policy. The accident must arise out of the ownership, maintenance, use, loading, or unloading of an auto we insure. ”

After reviewing the cases of Erie v. Jones, 248 Va. 437 (1994), Stern v. Cincinnati Ins. Co., 252 Va. 307 (1996), State Farm Mut. Aut. Ins. Co. v. Powell, 227 Va. 492 (1984), and State Farm Mut. Auto. Ins. Co. v. Rice, 239 Va. 646 (1990), I am of the opinion that the accident in question did not arise out of die ownership, maintenance, use, loading, or unloading of die school bus. Therefore, diere is no coverage, and sovereign immunity is not waived.