holding that "[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State’s liability insurance coverage, fall outside the traditional constitutional bar to suits against the State”
How later courts described this case
- holding that "[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State’s liability insurance coverage, fall outside the traditional constitutional bar to suits against the State”
- recognizing that “where recovery is sought against the State’s liability insurance coverage, the doctrine of constitutional immunity, designed to protect the public purse, is simply inapplicable.”
- holding that suits which seek recovery under and up to the limits of the State’s liability insurance coverage are not barred by sovereign immunity
- “[I]f the court dismisses the action rather than transfers it, such an order is immediately appeal-able as a final judgment.”
Written by the judges who cited it.
The opinion
NEELY, Justice,
concurring in part and dissenting in part:
Although I agree with the narrow result in this case, I must disassociate myself *758 from an opinion that pretends to answer questions that this Court has not been asked. Ordinarily a dissent to dicta is like the sound of one hand clapping; however, when an opinion attempts to stretch dicta into a definitive statement of law, such a frolic and detour is dangerous and requires a response. The danger of undisciplined dicta is that lawyers and nisi prius judges may take it seriously. Improvident dicta may skew settlement negotiations for years before a party with sufficient assets begs this Court to “reconsider” a ruling which in reality it never rendered. Therefore, law must be written with care. It is meant to be an exercise of the mind, not a venting of the spleen.
There is nothing “specious” about the “tenet of law that state agencies are immune to suit under W.Va. Const, art. VI, § 35.” Majority opinion at p. 680. Although this Court has carved exceptions to art. VI, § 35, such as permitting mandamus to compel the State to condemn when property has been taken, these exceptions are within the original intent of the constitutional framers. The purpose of art. VI, § 35 is to protect the treasury of the State from a wholesale invasion that would divert money from legislatively appropriated purposes to the payment of court awards.
In the case before us, the State has waived the immunity granted by art. VI, § 35 by purchasing an insurance policy under a statute, Code, 29-12-5 [1957] that explicitly forbids the insurance carrier from asserting the defense of sovereign immunity in suits within the coverage limits. The State, through her legislature, has chosen therefore to protect persons injured on State property through insurance. Court awards for this class of protected persons are the result of a conscious legislative decision to allocate a fixed amount of money for the protection of tort victims. That decision does not mean that the legislature could not have properly chosen to rely on sovereign immunity in such cases and to expend limited state funds for other purposes.
The exclusive venue provision of W.Va. Code, 14-2-2 [1976] that requires actions against the State or her officials to be brought at the seat of government is designed to protect state officials from vexatious litigation in counties far distant from their daily duties. The suit under consideration here, however, is not against the State or its officers but rather against an insurance carrier. Protection of the carrier from jury prejudice determines that the carrier not be named as a party; nonetheless, the fiction of the caption does not change the underlying nature of the suit.
Because the action is not against the State, it stands to reason that no policy goal of Code, 14-2-2 [1976] is served by limiting venue to Kanawha County. In fact, the exact opposite is the case; if the exclusive venue statute were applied in a circumstance such as this where it was not intended to apply, legislative policy would be confounded. By authorizing insurance for State agencies in Code, 29-12-5 [1952], and waiving art. VI § 35 immunity up to the coverage limits, the Legislature obviously intended to place victims of State torts on a par with victims of private torts. If we interpret Code, 14-2-2 [1976] to apply in cases like the one before us, we would create a significant obstacle to the parity the legislature sought to create between tort victims.
That is all there is to this case; but it is not all there is to the majority opinion. Apparently, the author of the majority opinion did not agree with the drafters of our State Constitution who believed sovereign immunity was necessary to protect the state coffers. Some reasonable men might even agree. Neither the existence of his opinion nor even its correctness, however, can erase the words from the page. That is the essence of constitutional government, government by law and not men. If judges are not mindful of that restraint, who will be?
Like much of the law, today’s case requires us to fit a square peg into a round hole. The fit is not perfect; but our solution appears rational, and given the overall legislative intent does no violence to any constitutional or legislative policy. I vigorously dissent, however, to any implication *759 in the majority opinion that art. VI, § 35 does not protect the State from suit, and dissent even more vigorously to the further implication that this Court, sworn as we are to uphold the Constitution of the State of West Virginia, and bounded as we are by the limits of human rationality, would hold a State constitutional provision unconstitutional under the State Constitution.