Petition — Nevada v. Hall

7” Supreme Court, U. S

FILED

MAR 22 1976

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

UNIVERSITY OF NEVADA, and the

STATE OF NEVADA,

Petitioners,

Vv .

JOHN MICHAEL HALL, Minor by and Through His

Guardian Ad Litem JOHN C. HALL and PATRICIA

HALL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

to the Court of Appeal for the State of

California First Appellate District

Division Four

Robert List

Attorney General

State ot Nevada of Nevada

! James H. Thompson

Orbe ct the Chief Deputy

Attorney General

! Zeneto

attorney Ce Michael W. Dyer

0. le Deputy Attorney

Coptol Comp ¥ rm. ae A

larren ty, Nevede

EII/O

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM 1977

No.

UNIVERSITY OF NEVADA and the

STATE OF NEVADA,

Petitioners,

v.

JOHN MICHAEL HALL, Minor by and

through his Guardian Ad Litem

JOHN C. HALL and PATRICIA HALL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL FOR THE STATE OF

CALIFORNIA FIRST APPELLATE DISTRICT

DIVISION FOUR

Robert List

Attorney General of

Nevada

| James H. Thompson

| Chief Deputy

Attorney General

Michael W. Dyer

Deputy Attorney

General

sere ue

SUBJECT INDEX

Opinion Below .

Jurisdiction

Questions Presented .

Statutory Provisions Involved .

Statement of the Case

Reasons for Granting the Writ

The Decision Below Involved a

Substantial Federal Question

which has not been Decided ”

this Court —

To Resolve the Question of

Whether a State may, Without

her Consent, be sued in a

Sister State's Courts in

Actions Arising from the

Performance of Governmental

Functions

To Resolve the Ouestion of

Whether a State Consents to

Suit by Sending Employees

into Sister States to Perform

Governmental Func*ions

To Determine Whether when a

State, by Statute, Consents

to Suit in the Courts of

Sister States,the Forum State

is Obligated to give Full

Faith and Credit to any

Limitations placed on such

Consent

Page

11

13

SUBJECT INDEX

Conclusion .

Appendices

Certificate of Service

Page

14

TABLE OF AUTHORITIES CITED

Cases Pages

Beers v. Arkansas, 61 U.S. 527,

529 (1857) 8

Cunningham v, Macon and Brunswick

R.R. Co.. 109 U.S. 446, 451

(1883) Ae 8

Edelman v. Jordan, 415 U.S. 651

A a a ae 13

Estin v. Estin, 334 U.S. 541,

545 (1948) OL a 8

Great Northern Life Insurance Co.

v. Read, 322 U.S. 47 (1944)... 13

Hall v. University of Nevada 8

Cal.3rd 522, 503 P.2d 1363,

105 Cal.Rptr. 355 (1972) cert

denied 414 U.S. 820 (1973) . .2,4,7,11

Magnolia Petroleum Co. v. Hunt,

320 U.S. 430, 440 (1943)

rehearing denied 321 U.S.

UTE 2 ws 6 6 6 © + © «

Order of United Commercial

Travelers of America v. Wolfe,

331 U.S. 586, 618 (1947) 7,8

Parden vy. Terminal Railroad

of Alabama Docks Dept.,

377 U.S. 184 (1964) .... 11,12,13

Sherrer v. Sherrer 334 U.S.

(i EE «¢ » 6 « «© ¢ 7

TABLE OF AUTHORITIES CITED

Constitution Pages

United States Constitution,

Article 1, Section 8, Clause 3. ll

United States Constitution,

Article 4, Section l, Full

Faith and Credit Clause. 3,4, 7, 8, 13

United States Constitution,

Eleventh Amendment ....... 10

Statutes

United States

a 0.6.6. Beeee Gee” eos «4 ' 64 2

Nevada Revised Statutes

Section 41.031

41.032

41.033

41.0333

41.0335

| PN aye eau as

41.035 ioc ee 6% Oe

41.036 , ORR Ye eee

41.037

41.038

41.039

WW WW WWW WWW Ww

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1977

No.

UNIVERSITY OF NEVADA and the

STATE OF NEVADA,

Petitioners,

Vv.

JOHN MICHAEL HALL, Minor by and

through his Guardian Ad Litem

JOHN C. HALL and PATRICIA HALL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeal for the State of

California First Appellate District

Division Four

The Petitioners State of Nevada

and University of Nevada respectfully

pray that a Writ of Certiorari be issued

to review the worm and opinion of the

Court of Appeal of the State of California

First Appellate District-Division Four,

entered in this proceeding on October 24,

1977.

a

OPINION BELOW

The opinion of the Court of

Appeal of the State of California, First

Appellate District, Division Four, and

the opinion of the California Supreme

Court in the case of Hall v. University

of Nevada, 8 Cal.3rd 522, 503 P.2nd 1363,

105 Cal. Rptr. 355 (1972) cert denied

414 U.S. 820 (1973) upon which the deci-

sion of the Court of Appeal of the State

of California is primarily based appear

in the Appendix hereto.

JURISDICTION

The judgment of the Court of

Appeal of the State of California was

entered on October 24, 1977. A Petition

for hearing in the California Supreme

Court was timely filed pursuant to the

California Rules of Court. The Petition

for Hearing in the California Supreme

Court to review the judgment of the Court

of Appeal of the State of California was

denied on December 22, 1977. This Peti-

tion for Certiorari was filed within 90

days of that date. This court's juris-

diction is invoked under 28 U.S.C.,

§1257 (3).

QUESTIONS PRESENTED

Whether it is constitutionally

permissible for a State to ignore the

sovereignty of Sister States when such

Sister States are performing governmen-

tal functions within the boundaries of

the forum State.

Whether it is constitutionally

permissible for a State, without her con-

sent, to be sued in the courts of a Sister

State.

Whether performing governmental

functions outside a State's borders strips

a State of sovereignty for purposes of the

sovereign immunity doctrine.

Whether a State consents to suit

in a Sister State's courts by sending em-

ployees into the Sister State to perform

governmental functions.

Whether, when a state statutor-

ily consents to suit in the courts of her

Sister States, the Full Faith and Credit

Clause of the United States Constitution

requires the courts of the Sister State

to recognize and apply any limitations

on liability contained in the statutory

consent.

STATUTORY PROVISIONS INVOLVED

Nevada Revised Statutes 41.03l-

41.039 inclusive and specifically Nevada

Revised Statutes 41.035. These statutes

contain the waiver of sovereign immunity

by the State of Nevada and the limitation

placed upon liability therein. The

statutory provisions are fully set forth

in the Appendix.

STATEMENT OF THE CASE

On May 13, 1968 an employee of

the University of Nevada Reno, a govern-

mental arm of the State of Nevada, was

involved in a motor vehicle accident in

Placer County, California. As a result

of the motor vehicle accident a complaint

for money damages was filed by respondents

in the Superior Court for the County of

San Francisco, State of California, on May

12, 1969. It is conceded that at the time

of the accident the employee was engaged

in official University business and the

fact of his agency is not disputed.

Petitioners’ motion to quash

service of process was granted. Respon-

dents appealed to the District Court of

Appeal for the State of California and

subsequently to the California Supreme

Court. The California Supreme Court, in

a decision reported as Hall v. University

of Nevada, 8 Cal.3rd 522, 503 P.2nd 1363

105 Cal. Rptr. 355 (1972) cert denied

414 U.S. 820 (1973), reversed the lower

court's decision and remanded the case

to the trial court.

At the trial petitioners moved

for an order limiting the amount of

damages to the statutory limitation on

liability set forth in Section 41.035 of

the Nevada Revised Statutes. Petitioners

also requested a jury instruction re-

stricting the amount of damages to

Nevada's statutory limitation. Peti-

tioners' requests, which were based upon

Article 4, Section 1 of the United States

Constitution, were denied. At the

conclusion of trial respondents

were awarded damages in the amount of One

Million One Hundred Fifty Thousand Dollars

($1,150,000).

Following the award of damages

petitioners sought, and respondents re-

fused, a stipulation that no execution on

the judgment would be taken pending the

appeal and review process. This stipula-

tion was necessary due to the fact that

Nevada collects sales tax revenue from

major corporations doing business in

Nevada through said major corporations'

regional headquarters within the State of

California. Thus in any given accounting

quarter there will be more than suffi-

cient funds to satisfy the judgment from

Nevada moneys situated in California

banks. Respondents are aware of the

California banks in which the Nevada

accounts are situated and thus it will

not be necessary for respondents to sue

on the California judgment in the State

of Nevada.

An appeal from the Money Judg-

ment was timely filed with the Court of

Appeal of the State of California, First

Appellate District, Division Four. A

decision adverse to petitioners was

1/

Decision on the Petition for Certiorari

should not proceed on an assumed simple

expedient of Nevada having an opportunity

to apply her own statutory limitation in

an action to enforce the California judg-

ment in Nevada's Courts.

o%e

rendered and a request for hearing was

timely filed in the California Supreme

Court. The California Supreme Court de-

nied hearing and this Petition for Cert-

iorari was filed.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW INVOLVES A SUBSTANTIAL

FEDERAL QUESTION WHICH HAS NOT BEEN

DECIDED BY THIS COURT

The salient issue presented is

whether a State in the performance of

governmental functions may enter the bor-

ders of Sister States without being strip-

ped of her sovereignty. This issue,

which is an issue of first impression,

inherently involves the nature of the re-

lationship of the States of the Union to

each other.

The California Court of Appeal

held that when a State exits her borders

she leaves behind every attribute of

sovereignty, save one; that one retained

attribute being the ability to have judg-

ments rendered against her. In the words

of the California court:

"We have concluded that sister

states who engage in activities

within California are subject to

our laws with respect to those

activities and are subject to suit

in California courts with respect

to those activities. When the

sister state enters into activity

in this state, it is not exercising

wiie

—

sovereign power over the citi-

zens of this state and is not

entitled to the benefits of the

sovereign immunity doctrine as

to those activities, unless this

state has conferred immunity by

law or as a matter of comity."

Opinion of the California Court

of Appeal, Appendix p. iv, quot-

ing the California Supreme Court

in the case Hall v. University

of Nevada, 8 Cal.3rd 522, 524,

503 P.2nd 1363, 105 Cal. Rptr.,

355 (1972) cert denied 414

U.S. 820 (1973). (Emphasis

added)

The gist of the conclusion of the

California Court of Appeal is that the

States within the Union are sovereigns

only within their own borders and Sister

States are free to ignore that sover-

eignty once a State exits its boundaries.

Such a proposition is unalterably oppos-

ed to the anvil of federalism upon which

the Union of once independent States was

forged.

The framers of the Constitution

were not unmindful of the need to assure

that the several States would not treat

each other as independent nations. In-

deed, the very purpose of the Full Faith

and Credit Clause was to alter the status

of the individual States as independent

foreign sovereignties, each free to ignore

the rights and proceedings of the other

and to make each, an integral part of a

single nation. Sherrer v. Sherrer, 334

U.S. 343, 355 (1978); order of United

o Pe

Commercial Travelers of America y. Wolfe,

331 U.S. 586, 618, (1947); Magnolia Petro-

leum Co. v. Hunt, 320 U.S. 430, 440 (1943)

rehearing denied 321 U.S, 801. The Full

Faith and Credit Clause thus substituted a

command for the earlier principles of

comity and basically altered the status of

the States as independent sovereigns.

Estin v. Estin 334 U.S. 541, 545 (1948).

The question which this Court is

requested to resolve is whether the status

of the member States were altered in such

a manner as to allow a State to retain the

vestiges of sovereignty when exiting its

borders to perform governmental functions.

Conversely, are the individual States free

to ignore the sovereignty of Sister States

when a Sister State is performing govern-

mental functions outside such Sister

State's boundaries. This question in-

volves and necessarily raises sub-issues

which are specified below.

TO RESOLVE THE QUESTION OF WHETHER A

STATE MAY, WITHOUT HER CONSENT, BE

SUED IN A SISTER STATE'S COURTS IN

ACTIONS ARISING FROM THE PERFORMANCE

OF GOVERNMENTAL FUNCTIONS

It is an established principle

of jurisprudence that a sovereign cannot

be sued in any court without its consent.

Beers v. Arkansas, 61 U.S. 527, 529

(1857). As stated by this Court in

Cunningham v. Macon and Brunswick R.R.

co., 109 U.S. 446, 451 (1883):

"It may be accepted as a point

of departure unquestioned,

that neither a State nor the

United States can be sued as

defendant in any court in this

country without their consent,

except in the limited class of

cases in which a State may be

made a party in the supreme

court of the United States by

virtue of the original juris-

diction conferred on that court

by the constitution."

The decision of the California Court of

Appeal is clearly in direct conflict

with the axiom that a State may not be

sued without its consent in that the

California Court of Appeal concluded

that Sister States may be sued in

California regardless of the existence

of consent.2 The necessity for review-

ing such decision is paramount.

To illuminate why a resolution

of the question presented is so compell-

ing, one need only consider a few

examples of necessary interaction be-

tween States. A prime example is an

27"After holding that the State and Uni-

versity of Nevada were not immune from

suit in California, the Court noted that

this conclusion makes ‘it unnecessary to

consider plaintiff's further contention

that the State of Nevada has consented by

Statute to suit in California'’." Opinion

of the Court of Appeal Appendix p. iv.

«fe

agency operated pursuant to interstate

compact where the agency offices are

located in one of the States which are

parties to the compact. Do the other

States to the compact subject themselves

to the whim of that State, with respect

to possible suits and judgments, by

sending employees to the agency office

to perform necessary governmental func-

tions? Or what of necessary interaction

in the executive branch? Does a State

subject itself to the possibility of

great financial exposure by sending its

Governor or officials to other States to

confer with Governors and officials of

other States? Indeed, does a State

assume the risk that Sister States will

bring her to answer in their courts when

she sends her attorneys into other

States to depose witnesses or even to

defend litigation such as this?

That a State should not be sub-

jected to suit without her consent is so

basic to the principles of federalism

that the Eleventh Amendment was added to

the United States Constitution to insure

that a State would not be sued in Federal

Courts by citizens of Sister States with-

out her consent. Thus the Federal

Government, to whom the States specifi-

cally and willingly surrendered much of

their sovereignty, does not have the

power to call a State into her courts,

except as specifically consented to in

the Constitution. However, if the

California Court of Appeal decision is

permitted to stand, any State may call

-10-

any other State into such State's trial

courts upon the whim of citizens of the

forum States.

TO RESOLVE THE QUESTION OF WHETHER A

STATE CONSENTS TO SUIT BY SENDING

EMPLOYEES INTO SISTER STATES

TO PERFORM GOVERNMENTAL FUNCTIONS

As set forth above the under-

lying basis for the decision of the

California Court of Appeal was the con-

clusion that State sovereignty ends at

State borders. The Court of Appeal based

its holding on the California Supreme

Court in Hall v. University of Nevada,

8 Cal.3rd 522, 503 P.2nd 1363, 105 Cal.

Rptr. 355 (1972) cert denied 414 U.S.

820 (1973) which concluded that when a

State enters the borders of a Sister

State she consents to being held account-

able according to the laws of such Sister

State. The principal case relied upon by

the California Supreme Court in the

earlier Hall v. University of Nevada de-

cision was Parden v. Terminal Railroad

of Alabama ‘Docks Dept., 377 U.S. 184

(1964). The California Supreme Court's

interpretation of this Court's decision

in Parden was erroneous.

In Parden, supra this court

based its opinion that Alabama was sub-

ject to suit in Federal Court in actions

arising out of the operation of an inter-

state railroad on the fact that Alabama

had ratified Article 1, Section 8, Clause

3 of the United States Constitution. In

the language of the decision:

eile

"Our conclusion is simply that

Alabama, when it began operation

of an interstate railroad approx-

imately twenty years after

enactment of the FELA, neces-

sarily consented to such suit as

was authorized by that Act. By

adopting and ratifying the Com-

merce Clause, the States empower-

ed Congress to create such a

right of action against inter-

state railroads; by enacting the

FELA in the exercise of its

power, Congress conditioned the

right to operate a railroad in

interstate commerce upon amen-

ability to suit in Federal Court

as provided by the Act; by

thereafter operating a railroad

in interstate commerce, Alabama

must be taken to have accepted

that condition and thus to have

consented to suit." Parden v.

Terminal Railroad of Alabama

Docks Dept., supra, at 192.

The holding in Parden rests upon the fact

that by ratifying the Commerce Clause of

the United States Constitution and thus

affirmatively surrendering a portion of

their sovereignty to the Federal Govern-

ment the States consented to be subject

to regulation with respect thereto.

The California court's reliance

on Parden was clearly misplaced. By

ratifying the United States Constitution

the State of Nevada did not consent to

ht.

be subjected to suits in the courts of

Sister States. The California court's

interpretation of Parden v, Terminal

Railroad of Alabama Docks Dept., supra,

was erroneous and this Court should

correct such error.

TO DETERMINE WHETHER WHEN A STATE, BY

STATUTE, CONSENTS TO SUIT IN THE

COURTS OF SISTER STATES, THE FORUM

STATE IS OBLIGATED TO GIVE FULL FAITH

AND CREDIT TO ANY LIMITATIONS

PLACED ON SUCH CONSENT

As will be fully argued if

certiorari is granted, the position of

petitioners is that the California courts

could have only obtained jurisdiction

pursuant to Nevada's statutory waiver of

sovereign immunity. It is further the

position of petitioners that Article 4,

Section 1, of the United States Consti-

tution requires that the liability limit

contained in Nevada's statutory waiver

by Nevada Revised Statutes 41.035 must

be given Full Faith and Credit by the

courts of California.

When a State gives statutory

consent to be sued it may condition its

consent by such modes and terms as it

sees fit. Edelman v. Jordan, 415 U.S.

651 (1974). Moreover in waiving sover-

eign immunity a State may prescribe

the manner and terms by which suit may

be brought. Great Northern Life

Insurance Co. v. Read, 322 U.S. 47 (1944).

If California's courts acquired juris-

diction over Nevada by Nevada's statu-

tory waiver it necessarily foliows that

the requiremencs of Full Faith and Credit

mandate that the California courts apply

the entire statutory waiver scheme in-

cluding any limitation on liability

contained therein.

CONCLUSION

As set forth above, the posi-

tion of the State of Nevada is:

(1) States of the Union are

required to acknowledge

the sovereignty of Sister

States when such Sister

States are performing

governmental functions,

either inside or outside

their borders;,

(2) That a State may not be

sued in any court without

her consent;

(3) That a State does not con-

sent to suit by sending

employees within the

borders of Sister States

for the purpose of per-

forming governmental

functions;

(4) That any jurisdiction

vested in the California

courts must necessarily

-14-

have come from the statu-

tory waiver of sovereign

immunity by the State of

Nevada; and

(5) That when jurisdiction

is acquired pursuant to

Nevada's statutory waiver

of sovereign immunity,

the requirements of Full

Faith and Credit mandate

that the entire statu-

tory waiver scheme be

adhered to and that the

limitation on liability

contained therein be

applied.

Petitioners reemphasize that re-

spondents do not need to sue in the State

of Nevada to enforce the California Judg-

ment. Respondents are aware of the

existence of funds sufficient to satisfy

the judgment belonging to the State of

Nevada which are situated in the State of

California. Thus, unless this Court

grants this Petition for Certiorari

execution will be forthcoming and the

State of Nevada will be left without any

recourse.

When the State of Nevada enter-

ed the Union she agreed to be bound by

all laws and judicial decisions thereof.

Inherent in this agreement was the under-

standing that the United States Supreme

Court, and not the courts of Sister

States, was the final arbiter of deci-

sions which directly affected the States

oS

of the Union insofar as such State's

relationship with Sister States were

concerned.

Nevada now petitions this

Ceourt for Ceriorari which if not grant-

ed will leave the State of Nevada with

no recourse; with no ability to fight a

further legal battle in her own courts;

and will place her in an uncertain sit-

uation with respect to interaction with

her Sister States in the furtherance of

the performance of governmental func-

tions. This Court should grant the

Petition for Certiorari and thereby

fulfill its obligation not only to the

State of Nevada but to all the States

of the Union.

Dated: Merch 13, 1978

Respectfully submitted,

ROBERT LIST

Attorney General

of Nevada

JAMES H. THOMPSON

Chief Deputy

Attorney General

MICHAEL W. DYER

Deputy Attorney

General

Counsel for Petitioners

-16-

APPENDIX

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIRST APPELLATE DISTRICT - DIVISION FOUR

JOHN MICHAEL HALL, Minor, by

and through his Guardian ad

Litem, JOHN C. HALL and

PATRICIA HALL, 1 Civil

40858

(Sup. Ct

vs. Nos.

43481

UNIVERSITY OF NEVADA and the 470584-8

)

)

)

)

Plaintiffs and es

)

STATE OF NEVADA,

)

Defendants and Appellants.

)

Defendants-appellants University of

Nevada and the State of Nevada appeal from

a judgment in the amount of $1,150,000

entered against them in an action brought

by respondents for damages for personal in-

juries. The injuries resulted from a col-

lision between a vehicle occupied by respon-

dents and one driven by Helmut Bohm. It is

conceded that, at the time of the accident,

Bohm was an employee of the university, a

governmental arm of Nevada, and was engaged

in official university business. The fact

of his agency was not disputed at trial.

The accident occurred in California.

Prior to the trial of the case, appel-

lants moved to quash service of summons on

the ground that, under the doctrine of

sovereign immunity, Nevada was not subject

to suit in California. That motion was

granted. Respondents appealed from the

order and in Hall v. University of Nevada

(1972) 8 Cal.3d 522, the California Supreme

Court reversed, unanimously holding that

appellants were not immune from suit in

California for the driving of their agent

within the scope of his employment or for

the permissive use of their car within this

state. (Id., at p. 526.) Nevada's petition

for writ of certiorari to the United States

Supreme Court was denied. (414 U.S. 820.)

The Hall decision notwithstanding,

immediately prior to the trial of this case,

appellants moved for an order limiting

damages to $25,000 per person pursuant to

Nevada Revised Statutes section 41.035.

That statute, hereafter referred to as NRS

41.035, is part of the legislation by which

Nevada has waived its immunity from suit.

The waiver, as pertinent herein, is found

in the following statutes:

Nevada Revised Statutes section 41.031

provides that "The State of Nevada hereby

waives its immunity from liability and ac-

tion and hereby consents to have its

liability determined in accordance with the

same rules of law as are applied to civil

action against individuals and corporations.

NRS 41.035 states in relevant part:

"No award for damages in an action sounding

in tort —— under NRS 41.031 may exceed

the sum of $25,000 . .. to or for the

benefit of any claimant."' The combined

ii

thrust of these statutes is that Nevada has

chosen to waive its sovereign immunity, but

to —s such waiver to $25,000 per claim-

ant. ee State v. Silva (1971) 86 Nev.

911, 478 P.2d 501.).

Appellants’ motion to limit damages

was denied by the trial court. The cor-

rectness of this ruling is the sole issue

on appeal.

Nevada devotes much of its brief to

the re-argument of Hall v. University of

Nevada, supra, still contending that it

cannot be sued in any court without its

consent. Such an argument before this

court is futile. We are bound by the

Supreme Court's ruling that Nevada is not

immune from suit. (Auto Equity Sales, Inc.

v. Superior Court (1 al. : .

Appellants’ next contention is that, if

Nevada is held to be liable in California,

that liability must be subject to the

$25,000 limit imposed by NRS 41.035. That

argument is based on the assumption that

in Hall v. University of Nevada, supra, the

Supreme Court held that Nevada was subject

to suit in this state because it had waived

its sovereign immunity. It is argued, in

effect, that if California accepts the

waiver, it must accept the limitation.

This premise misconceives the point of

Hall. The Supreme Court did not hold that

Nevada had waived sovereign immunity or had

given its implied consent to be sued in

California. It held simply that Nevada's

sovereign protection does not extend beyond

iii

its borders: "We have concluded that sister

states who engage in activities within

California are subject to our laws with re-

spect to those activities and are subject

to suit in California courts with respect

to those activities. When the sister state

enters into activities in this state, it is

not exercising sovereign power over the

citizens of this state and is not entitled

to the benefits of the sovereign immunity

doctrine as to those activities unless this

state has conferred immunity by law or as

a matter of comity." (8 Cal.3d at p. 524)

The court reviewed developments in the law

of sovereign immunity in a foreign jurisdic-

tion and concluded that recent cases "reflect

that state sovereignty ends at the state

boundary." (Id., at p. 525.) After holding

that the state and University of Nevada were

not immune from suit in California, the court

noted that this conclusion "makes it un-

necessary to consider plaintiff's further

contention that the State of Nevada has

consented by statute to suit in California."

(Id., at p. 526.)

That the limitation imposed by NRS

41.035 is totally inapplicable to this case

is made clear by footnote 4 of Hall v.

University of Nevada, supra, stating:

"Plaintiffs urge that Nevada has abrogated

sovereign immunity by statute. The state

and the university claim that the waiver of

immunity was a limited one and that the

statutory provisions abrogating immunity

should be interpreted as permitting action

in the courts of Nevada only. Since we con-

clude that Nevada does not have immunity

from liability for its activities in

California, the extent to which Nevada has

iv

teen . ‘

waived immunity by statute and the extent,

if any, to which it can or has limited the

Statutory waiver is immaterial. Even if

we assume that Nevada limited its statu-

tory waiver of immunity to actions in its

courts, such limitation would not be appli-

cable to the instant case involving ac-

tivities in California because the sover-

eignty of one state does not extend into

the territory of another." (Hall, supra,

at p. 526, emphasis added.)

Nevada also attempts to argue that

application of NRS 41.035 to the present

case is required by the full faith and

credit clause of the United States Consti-

tution. The contention is without merit.

It is well settled that the purpose of the

full faith and credit clause was not to

give the statutes of one state extra-

territorial force in another. (5 Witkin,

Summa ry of Cal. Law (8th ed. 1974) Consti-

tutional Law, § 16, p. 3260.) The United

States Supreme Court has long since estab-

lished that a forum state may refuse to

apply a sister state's statutes where such

enforcement would be contrary to its own

public policy. (Bradford Elec. Co. v.

Clapper (1932) 286 U.S. 145, 160; Pacific

Ins. Co. v. Comm'n. (1939) 306 U.S. 493,

901-502.) Nevada must therefore rely on

its final argument, namely that California's

own conflict of law rules require applica-

tion of NRS 41.035 in the instant case.

The case of Bernhard v. Harrah's Club

(1976) 16 Cal.3d 313 (U.S. cert. den. 429

U.S. 859), presents both the latest defini-

tive statement of California's choice of law

rules regarding tort actions and a fact

situation extremely close to the one at

bench. In Bernhard, plaintiff, a

California resident, was struck on a high-

way in this state by an automobile driven

by another California resident who had

allegedly been furnished alcoholic bever-

ages in defendant's Nevada establishment

after becoming obviously intoxicated.

Plaintiff sought application of California

law imposing civil liability upon tavern

keepers who furnish liquor to obviously

intoxicated persons (Bus. & Prof. Code, §

25602; Vesely v. Sager (1971) 5 Cal.3d

153), while defendant demurred on the

ground that Nevada law, precluding such

liability, was applicable.

The Supreme Court, noting that it

faced a "true conflicts" case, applied the

"comparative impairment" test which seeks

to determine which state's policy would be

more impaired if the other state's law were

adopted. (Bernhard, supra, at p. 320.) The

court pointed out that California's policy

interest would be very significantly im-

paired if it could not extend its regulation

to defendant who, soliciting the patronage

of California residents, and knowing and

expecting those residents to use California's

public highways, could nevertheless, with

impunity, violate California's prohibition

against selling alcoholic beverages to in-

toxicated persons. (Id., at pp. 322-323.)

The court thus held "that California has an

important and abiding interest in applying

its rule of decision tc the case at bench,

that the policy of this state would be more

significantly impaired if such rule were

not applied and that the trial court erred

in not applying California law." (Id., at

p. 323.)

vi

In the instant case Nevada advances

as its policy, the fact that if its

liability were not limited, its residents

would suffer financially, due to the in-

creased cost of insurance for Nevada

vehicles being operated outside the state.

California's policy interest lies in pro-

viding full protection to those who are

injured on its highways through the neg-

ligence of both residents and nonresidents.

We consider the policy reasons for

applying California law herein to be even

stronger than those found in Bernhard.

In Bernhard, defendant's culpable conduct

occurred entirely within Nevada's own

borders, yet the Supreme Court found that

merely by soliciting customers from

California, knowing and expecting such

customers to use California's highways,

defendant had "put itself at the heart of

California's regulatory interest. ..."

16 Cal.3d at p. 322.) Here, the State of

Nevada's activities and respondents' re-

sulting injuries, took place within

California. By thus utilizing the public

highways within our state to conduct its

business, Nevada should fully expect to

be held accountable under California's

laws.

The imposition of unlimited liability

upon Nevada involves at most an increased

economic exposure which, at least for

businesses which actively solicit exten-

sive California patronage, is a foresee-

able and coverable business expense.

(See Bernhard, supra, 16 Cal.3d at p. 323.)

vii

Given the fact that Nevada has chosen

to engage in governmental and business

activity in this state, the necessary

acquisition of additional insurance

coverage to protect itself during such

activity is an entirely foreseeable and

reasonable expense.

For all the reasons heretofore

stated, we conclude that the refusal of

the trial court to apply NRS 41.035 was

proper.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

Emerson, J. *

WE CONCUR:

Rattigan, Acting P.J.

Christian, J.

1 Civil 40858

*Retired judge of the superior court sit-

ting under assignment by the Chairperson

of the Judicial Council.

viii

Trial Judge:

Trial Court:

Attorneys for

Appellants:

Attorneys for

Respondents:

1 Civil 40858

Honorable Spurgeon

Avakian, Judge

Superior Court, Alameda

County

ROBERT LIST,

Attorney General of the

State of Nevada

MICHAEL W. DYER,

Deputy Attorney General

SCOTT HEATON,

Deputy Attorney General

Supreme Court Building

Carson City, Nevada 89710

BRONSON, BRONSON &

McKINNON

565 California Street

San Francisco, California

94104

TUNNEY, CARLYLE, ROGERS &

VANASSE

By: Eric D. Carlyle

675 North First Street

Suite 512

San Jose, California 95112

BOSTWICK & ROWE

By: Everett P. Rowe

420 Community Bank Building

11l West St. John Street

San Jose, California 95113

Hall v. University of Nevada

ix

105 Cal.Rptr. 355

Diane HALL, a minor, etc., et al.,

Plaintiffs and Appellants,

Vv.

UNIVERSITY OF NEVADA et al.,

Defendants and Respondents.

S.F. 22942.

Supreme Court of California,

In Bank.

Dec. 21, 1972.

Rehearing Denied Jan. 24, 1973.

The Superior Court, City and County

of San Francisco, Robert W. Merrill, J.,

entered order quashing service of summons

and complaint, and plaintiffs appealed.

The Supreme Court, Peters, J., held that

university and sister state were not im-

mune from suit in California for driving

of their agent within scope of his employ-

ment or for permissive use of their auto-

mobile within California.

Order reversed.

Opinion, Cal.App., 102 Cal.Rptr. 67,

vacated.

1. States 191(1.7)

Sister states who engage in activities

within California are subject to California

Xx

laws with respect to those activities

and are subject to suit in California

courts with respect to those activities

and, when sister state enters into

activities in California, it is not

exercising sovereign powers over citizens

of California and is not entitled to

benefits of sovereign immunity doctrine

as to those activities unless California

has conferred immunity by law or as a

matter of comity.

2. Courts 12(2)

California and its residents and

taxpayers have a substantial interest in

providing a forum where a resident may

seek whatever redress is due him.

3. Courts 12(2)

California has an interest from

point of view of orderly administration

of the laws in assuming jurisdiction in

cases where most of the evidence is

within its borders and where a refusal

to take jurisdiction may result in

multiple litigation.

4. States 191(1.6,1.7)

University and sister state were

not immune from suit in California for

driving of their agent within scope of

his employment or or permissive use of

their automobile within California.

West's Ann. Vehicle Code, § 27450 et

seq.

xi

Bostwick & Rowe and Everett P.

Rowe, San Jose, for plaintiffs and

appellants.

Bronson, Bronson & McKinnon, Michael

H. Ahrens, Michael R. Sheehan and Paul

H. Cyril, San Francisco, for defendants

and respondents.

PETERS, Justice.

Plaintiffs appeal from an order

quashing service of summons and complaint

on the defendants, University of Nevada,

a corporation, and tiie State of Nevada.

Plaintiffs filed suit in the San

Francisco Superior Court to recover

damages for personal injuries alleging

that the injuries resulted from a colli-

son in California between their automobile

and a car owned by the University and

State of Nevada and operated by their

agent acting within the scope of his

agency.

Service on the university and the

state was made pursuant to section 17450

et seq. of the Vehicle Code which provide

a method for service on nonresidents who

have operated vehicles on the highways

of this state, whose agents have done

so, or who have consented to the use of

their motor vehicles on our highways.

With respect to accidents occurring in

the state due to such use, the sections

1. The special administrator of the deceas-

ed agent was also named as a defendant.

xii

=

provide for service on the Director of

Motor Vehicles and notice of service to

the nonresident by registered mail.

The university and the state moved to

quash service on the ground that Califor-

nia Courts do not have jurisdiction over

the State of Nevada and its gove -nmental

agencies. The motion was granted.

[1] We have concluded that sister

states who engage in activities within

California are subject to our laws with

respect to those activities and are sub-

ject to suit in California courts with

respect to those activities. When the

sister state enters into activities in

this state, it is not exercising sovereign

power over the citizens of this state and

is not entitled to the benefits of the

sovereign immunity doctrine as to those

activities unless this state has conferred

immunity by law or as a matter of comity.

This principle is illustrated by

Parden v. Terminal R.Co., 377 U.S. 184,

190 et seq., 84 S.Ct. 1207, 12 L.Ed.2d

233, involving the operation by a state of

a railroad in interstate commerce. The

court recognized the general rule that a

state is immune from suit in federal court

by its own citizens and citizens of another

state. The court, however, applied an

exception to the general rule and held

that because it engaged in interstate

commerce, the state was subject to the

Federal Employers’ Liability Act (45

U.S.C. §§ 51-50) and could be sued under

xiii

the act in the federal courts. The

court, quoting from Maurice v. State of

California, 43 Cal.App. : :

110 P.2d 706, held thai the state by

engaging in interstate commerce by rail

and thereby subjecting itself to the

federal legislation must be deemed to

have waived any right it may have had

arising out of the general rule that a

sovereign stgte Bay not be sued without

its consent.

See also California v.

Taylor, 353 U.S. 553, 568, // 5.Ct.

. L L.Ed.2d 1034; United States v.

California, 297 U.S. 175, 185, 56 S.Ct.

421, 80 L.Ed. 567.)

The principle has also been recog-

nized in state decisions relating to

other states. Thus, in People v. Streeper

(1957) 12 Ill. 2d 204, 145 Ed 625,

629-630, an injunction proceeding was

permitted with respect to property owned

by one state in another state, and in

State v. Holcomb (1911) 85 Kan. 178, 116

P.251, 254, taxation by one state of

property therein owned by another state

was permitted. Each proceeding was

brought in the state where the property

was owned. As pointed out in Streeper,

the "sovereignty of one State does not

extend into the territory of another so

as to create immunity from suit or

freedom from judicial interference."

(145 WN.E.2d at p. 629; see also Georgia

Ye

The dissenting justices in Parden

expressly agreed that Congress had the

power to condition a state's permit

to engage in interstate commerce upon

a waiver of sovereign immunity but dis-

puted whether Congress had intended to do

so.

X1lV

v. Chattanooga, 264 U.S. 472, 479, 44

§.Ct. 369, 68 L.Ed. 796; City of Cincinnati

v. Commonwealth (1942) 292 Ky. 597, 167

S.W.2d 709, 714; State v. City of Hudson

(1950) 231 Minn. 127, 42 WW 3d 546,

548-549; State ex rel. Anderson v. Cit

of Madison (Mo. 1969) 444 S.W.2d 4&3

445; Note, 81 A.L. R. 1518.) Although

these cases involve enforcement of

property duties rather than in personam

jurisdiction and a transitory action,

they reflect that state sovereignty ends

at the state boundary.

It is urged that as a matter of

comity sister states should be immune from

liability in California. In Paulus v.

State of South Dakota (1924) 5Z7 ND. 84,

201 N.W. 867, a citizen of South Dakota

was injured while working in a mine owned

by that state but located in North Dakota.

In holding that as a matter of comity the

North Dakota courts should not exercise

jurisdiction over its sister state, the

Supreme Court of North Dakota relied in

part on the fact that the plaintiff was

a citizen of South Dakota, and to this

extent the case is distinguishable

because the plaintiffs herein are Califor-

nia citizens. The court also relied upon

the potential embarrassment to the states.

Possible embarrassment may not be

held controlling when it is weighed against

the policies which warrant the exercise of

jurisdiction in the instant case. In up-

holding the validity of a nonresident motor-

ist statute such as the one under which

XV

respondents were served, the United

States Supreme Court has pointed out:

"Motor vehicles are dangerous machines;

and even when skillfully and carefully

operated, their use is attended by

serious dangers to persons and property.

In the public interest the state may

make and enforce regulations reasonably

calculated to promote care on the part

of all, residents and non residents

alike, who use its highways. The measure

in question operates to require a non

resident to answer for his conduct in

the state where arise causes of action

alleged against him, as well as to

provide for a claimant a convenient

method by which he may sue to enforce

his rights. ... [T]he state may declare

that the use of the highway by the non

resident is the equivalent of the appoint-

ment of the registrar as agent on whom

process may be served." (Hess v. Pawloski,

274 U.S. 352, 356-357, 47 S.Ct. 632,

633, 71 L.Ed. 1091.) The same view has

been adopted by the Supreme Court of

Nevada in upholding its nonresident

motorist statute. (Kroll v. Nevada

Industrial corporation ee 65 Nev.

[2,3] This court has repeatedly

emphasized that this state and its

residents and taxpayers have a substantial

interest in providing a forum where a

resident may seek whatever redress is

due him. Buckeye Boiler Co. v. Superior

Court, 71 Ca

Cal. Rptr. 113, 4518 P.2d 57; Fisher

Governor Co. v. Superior Court, 53

Cal.2d 222, 225, I Cal.Rptr. 1, 347 P.2d

xvi

1.) The state also has an interest from

the point of view of the orderly adminis-

tration of the laws in assuming jurisdic-

tion in cases where most of the evidence

is within its borders and where a refusal

to take jurisdiction may result in

multiple litigation. 3 (id.) The presence

of the evidence and witnesses in California

could, of course, mean that plaintiffs

if not permitted to proceed in California

could find themselves seriously hampered

in proving their case elsewhere.

To hold that the sister state may

not be sued in California could result

in granting greater immunity to the

sister state than the immunity which our

citizens have bestowed upon our state

government. If a sister state has not

abrogated sovereign immunity for tort,

it is conceivable that a California

citizen would be denied all recovery for

an automobile accident in this state

even though it the State of Calfiornia

had been the defendant recovery would

have been permitted.

Finally, it must be pointed out

that in a society such as ours, which

places such great value on the dignity

of the individual and views the government

as an instrument to secure individual

rights, the doctrine of sovereign immunity

3. Apparently, the instant case is pro-

ceeding to trail against the special

administrator of the estate of the

driver.

xvii

must be deemed suspect. (National Bank

v. Republic of China, 348 U.S. 356, 339-

361, 75 S.ct. 423, 99 L.Ed. 389; Muskopf

v. Corning Hospital Dist. 55 Cal.2d 211,

214-216, | Cal.Rptr. 89, 359 P.2d 457.)

[4] We conclude that the State and

University of Nevada are not immune from

suit in California for the driving of

their agent within the scope of his

employment or for the permissive use of

their car within this state. This

conclusion makes it unnecessary to

consider plaintiffs' further contention

that the State of Nevada has consented

by statute to suit in California.

The order appealed from is reversed.

WRIGHT, C. J., and McCOMB, TOBRINER,

MOSK, BURKE, and SULLIVAN, JJ., concur.

XVLil

ACTIONS: PERSONS

41.031 Waiver by state, its agencies and political subdivisions of

immunity from liability aad action; actions; State of Nevada as defend-

ant, service of process.

1. The State of Nevada hereby waives its immunity from liability and

action and hereby consents to have its liability determined in accordance

with the same rules of law as are applied to civil actions against natural

persons and corporations, except as otherwise provided in NRS 41.032

to 41.038, inclusive, and subsection 3 of this section, if the claimant

complies with the limitations of NRS 41.032 to 41.036, inclusive, or

the limitations of NRS 41.010. The State of Nevada further waives the

immunity from liability and action of all political subdivisions of the

state, and their liability shall be determined in the same manner, except

as otherwise provided in NRS 41.032 to 41.038, inclusive, and subscc-

tion 3 of this section, if the claimant complies with the limitations of

NRS 41.032 to 41.036, inclusive.

2. An action may be brought under this section, in a court of com-

petent jurisdiction of this state, against the State of Nevada, any agency

of the state, or any political subdivision of the state. In an action against

the state or any agency of the state, the State of Nevada shall be named

as defendant, and the summons and a copy of the complaint shall be

served upon the secretary of state.

3. The State of Nevada does not waive its immunity from suit con-

ferred by Amendment XI of the Constitution of the United States.

(Added to NRS by 1965, 1413; A 1975, 209, 421; 1977, 275)

41.032 Conditions and limitations on actions: Officers’, employees’

acts or omissions. No action may be brought under NRS 41.031 or

against an officer or employee of the state or any of its agencies or politi-

cal subdivisions which is:

1. Based upon an act or omission of an officer or employee, exercis-

ing due care, in the execution of a statute or regulation, whether or not

such statute or regulation is valid, if such statute or regulation has not

been declared invalid by a court of competent jurisdiction; or

2. Based upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty on the part of the state or

any of its agencies or political subdivisions or of any officer or employee

of any of these, whether or not the discretion involved is abused.

(Added to NRS by 1965, 1413; A 1967, 992; 1977, 1536)

(1977)

1484

x1x

ACTIONS: PERSONS

41.033 Conditions and limitations on actions: Failure to inspect, dis-

cover. No action may be brought under NRS 41.031 or against an

officer or euiployee of the state or any of its agencies or political subdivi-

sions which is based upon:

1. Failure to inspect any building, structure or vchicle, or to inspect

the construction of any street, public highway or other public work to

determine any hazards, deficiencies or other matters, whether or not there

is a duty to inspect;

2. Failure to discover such hazard, deficiency or other matter,

whether or not an inspection is made.

(Added to NRS by 1965, 1413; A 1967, 993; 1977, 1537)

41.0333 Conditions and limitations on actions: Acts, omissions of

members, employees of Nevada National Guard. No action may be

brought under NRS 41.031 or against the State of Nevada or the Nevada

National Guard or a member or employee of the Nevada National Guard

which action is based upon an act or omission of the member or employee

while engaged in state or federal training of the Nevada Nationa! Guard

or duty as prescribed by Title 32 of U.S.C., or regulations adopted pursu-

ant thereto, whether such training or duty is performed within or without

the boundaries of this state.

(Added to NRS by 1975, 209)

41.0335 Conditions and limitations on actions: Acts, omissions of

sheriffs’ deputies, police officers.

1. No action may be brought against:

(a) Any sheriff which is based solely upon any act or omission of a

deputy; or

(b) A chief of a police department which is based solely upon any

act or omission of an officer of such department.

2. Nothing contained in this section shall be construed:

(a) To limit the authority of the state or a political subdivision or a

public corporation of the state to bring an action on any bond or insur-

ance policy provided pursuant to law for or on behalf of any person who

may be aggrieved or wronged.

(b) To limit or abridge the jurisdiction of any court to render judgment

upon any such bond or insurance policy for the benefit of any person so

aggrieved or wronged.

(Added to NRS by 1969, 563)

41.0337 Conditions and limitations on actions: Tort actions against

present, former public officers, employees, legislators.

1. No tort action arising out of an act or omission within the scope

of his public duties or employment may be brought against any officer or

employee. or former officer or employee, of the state or of any political

subdivision or against any state legislator or former state legislator unless

the state or appropriate political subdivision is named a party defendant

under NRS 41.031.

(1977)

1485

ACTIONS: PERSONS

2. The attorney general or, in the case of a political subdivision, the

political subdivision shall provide for the defense, including the defense

of cross-claims and counterclaims, of any officer or employee or former

officer or employee of the state or political subdivision or against any

state legislator or former state legislator in any civil action brought

against such person in his official or irdividual capacity or both, if the

person, within 10 days after a complaint has been filed against him, sub-

mits a written request for such defense:

(a) In the case of an elected officer or an agency head who has no

administrative superior, to the attorney general or chief legal officer or

attorney of the political subdivision; or

(b) In the case of any other officer or employee, to both his agency

administrator and the attorney general or the chief legal officer or attor-

ney of the political subdivision,

and the case is certified for such defense. An agency administrator who

receives a written request pursuant to this section shall within 15 days

after such receipt notify the attorney general or, in the case of an agency

administrator of a political subdivision, the chief legal officer or the attor-

ney of the political subdivision, whether it appears that the act or omis-

sion of the person was in good faith and in the scope of the person’s

= duties or employment, and whether he certifies the case for defense.

n cases where the written request for defense must be submitted directly

to the attorney general or chief legal officer or the attorney of the political

subdivision, that officer shall determine within 15 days after receipt of the

request whether it appears that the act or omission was in good faith and

in the scope of the person’s public duties or employment, and whether he

certifies the case for defense. If the case is certified for defense, the attor-

ney general or the chief legal officer or attorney of the political subdivision

shall within 10 days determine whether his defense of the action would

create a conflict of interest between the state or political subdivision and

the person.

The initial written request extends the time to answer, move or otherwise

plead to the complaint to 45 days after the date of service.

3. The attorney general or the chief legal officer or attorney of the

political subdivision shall notify the present or former officer, employee

or legislator as promptly as possible of the decision with respect to the

defense of his case so that the person may if necessary procure his own

counsel and prepare his own defense. Until the decision is made the

attorney general or the chief legal officer or attorney of the political sub-

division shall appear in the action and move or plead on behalf of the

person. Refusal of the state or political subdivision to defend is not admis-

sible in evidence at trial or in any other proceeding.

4. The attorney general may employ special counsel whose compen-

sation shall be fixed by the attorney general, subject to the approval of

the state board of examiners, if he determines that it is impracticable,

uneconomical or could constitute a conflict of interest for the legal serv-

ice to be rendered by him or one of his deputies. Compensation for special

counsel shall be paid out of the reserve for statutory contingency fund.

(1977)

1486

ACTIONS: PERSONS

-

5. The chief legal officer or attorney of a political subdivision may

employ special counsel whose compensation shall be fixed by the govern-

ing body of the political subdivision if he determines that it is impracti-

cable or could constitute a conflict of interest for the legal services to be

rendered by him. Compensation for special counsel shall be paid by the

political subdivision.

6. If the attorney general or the chief legal officer or attorney of a

political subdivision does not provide for the defense of a present or

former officer or employee of the state, or political subdivision or of a

legislator and it is judicially determined that the injuries arose out of an

act or omission of that person during the performance of his duties and

within the scope of his employment, and that his act or omission was not

wanton or malicious:

(a) If the attorney general was responsible for providing the defense,

the state is liable to him for reasonable expenses in prosecuting his own

defense, including court costs and attorney’s fees. These expenses shall be

paid, upon approval by the state board of examiners, from the reserve for

statutory contingency fund; or

(b) If the chief legal officer or attorney of a political subdivision was

responsible for providing the defense, the political subdivision is liable to

him for reasonable expenses in prosecuting his own defense, including

court costs and attorney’s fees.

7. In every action or proceeding against an officer or em , or

former officer or employee of the state or any political subdivision or

against any legislator or former legislator that results in a final judgment

or other disposition, the court or jury shall return a special verdict in the

form of written findings which determine:

(a) Whether such officer, employee or legislator was acting within the

scope of his public duties or employment; and

(b) Whether the alleged act or omission by the officer, employee or

legislator was wanton or malicious.

8. The state or appropriate political subdivision may not require a

waiver of the attorney-client privilege as a condition of a defense pursu-

ant to this section.

9. The state or appropriate political subdivision shall indemnify

the officer, employee or legislator or former officer, employee or legislator

unless it establishes that he failed to cooperate in good faith in the defense

of the action or that his conduct was wanton or malicious, in which event

it is entitled to contribution from such person.

(Added to NRS by 1975, 896; A 1977, 481, 1537)

41.035 Limitation on award for damages in action in tort.

1. An award for damages in an action sounding in tort brought under

NRS 41.031 or against a present or former officer or employee of the

state or any political subdivision or any state legislator or former state

legislator arising out of an act or omission within the scope of his public

duties or employment may not exceed the sum of $35,000, exclusive of

interest computed from the date of judgment, to or for the benefit of any

(1977)

1487

ACTIONS: PERSONS

claimant. An award may not include any amount as exemplary or puni-

tive damages.

2. ‘The limitations of subsection 1 upon the amount and nature of

damages which may be awarded apply also to any action sounding in tort

and arising from any recreational activity or recreational use of land or

water which is brouglit against:

(a) Any public or quasi-municipal corporation organized under the

laws of this state.

(b) Any person with respect to any land or water leased or otherwise

made ava‘iable by that person to any public agency.

(c) Any Indian tribe, band or community whether or not a fee is

charged for such activity or use. The provisions of this paragraph shall

not impair or modify any immunity from liability or action existing on

February 26, 1968, or arising after February 26, 1968, in favor of any

Indian tribe, band or community.

The legislatre declares that the purpose of this subsection is to effectuate

the publi Lge of the State of Nevada by encouraging the recreational

usc of laad, lakes, reservoirs and other waters owned or controlled by

any public or quasi-municipal agency or corporation of this state, wher-

ever such land or water may be situated.

3. The limitations of subsection | upon the amount and nature of

damages which may be awarded apply also to any action sounding in

tort arising out of any act or omission within the scope of the public

duties or employment of any officer or employee, or eons officer or

employee, of the state or of any political subdivision, or against any state

legislator or former state legislator.

sy to NRS by 1965, 1414; A 1968, 44; 1973, 1532; 1977, 985,

41.036 Conditions, limitations on actions against state, counties,

cities, unincorporated towns, other political subdivisions.

1. No action shall be brought under NRS 41.031 against a county

without complying with the requirements of NRS 244.245 to 244.255,

inclusive, or against a city without complying with the requirements of

NRS 268.020, or against an unincorporated town without complying with

the provisions of NRS 269.085, or against the state or any agency or

other political subdivision of the state without complying with the require-

ments of subsection 2 or 3 of this section.

2. Every claim against the state arising out of contract shall be pre-

sented in accordance with the provisions of NRS 353.085 or 353.090,

and every claim for refund in accordance with the provisions of NRS

353.110 to 353.120, inclusive. Every other claim against the state or any

of its agencies shall be presented to the ex officio clerk of the state board

of examiners within 6 months from the time the cause of action accrues.

He shall within 10 days refer each such claim to the appropriate state

agency, office or officer for investigation and report of findings to the

board. No action may be brought unless the board refuses to approve or

fails within 90 days to act upon the claim.

(1977)

1488

xxiii

ACTIONS: PERSONS

3. Every claim against any other political subdivision of the state

shall be presented, within 6 months from the time the cause of action

accrues, to the governing body of that political subdivision. No action

may be brought unless the governing body refuses to approve or fails

within 90 days to act upon the claim.

(Added to NRS by 1965, 1414; A 1969, 1117)

41.037 Administrative settlement of claims, actions. (pon receiv-

ing the report of findings as provided in subsection 2 of NRS 41.036, the

state board of examiners may allow and approve any claim or settle any

action against the state, any of its agencies or any of its present or former

officers, employees or legislators arising under NRS 41.031 to the extent

of $25,000, plus interest computed from the date of judgment. Upon

approval of any claim by the state board of examiners, the state con-

troller shall draw his warrant for the payment thereof, and the state treas-

urer shall pay the same from the reserve for statutory contingency fund.

The governing body of any political subdivision whose authority to allow

and approve claims is not otherwise fixed by statute may allow and

approve any claim or settle any action against that subdivision or any of

its present or former officers or employees arising under NRS 41.031 to

the extent of $25,000, plus interest computed from the date of entry of

any judgment, and pay it from any funds appropriated or lawfully avail-

able for such purpose.

(Added to NRS by 1965, 1414; A 1973, 1532; 1977, 1539)

41.038 Insurance of state, local government, officers, employees

against liability.

1. The state and any local government may:

(a) Insure itself against any liability arising under NRS 41.031.

(b) Insure any of its officers or employees against tort liability resulting

from an act or omission in the scope of his employment.

(c) Insure against the expense of defending a claim aguinst itself

or any of its officers or employees whether or not liability exists on such

claim.

2. Any school district may insure any peace officer, requested to

attend any school function, against tort liability resulting from an act or

omission in the scope of his employment while attending such function.

3. As used in this section:

(a) “Insure” means to purchase a policy of insurance or establish a self-

insurance reserve or fund, or any combination thereof.

(b) “Local government” means every political subdivision and every

other governmental entity in this state.

(Added to NRS by 1965, 1414; A 1969, 272, 564; 1977, 388)

41.039 Filing of valid claim against political subdivision condition

precedent to commencement of action against employee, officer. An

action which is based on the conduct of any employee or appointed or

(1977)

1489

xxiv

ieee

ACTIONS: PERSONS

elected officer of a political subdivision of tie State cf Nevada while in

the course of his employment or in the performance of his official duties

may not be filed against such employee or officer unless, prior to the filing

of the complaint in such action, a valid claim has been filed, pursuant to

NRS 41.031 to 41.038, inclusive, against the political subdivision for

which such employee or officer was authorized to act.

(Added to NRS by 1968, 27)

(1977)

1490

CERTIFICATE OF SERVICE

I, JAMES H. THOMPSON, Chief

Deputy Attorney General, hereby certify

4,

that on the

I mailed by

day of March, 1978,

irst class mail, postage

prepaid, three copies to each of the

following:

Tunney, Carlyle, Rogers

and Vanasse

Attorneys at Law

675 North First Street

Suite 512

San Jose, Califernia 95112

Bostwick & Rowe

Attorneys at Law

420 Community Bank Bldg.

lll West St. John Street

San Jose, California 95113

S H. THOMPSON

hief Deputy Attornéy

General

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