Humana Insurance Company v. Dolores Mueller
04-14-00752-CV
Tex. App.Apr 28, 2015Background
- Fort Bend County Toll Road Authority (Authority), a local government corporation, contracted Brown & Gay to design roadway signage and traffic layouts for the Westpark Tollway; Brown & Gay carried insurance and had discretion over design details.
- An intoxicated driver entered the Tollway in the wrong direction and collided with Pedro Olivares Jr.; his parents sued the Authority and Brown & Gay alleging negligent design/installation of signs and traffic-control devices.
- The Authority successfully invoked governmental immunity on interlocutory appeal and was nonsuited; Olivareses proceeded only against Brown & Gay.
- Brown & Gay filed a plea to the jurisdiction claiming it was entitled to the Authority’s sovereign immunity; the trial court granted the plea, but the court of appeals reversed.
- The Texas Supreme Court considered whether sovereign (governmental) immunity extends to private contractors that perform government functions when they exercise independent discretion.
- The Court held that private contractors who exercise independent discretion are not entitled to the government’s sovereign immunity; Brown & Gay’s plea was improperly granted.
Issues
| Issue | Olivareses' Argument | Brown & Gay's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity extends to private contractors performing authorized governmental functions | Sovereign immunity should not extend; contractors remain liable for their own negligence | Contractors performing government functions should share the government’s immunity to avoid increased costs and encourage contracting | No; sovereign immunity does not extend to private contractors exercising independent discretion |
| Whether statutory provisions or absence thereof show legislative intent to extend or deny immunity to contractors | Absence of express extension for local gov’t corporations implies no immunity for contractors | Certain statutes that bar immunity for some contractors imply immunity extends otherwise | Irrelevant; sovereign immunity is common-law and the judiciary defines its boundaries; legislative silence does not create immunity |
| Whether derivative immunity applies when contractor follows government directions | Derivative immunity applies only when contractor acts as an instrument of government under government control | Brown & Gay argued it was authorized and the Authority would have been immune if it had acted itself | Derivative immunity limited to cases where contractor acts under government control or where the injury is attributable to government policy, not independent contractor discretion |
| Whether federal doctrines (qualified immunity/Filarsky) or official-immunity justifications support extending sovereign immunity | These doctrines do not apply to sovereign immunity waiver issues | Brown & Gay relied on Filarsky to argue parity with employees and avoid "unwarranted timidity" | Filarsky and qualified/official immunity are distinct and do not justify extending sovereign immunity to private contractors in this context |
Key Cases Cited
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (describing sovereign immunity origins and principles)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (judiciary defines immunity boundaries; legislature waives immunity)
- Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (sovereign immunity protects against disruptive litigation costs)
- Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (sovereign immunity preserves public fisc and separation of powers)
- K.D.F. v. Rex, 878 S.W.2d 589 (Tex. 1994) (private party entitled to immunity only when acting under government control)
- Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (U.S. 1940) (contractor immunity when harm stems from governmental policy, not contractor’s independent acts)
- Filarsky v. Delia, 132 S. Ct. 1657 (U.S. 2012) (qualified immunity for private persons performing government work does not equate to sovereign immunity)
- Butters v. Vance Int’l, Inc., 225 F.3d 462 (4th Cir. 2000) (derivative immunity only where contractor follows sovereign orders)
- Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009) (Yearsley framework: immunity when plaintiffs attack the governmental policy, not contractor negligence)
- Glade v. Dietert, 295 S.W.2d 642 (Tex. 1956) (public-works contractor liable for negligence in performance, not for governmental policy decisions)