Turnbull v. Fink

Sachs, agree. simply I That issue should be re- Rosemarie MYERS and Jean Below, Appellants, manded for trial. Plaintiffs majority, But with what seems to be an v. (whether intended) implicit purpose or not DELAWARE ADMINISTRATION FOR deny plaintiffs any meaning- or some of them TRANSIT, DART, REGIONAL and a/k/a relief, “standing” requirement ful and adds Cooper, Jr., Below, Franklin Defendants damages plus an “economic” measure of Appellees. rulings mitigation, and as to comments fees paid plaintiffs to Dr. Owens and whether justified declining “were free AIDS test- CO., The TRAVELERS INSURANCE Ver

ing.” Frey, Virgil Frey, nalee P. and d/b/a Claymont Supply, Hardware and Plain view, my advice as to these matters is Below, Appellants, tiffs record; inappropriate present on the issues concerning damages, trial evidence on v. instance, first should be decided the trial judge. DELAWARE ADMINISTRATION FOR TRANSIT, a Delaware cor

REGIONAL poration, Cooper, Jr., and Franklin De Below, Appellees. fendants Virgil FREY, Frey, wife, Vernalee his Frey, Inc., Mark O. and V.V.M. t/a Claymont Supply, Hardware v. TURNBULL,

Mark Ad Li Guardian DELAWARE ADMINISTRATION FOR Turnbull, minor, tem for Steven TRANSIT, DART, and REGIONAL a/k/a Below, Appellant, Plaintiff Jr., Below, Cooper, Franklin Defendants Appellees. No. FINK, Kenneth Administrator Es Turnbull, Kenneth tate of Patricia Supreme of Delaware. DeShields, Authority and Delaware Regional Transit, Below, Defendants 21, 1996. Submitted: June Appellees. 26, 1995.

Decided: Oct. SHENTON, Plaintiff Lorraine J.

Below, Appellant, Farm Mutual Automobile Company, Defendant

Insurance

Below, Appellant,

DELAWARE ADMINISTRATION FOR TRANSIT, DART,

REGIONAL a/k/a Below, Cooper, Jr., Franklin Defendants

Appellees. (argued),

Eric M. Doroshow Martin J. Sie- Scott, gel Pasquale, and Doroshow & Julia Wilmington, appellant for Mark Turnbull as Turnbull. Guardian Ad Litem of Steven Tomasetti, (argued), Raymond E. Jr. New- port, appellant, for Lorraine J. Shenton. Marlin, Jeffrey Biggs Battaglia, & S. Wil- mington, appellants Frey Mark for O. Inc., Claymont Sup- Hardware & V.V.M. Va Frey Virgil Frey ply, and Vernalee d/b/a Claymont Hardware. Moore, Jr., Roeberg,

William X. Moore & Assoc., Wilmington, appellants for Rosemarie Myers and Sachs. Jean Mary Balaguer (argued), D. E. John Williams, Sherlock, Wilmington for White & DeShields, appellees Cooper and DART. Marvel, English, Wayne & A. McCarter curiae, Wilmington, for amicus Defense Counsel Delaware. Wetzel, P.A., Davis, Bailey &

Steven T. Wilmington, appellant Travelers Insur- for ance Co. P.A., Jacobs, Crumplar,

Robert Jacobs & Tri- Wilmington, amicus curiae Delaware Lawyers al Ass’n. deBernard,

Carolyn Law Offices of H. Dover, State Young, appellant Robert Farm Insurance Co. Delaware, Hanley, De-

James J. State Justice, Wilmington, for partment of Delaware, Transportation. Department of VEASEY, C.J., WALSH, Before BERGER, HOLLAND, HARTNETT, and JJ., constituting the en Banc. Court HARTNETT, Justice, majority. for the Counsel of Delaware to file amicus curiae support appellants’ position. briefs Interlocutory Appeal. an This is holding Superior agree with the of the We Plaintiffs-Appellants challenge pre-trial rul- interlocutory Accordingly, the rul- Court. ings Superior of the Court as to the extent to ings Superior affirmed. Court are immuni- State waived its ty by purchase of commercial I. covering involving insurance accidents two Superior in the Five actions were filed operated by buses the Delaware Administra- seeking damages arising out of two (“DART”). Regional tion for Transit DART, involving operated by accidents buses presented Superior issue to the Court was agency. a The suits were consolidated State proceedings: which statute controls 2 these Superior in the Court. At the time of the 1329, by § Del.C. enacted 66 Del.Laws C. accidents, primary liability DART had insur- (“1989 Act”), § 360 Bond or 18 Del.C. coverage ance with Reliance Insurance Com- 2, § Title Del.C. 1329 waives the State’s sov- pany per in the amount of million occur- $1 DART, ereign immunity, up as to to a maxi- $609,113 paid rence for it had which as the $300,000 occurrence, mum of for each if addition, premium. annual DART had an in place DART has the commercial insurance Indemnity policy umbrella with General Star coverage purchased by authorized to be million, Company in the amount of $5 18, § 1989 Bond Act. Title 6511 paid premium it had an annual which $160,000. sovereign immunity generally, up waives DART also carried excess cover- age insurance and Forster in the with Crumb the limit coverage, of insurance if there is in million, purchased amount of with an an- $5 place the pur- insurance authorized to be $40,000.1 premium nual chased under that Section. § The issue is en- whether Del.C. that, Superior The Court held as between Act, by acted 68 of the Bond Section § § 18 Del.C. 6511 and 2 Del.C. Sec- sovereign which waives the of the tion specific 1329 was the more and later $300,000 up to a maximum of for each and, therefore, enacted statute occurrence, applicable if there is commercial Consequently, control. Superior Court coverage, § insurance or 18 Del.C. § determined that Del.C. 1329 limits the sovereign immunity which waives without limit, sovereign immunity, State’s waiver of applicable as to if insurance cover- there age, controls in this DART, instance. involving accidents to the lesser of applicable coverage, the amount of insurance $300,000. Superior held, The Court alter- II.

natively, applicable that because the insur- Sovereign immunity part has been a of the coverage purchased part ance was as throughout law of Delaware the State’s histo Coverage Program the State Insurance cre- ry. question This Court first considered the by § ated the waiver of sov- sovereign immunity applied to a lawsuit ereign immunity provided by 18 Del.C. brought against the State in the case of apply. 6511 could not Hill, Inc. v. Shellhorn & 55 Del. case, In that Justice Superior granted Plain- sovereign immunity is not Wolcott noted tiffs’-Appellants’ Motion for Certification of doctrine, rather, judicially a created but was Interlocutory Appeal accepted an and we it part England common law of at the 42(b). pursuant Supreme Court Rule We time of the American Revolution. The Shell- granted then the motions of the Delaware long hom court took note of the tradition of Lawyers immunity enjoyed by English Trial mon sovereign Association and Defense legality by purchase imposed 1. The before wisdom or of the of in- limit 13 Del.C. 1329 is not $300,000 per surance in excess of the occurrence us. archs and held that because immu IV.

nity unquestionably part English was governed by DART is the Delaware prior by Act, Del.C., common retained law Transportation Authority Constitution, Chapter 13.3 Title Del.C. enacted Article 25 of the 1776 Act, by 68 of the Bond address Section provided England the common law of es the issue of as to service until al would remain force Delaware provided by Transportation the Delaware by newly tered formed Delaware General states, Authority (“Authority”). perti It Assembly. part: nent Any operation, program pro- service I, Constitution, in Article Transportation vided the Delaware directly sovereign immunity, pro- addressed Authority general ... not covered viding may brought against that “suits liability policy, self-insurance or other in- state, according regulations to such as shall legally policy surance as shall be estab- language, present be made law.” That Authority lished and funded said shall alteration in all Delaware without successive protected by be covered and the doctrine Constitutions, reinforced the constitutional sovereign immunity of the State which immunity sovereign basis for the doctrine of applicable only Au- shall be not to the Delaware, however, subject, by in to waiver thority agencies, but to each of its admin- Assembly. at the General Id. istrations, subsidiaries and each of their respective employees ... officers therefore, Sovereign immunity, is an abso provid- event that insurance has been liability against claims this lute bar to State ed, claim, any including such award for by Assembly. unless it is waived damages against or costs assessed Williamson, Wilmington Housing Authority v. administrations, Authority, subsidiar- .Supr., ies, Del employees or officers either individu-

ally employer or on behalf of shall their not exceed the amount said insurance III. covering the amount the risk or loss or $300,000 be whichever amount shall DART, parties agree All the that as a state any arising lesser for and all claims out agency, protected by is the doctrine of sover- added). single (emphasis of a occurrence eign immunity unless a waiver has occurred. language general This states the rule Similarly, they sovereign immuni- assert that DART, agency operated by Au- as a State ty, partially, at least has been waived as to thority, against by protected is tort claims subject the accidents that are the of this sovereign the doctrine of unless action, they but differ as to the extent of the Only has waived it. Appellants waiver.2 and amici assert exception general to rule of im- limited this sovereign immunity the doctrine of has been exception munity provided, and that has waived, liability up insur- to the amount of requirements: liability two there must be ($5 million), coverage pursuant ance to 18 any recovery against DART insurance and parties $300,000 § Del.C. 6511. The other contend the limit of for a cannot exceed single occurrence. by § that Del.C. enacted Section Act, sovereign of the 1989 Bond which waives nevertheless, Appellants, assert that 18 occurrence, $300,000 immunity only up per to § It Del.C. 6511 controls instead. was enact- Del.C., part Chapter in applies. ed 1970 as of 18 operations 'public' in DART to cover the 2. There has been no claim that the insurance able any liability greater agreed carriers to assume expenses, capital operating both related to than the of the State. public transportation provided by services DART 1403(5) empowers § 3. 2 Del.C. the Delaware Transportation Authority “[t]o use funds avail- pub protecting both the State and the ance]

“Insurance the Protection State.” contemplated.” Superior lic Court 18 Del.C. 6511 states: was Raughley in determined that because the sovereignty The defense of is waived and Coverage Program State Insurance was cannot and will not be asserted as existence, in the waiver by covered the state insurance risk loss Similarly, Pipkin was not effective. coverage program, whether same be cov- Department Highways Transportation, & commercially procured ered insurance (1974), Superior Del.Super., 316 A.2d 236 self-insurance, every commer- concluded, basis, on a more limited cially procured insurance contract shall coverage there could that without insurance effect, provision contain a to this where nobe waiver. added). (emphasis appropriate pro- Title Del.C. intended to considered the 1976 this Court first injured meaning vide method which those of 18 6511 and the State agencies compensated Coverage Program Pajewski or its would State Insurance while, time, protecting at same Perry, Del.Supr., State We Treasury. Accordingly, that Chapter statute allows determined that Title created against claims if insurance has comprehensive program “a insurance purchased pursuant been “state insur- implementing provisions.” administrative Id. (“State coverage program” ance Insurance Chapter at also noted that 65 man 435. We Coverage Program”). that a Committee be formed to deter dated (Section 6502), spec coverage mine insurance

Y. (Section 6503), coverage ified the forms of authorized the Insurance Commissioner Court, decision, Superior in its noted promulgate regulations rules and necessary although the defense of immu (Section carry policy to out determinations nity § is waivable under 18 Del.C. that 6504), and formed a State Insurance Cover provides section for a waiver as to risks (Section 6505). age also found Office We by Coverage covered the State Insurance chapter that the are manda Program, program a that has never existed. tory, because the word “shall” is used § It also held that 2 Del.C. later was, therefore, every significant section. It statute, specific supersed enacted and more Del.C., Chapter was therefore, concluded that 18 It, § correctly ed 18 Del.C. enabling legislation and was $300,000 more mere coverage in per limited this case to Court, therefore, program. This occurrence, viable provided by as is 2 Del.C. escape that could not Fink, al., determined State § Del.Super., 1329. Turnbull v. et (Feb. liability merely by arguing that 90C-10-135, Section Alford, C.A. No. J. 1994) (Memorandum by appropria is inanimate “until vitalized Opinion), slip op. at Instead, it that sov tion.” Id. at 436. held 1994 WL 89641. Delaware courts have on waived, ereign presumptively applicability several occasions considered the “upon the and that the burden would be alleged § 18 Del.C. where has been provide to all of the facts as to how the State sovereign immunity that the doctrine of has responsibilities under 18 Committee met purchase been waived because of the of liabil Del.C., [including] ... Chapter 65 whether by ity insurance It has been State. provide self-insurance is or was feasible to consistently concluded that Insur the State coverage for such risk and the reason for no Coverage Program by 18 Del. ance mandated coverage.” Id. C., Chapter has never existed. Cates, 1985, however, Raughley Department Health & in Doe v. Del. Services, (1985), Del.Super., Supr., we determined

Social 704, (1971), presumptive Superior held that 18 that the had overcome the State sovereign immunity provided in 18 merely enabling [legisla § “is waiver of Del.C. tion], mandatory § that conclusion notwithstanding its di Del.C. 6511. We reached transpired fully that had That court determined that “a because of the events rection.” during years Pajewski. since We developed integrated program insur the nine [of by mitigation held that the Committee formed 18 Del.C. such other traffic measures as good § 6511 had made numerous faith at- in- shall be determined to be the best tempts funding to from secure the General terest of the State. The funds authorized Assembly comprehensive to formulate a in- by may capital this section be used for coverage plan, costs, surance but to no avail. Id. at operating costs of insurance or “it 1177-78. We noted that was never said bonding reasonably other costs responsible that the Committee was for en- provide expanded related to transit suring coverage actually exists. It was operations Any described herein. impossible for the to create cov- Committee authorized herein and used in- funds erage funding.” without Id. at 1177. We purposes may surance be utilized as de- found, law, therefore as a matter of that the Transportation termined the Delaware sovereign immunity State had not waived its Authority purchase general liability provided because the State had never for the policy par- or such other insurance or to Coverage Program Insurance as man- State ticipate in the State’s self insurance fund § dated 18 Del.C. 6511. necessary provide to the extent for the potential exposure as shall be de- In Sandt v. Delaware Solid Author- Waste termined the Delaware Insurance De- (1994), ity, Del.Supr., 640 A.2d 1030 we re- pursuant termination Committee Sec- cently considered the issue of waiver of sov- 6501, Chapter tion 65 of the Delaware ereign immunity toas the Delaware Solid added). (emphasis Code (‘Waste Authority Authority”). Waste We express- held had Appellants’ argument 18 Del.C. ly Authority’s sovereign immu- waived Waste 6511 controls of 2 Del.C. instead 6406(a)(5) nity by enacting 7 Del.C. fails for several reasons. gives Authority power Waste to “[s]ue Cates, A.2d at As held Doe v. and be sued.” We were therefore not called provides the waiver of upon argument to rule on Sandt’s alternative sovereign immunity only as to risks losses Authority’s purchase that Waste of insurance Coverage covered Insurance sovereign immunity waived its under 18 Program. disputed It is not that the insur- § 6511. purchased to be ance at issue was authorized pursuant §to Bond Act. Sec- of the 1989 VI. Act, terms, by tion Bond its 67 1989 $300,000 Notwithstanding the maximum of in- provide procurement does not for the sovereign im- limitation as to the waiver of through Insurance Cover- surance the State munity § appellants in 2 Del.C. claim § age Program created 18 Del.C. 6511. insurance, purchase that DART’s of with the emphasized pro- 67 As the text of Section million, coverage maximum of constituted $5 vides, Authority per- is the Delaware Transit sovereign immunity, up a waiver of to that utiliz- purchase mitted to insurance without limit, § pursuant to 18 Del.C. 6511. It is not Program. ing Coverage Insurance disputed pur- that the insurance at issue was light of the nonex- This is what was done. pursuant chased to Section 67 of the 1989 Coverage Pro- istence of the State Insurance Bond Act. purchase gram arrange that could for the Section 67 of the 1989 Bond Act states: insurance, Assembly obviously operations: Tran- Transit The Delaware acquire DART to realized the need for Authority hereby sit is authorized to ex- question, own insurance. The loss there- pand existing operations transit and the fore, by the non-existent cannot be covered Fifty sum of Hundred Thousand Seven Coverage Program provided State Insurance ($750,000) hereby appropriated Dollars is Cates, § 18 Del.C. 6511. Doe v. 499 purpose. operations for that transit Said at A.2d may expanded consist of rail or bus ser- sovereign previously, shall As vice or such other services which discussed transit, immunity firmly in both the com promote to commuter to re- rooted serve A provide congestion lieve road to mon law and the Delaware Constitution. and/or 1377 (1963). Co., 126, 191 A.2d 322 Lang must be a clear F. 56 Del. waiver $300,000 § specific Assembly. imposes act a of the General Title Del.C. sovereign immunity Raughley Department v. limit on the waiver of as Health & Social Services, Del.Super., specific It act and it to DART. is the more Consequently Section 67 of the 1989 Bond Act is not a clear is the later enacted. it must specific sovereign immunity. prevail § waiver of over 18 Del.C. We, therefore, reject Appellants’ argument Appellants’ interpretation of the com that the waived DART’s bined effect of Section 68 of the 1989 Bond sovereign immunity any limi- without dollar Act, § 2 which enacted Del.C. 1329 and 18 purchase to of DART’s tation the extent § Del.C. 6511 is also inconsistent and irrec liability coverage.4 oncilable with the text of the 1989 Bond Act. 67 and 68 of the Act Sections 1989 Bond VII. harmonized, together must be read if reconciled, they If possible. cannot be § Appellants argue also that 2 1329 Del.C. specific provision prevail more must over the and, unconstitutionally enacted even if State, general. Del.Supr., Hamilton 285 enacted, validly deprives of their consti- them (1971); A.2d 809 State ex rel. Price v. equal protection process tutional and due Land, Del.Supr., 0.0673 Acres rights right jury and their constitutional to 598, 602 When Sections 67 and 68 of trial and access to the courts. together, they the 1989 Bond Act are read as incorrectly Appellants assert that sover- be, must it is clear that the General Assem eign immunity upon DART was conferred bly, regardless statute, other intended merely § 1329. That statute reaf- Del.C. sovereign immunity of the State sovereign immunity already firmed as it ex- apply would not as to if DART DART isted under the Delaware Constitution. If and, so, had obtained insurance if the waiver hold, Appellants request, were to we $300,000 would be limited to for each occur nullity, Section 1329 is a the constitutional rence, regardless of how much insurance was principle sovereign immunity deny would purchased by DART. not, recovery Appellants. all do We how- ever, § find 2 unconstitu- Del.C. Lastly, interpretation given tional. Appellants Del.C. is irreconcil able possible, with Del.C. 1329. Where 1. The Enactment attempt court poten will to harmonize two Court, tially conflicting dealing Appellants statutes with the raise for this reconciled, subject. they same If cannot be the first time a claim that 68 of the Section however, Act, specific prevail statute must 1989 Bond which enacted general. Specifically, over the Hamilton is unconstitutional.5 II, 809; they A.2d at 2B assert that the Act violated Article CON SutheRLAND StatutoRY 1992). (5th Likewise, § 51.04 16 of Delaware Constitution be ed. Section STRUCTION, irreconcilable, subject if it more than one and the two acts are the later cause contained subject sovereign immu prevail enacted statute must over the earlier. that the “waiver of Highway Dept. George nity” not forth in the title to the bill.6 State ex rel. State set State, (66 Appellants' upon Kennerly Act C. reliance 6.The title to the 1989 Bond Del.Laws (1990) Del.Supr., misplaced 360) be 580 A.2d 561 is states: a bond capital improvements act of and applicability cause the of Del.C. 6511 was 18 THE OF DELAWARE AND CERTAIN OF ITS AUTHORITIES STATE Kennedy not at issue in that case. Nor did the THE ISSUANCE OF GENERAL OBLIGATION BONDS AUTHORIZING attempt Kennerly with Doe v. reconcile AND REVENUE BONDS OF THE DELAWARE TRANS- OF THE STATE Cates, (1985). Del.Supr., 499 A.2d at 1175 AUTHORITY; APPROPRIATING FUNDS FROM THE PORTATION AND THE TRANSPORTATION Supr.Ct.R. FIRST STATE IMPROVEMENT FUND 8 was not followed because this issue was first raised in this Court. We neverthe- FUND; FEES TO THE TRANSPORTA- TRUST PLEDGING DOCUMENT argument less consider the in the interests of WITH MOTOR FUEL TAXES AND TION TRUST FUND TOGETHER justice judicial economy. and Sandt v. Delaware FEES; MAKING CERTAIN ADDI- MOTOR CARRIER REGISTRATION 2, 1030, Authority, Del.Supr., 640 A.2d Solid Waste TITLE CHAPTER TIONAL AMENDMENTS TO AND READOPTING 14; 13 OB- AND CHAPTER TRANSFERRING CERTAIN GENERAL II appropriates The text Article 16 of the Delaware ware General which precludes Appellant’s argument. money public purposes Constitution for is free of the resolution, joint except subject. It states: “No bill or restraint it be limited to one money out, appropriating public pur points bills for (cid:127)As Professor Ruud in 1958 18 poses, subject, adopted shall embrace more than one states had constitutional expressed specifically dealing which shall be in its title.” Dela the limitation of con- consistently making appropriations ware courts have followed the tents of bills —both “plain meaning general appropriations appro- rule” for construction of stat and other bills priation utes or the Delaware Constitution. One for Id. at 414-417. The bills. Constitu- stating (including mulation used this Court in tions seven those 18 states “plain meaning Pennsylvania) expressly excepted only gener- rule” is: “In the absence any ambiguity, language subject appropriation of the statute al bills from the one regarded must be as only conclusive the Gener restriction. Id. at 414-417. There are states, Delaware, Assembly’s judicial al including intent. The role is four application subject” then limited to an provision of the literal “one limitation in the meaning Cooper, exempted of the words.” State v. to all State’s Constitution is (1990) 1074, Del.Supr., (citing appropriation A.2d bills. Id. at 416. Of these State, 477, Del.Supr., only Evans v. 516 A.2d 478 four states the Delaware Constitution (1986); Barge Corp. provides any appropriating money Coastal v. Coastal Zone bill Bd., 1242, Del.Supr., public purposes excepted Indus. Control 492 A.2d from the one- (1985)). subject Adoption requirements. See also In re Id. at 416. title Swanson, (1993); Del.Supr., 623 A.2d 1095 clearly appro- The 1989 Bond Act is a bill of Educ., Del.Supr., v. Bd. Moses 602 A.2d 61 priating money public purposes, and its (1991).7 consistently It has been followed provision relating to the waiver of the construction of the Delaware Constitu immunity in Section 68 relates the insur- Kleinman, Del.Supr., tion. Barron v. purchased in ance authorized to be the Act. (1988); A.2d Marker v. Del. The 1989 Bond Act is to the Annual similar (1982); Supr., Opinion of Budget Act and differs as to the number Justices, Del.Supr., appropriations its source of funds. separate As noted Millard H. Ruud in his article The 1989 Bond Act makes over 130 appropriations money appropriated No Law Shall Embrace More than One Sub- and the (1959), ject, 42 including Minn.L.Rev. 414-452 has several sources bonds, Fund, general obligation text of the Delaware Constitution is revenue more bonds, permissive repeal other state constitution funds made available from the provides prior yet expended, appropriations because that a bill of the Dela- SYSTEM, LIGATION BOND AUTHORIZATIONS TO THE TRANSPORTATION AMENDING TITLE AUTHORIZATIONS AND ACCOUNTING CHARTER 14 OF THE DELAWARE CODE FUND; TRUST TRANSFERRING CERTAIN DELAWARE TRANSPORTA- RELATING TO THE TION AUTHORITY BOND AUTHORIZATIONS TO THE TRANSPORTA- AU- POWERS AND DUTIES OF THE DELAWARE TRANSPORTATION 62 OF 66 AND FUND; TION TRUST DEAUTHORIZING CERTAIN GENERAL OBLI- THORITY; AMENDING VOLUMES THE LAWS GATION BONDS OF THE STATE AND CERTAIN BONDS OF THE OF DELAWARE AND RELATING TO NATIONAL GUARD PROJECTS DELAWARE AND CERTAIN TRANSPORTATION AUTHORITY AUTHOR- STABILIZATION; SHORELINE TITLE CHAPTER AMENDING BONDS; ITY FOR GUARANTEED INDUSTRIAL REVENUE REVERT- 74 OF THE DELAWARE CODE REGARDING PAYMENT OF DEBT ING AND REPROGRAMMING CERTAIN SURPLUS FUNDS OF THE SERVICE AND CHAPTER 83 REGARDING NOTIFICATION OF BOND STATE AND REPROGRAMMING CERTAIN FUNDS OF THE DELA- TITLE 30 OF THE DELA- ISSUANCES; AMENDING CHAPTER WARE TRANSPORTATION AUTHORITY CREATING CERTAIN FUNDS AID; WARE CODE REGARDING MUNICIPAL AMENDING STREET STATE, OF THE APPROPRIATING CERTAIN GENERAL AND SPECIAL TITLE 29 OF THE DELAWARE CODE RELATING TO CHAPTER FUNDS OF THE STATE AND THE DELAWARE TRANSPORTATION 30, CHAPTER 30 OF PROCEDURES; THE BID AMENDING TITLE AUTHORITY; AUTHORIZING THE DEPARTMENT OF ADMINISTRA- DELAWARE CODE RELATING TO THE DELAWARE TRANSPORTA- TIVE TO WELL SERVICES ALLOCATE STRIPPER FUNDS TO CER- TION AUTHORITY. TAIN ELIGIBLE CAPITAL IMPROVEMENTS AUTHORIZED IN THIS 50, TITLE 29 OF THE DELAWARE ACT; CHAPTER AMENDING Although some commentators have criticized CODE RELATING TO THE CREATION OF A DEVELOPMENT INCEN- rule, TITLE 29 OF THE DELAWARE CODE BY plain meaning a the use of the the text of FUND; TIVE AMENDING ADDING A NEW 34 RELATING TO THE ESTABLISHMENT OF A always primary statute or Constitution is Martelli, meaning. essential source of the v. SPACES; Alfieri COMMISSION ON NATURAL AREAS AND OPEN AMEND- 29, CHAPTER 65 OF 52, 54, (1994). Supr., n. 1 647 A.2d CODE, THE Del. ING TITLE DELAWARE REGARD- ING THE DEPARTMENT OF TRANSPORTATION CAPITAL PROGRAM

1379 justifi- the lack of rational appropriating proving special certain funds. As a bill burden cation. money public purposes, the 1989 Bond clearly exception in Arti-

Act falls within the however, cases, where the II, § No cle 16 Delaware Constitution. infringes upon a “fundamental state action provision in other the Delaware Constitution classification,” “suspect right” or creates a requires one-subject or a a limitation re- scrutiny” test will rigorous more “strict quirement appropriating for a title for a bill Blumstein, v. 405 U.S. applied. be Dunn is, money public purposes. There there- Cf. (1972) 995, 330, 31 L.Ed.2d 274 92 S.Ct. fore, requirement no in the Delaware Consti- residency (invalidating require durational limited to tution that the 1989 Bond Act be Virginia, voting); Loving v. 388 ments for subject expressed in title. one is See (1967) 1817, 1, 18 L.Ed.2d 1010 U.S. 87 S.Ct. Justices, 19, Opinion Del. 194 A.2d 57 marriages). (invalidating on interracial ban of the Delaware 855 The framers governmental A action survives strict scruti undoubtedly recognized, in Constitution even ny only where the state demonstrates 1897, limiting appropria- in an the difficulties narrowly tailored to advance a the test subject setting tion bill to one or forth its compelling government interest. a title. they Appellants do not assert have Between the levels of “rational ba prejudiced by any been mislead or deficien- scrutiny” sis” and “strict lies the “intermedi contrary, cies in the 1989 Bond Act. To the test, standard of review intended ate basis” a they are benefitted the enactment of Sec- primarily involving for cases classifications 2 tion 68 that enacted Del.C. 1329 because See, e.g., upon illegitimacy. based gender it waives the constitutional of sover- doctrine Orr, 268, 1102, 59 v. 440 U.S. 99 S.Ct. Orr $300,000 eign immunity, up per occur- (1979) (invalidating 306 state statute L.Ed.2d rence, place if DART has the insurance husbands, wives, may providing that not be coverage purchased by authorized to be divorce); alimony required pay upon Lalli 68, Appellants Act. Without Section would Lalli, 518, 439 U.S. 99 S.Ct. 58 not have the benefit of this waiver. (1978) (involving illegitimacy). L.Ed.2d 503 governmental For classifications to survive Equal protection they im scrutiny, must “serve intermediate Appellants governmental objectives argue portant [must also that 2 unconstitutionally substantially related to achievement of be] 1329 discriminates be Orr, injured objectives.” at persons tween those 440 U.S. based on whether Orr against at 316. greater their claims DART are 99 S.Ct. at 59 L.Ed.2d $300,000. less against those who

Discrimination case, equal protection injury generally does have suffered economic See, threshold issue is the of review to standard implicate suspect classification. government ques applied to the action Marine, e.g., A.2d also Ronald 1185. See Usually, enjoys “governmental tion. action Nowak, on Law D. Treatise Constitutional presumption constitutionality and statuto (1992). Accordingly, this Court has 8.3 ry classifications be set aside if no will analyze applied the rational basis test grounds justify can be conceived to them”. legislation that creates economic classifica Robinson, Del.Super., State v. tions. Cheswold Vol. Fire Co. v. Lambertson (1980), quoting Board McDonald v. Co., Del.Supr., A.2d Const. 802, 809, Comm’rs, (1985) Election U.S. S.Ct. legislation (holding that economic 1404, 1408, (1969); 22 L.Ed.2d see relationship legiti to a must bear a rational State, Del.Supr., 607 A.2d also Marine v. purpose). mate state —den., (1992), 1206-1207 cert. U.S. -, Title 2 DeLCode 1329 creates no 120 L.Ed.2d 952 S.Ct. test, among plaintiffs upon clas relationship” the distinction based Under this “rational inherently suspect, such person objecting to the state action bears the sifications are 1380 race, color, religion, ancestry.8 § or is deprives 1329 unconstitutional because it statute, therefore,

application of this plaintiffs right adjudication does not by of their a deprive Appellants right, of a fundamental jury. right

such as the to vote. Nor does this case The 1792 Delaware Constitution upon gender involve classifications based or provided by jury Instead, “trial shall be as here illegitimacy. § 1329 cre- language appeared tofore.” This has un nothing ates more than a economic distinc- changed in four successive among potential plaintiffs. tion Delaware Consti tutions it and was left unaltered when Article Appellants suggest that this Court should I, present § 4 of the Delaware Constitution adopt minority by very the rule embraced was amended in 1984. “This Court and the jurisdictions, few courts in other which have always other courts of Delaware have con applied augmented scrutiny standards provision strued that in the Delaware Consti determining constitutionality when of lia ‘guaranteeing right tution as to trial bility limitation Appellants statutes. cite ” jury as it existed at common law.’ Clau Usitalo, Brannigan v. 134 N.H. 587 A.2d State, Del.Supr., dio v. 585 A.2d 1297 (1991) Trujillo City Albuquer 1232 v. (1991) (quoting Del.Supr., Fountain v. que, 110 N.M. 798 P.2d 571 (1971)). 275 A.2d 251 At common law and Although cognizant we remain Constitution, under the Delaware lawsuits receiving interests of tort victims redress against always the state have been barred injuries, unwilling their we are to follow sovereign immunity, the doctrine of unless minority heightened rule that utilizes a Assembly. waived The en scrutiny reviewing standard statutes 1329, therefore, repre actment of Del.C. among that create socioeconomic distinctions rule, sents a modification of the common law plaintiffs. It is the rule this state that by allowing against through DART lawsuits suspect alleged depri absent classification or sovereign immunity. a limited waiver of right, vations of a fundamental socioeconomic deprive petitioners Section 1329 does not legislation need bear rational relation trial, rather, existing right jury of their to a ship legitimate purpose. to a state Cheswold right By enacting creates a new to sue. Co., Fire v. Vol. Co. Lambertson Const. Del.C. exer Therefore, at A.2d 418. we must follow the create, power cised its and at the same rational basis test. time, limit the new cause of action. Mur Cf. test, Appellants Under the rational basis Edmonds, phy v. 325 Md. showing bear the burden of that there is no (1992) (holding statutory damage cap that a justification conceivable for the classification equal protection does violate the clause They created Del.C. failed to trial) right jury Etheridge to a justifications meet that burden. Numerous Hospitals, 237 Medical Center Va. limiting recovery potential exist for (1989) (holding S.E.2d 525 that a statute plaintiffs against in tort actions the state. limiting malpractice recovery medical does Among protect them is the need to the state process, equal protection, not violate due treasury, premiums maintain insurance at a trial). Therefore, jury right to a we level, manageable promote stability in reject argument Appellants are be Edmonds, Murphy the insurance market. ing right jury denied their constitutional to a 325 Md. trial. Therefore, Appellants’ equal protection argu- ment is without merit. 4. Due Process Right jury trial Lawyers Trial amicus Delaware curiae, argues

Amicus the Delaware Trial Association further that the limitation Association, Lawyers argues that Del.C. in 2 contained curiae, Lawyers 8. Amicus the Delaware Trial As- tion “is due to the extent of waiver of sociation, Chapter concedes in its brief that the fact that under Title 18 65 and not plaintiffs may compensa- arbitrary some not recover full because of an classification.” quo quid pro DART. The negligent due action of plaintiffs’ unconstitutional as it violates law and rights and access to the courts as break with the common process for the guaranteed the Delaware Constitution. doctrine sover- Delaware Constitutional liability §I of the Delaware Constitution Article was the limitation of eign Second, part: states of action. under the new cause func- liability public limitation of serves open; every man All courts shall be and recovery to torts making possible a as injury reputation, tion of for an done him in his DART, agency, while involving one person, possessions, movable or immovable State treasury and maintain- remedy by protecting the due course of the State shall have law, justice according liability premiums to at an afford- ing and administered insurance right law of very of the cause and the level. able sale, land, denial, or unreason- without delay expense; ... able VIII. amicus, effect, argues that The Section reasons, pre-trial foregoing For the deny compen- might impermissibly full Superior that 2 rulings of the Del.C. plaintiffs. suggests It also sation to some § enacted Section 68 of the 1989 liability limitation in that Section Act, and that it applies Bond to this lawsuit class, DART, department a “one creates $300,000 recovery per occur- any limits liability the other which can limit its below proceeding are AFFIRMED and this rence departments agencies.” and State action. is REMANDED for further jurisdic- Amicus cites decisions from other types legislative tions that have held some HOLLAND, Justice, dissenting, with recovery a limitations on tort to be denial of BERGER, J., joins: whom process. due The issues in the cases cited judgments Superi- interlocutory The it, however, distinguishable from the is- are 2 Del.C. determined that or Court which sue here because those cases all deal § applies § torts, rather than 18 Del.C. regulating recovery private statutes recovery limits proceedings these and than torts the state. rather committed $300,000 be re- per occurrence should perceive The failure to this distinction is § is unconstitutional. versed because summary apparent in amicus’ to its own § 6511 operative statutes are 18 Del.C. argument: 1309(20). The General As- and Del.C. permu- The number of ramifications and funding sembly’s statutory authorization argument tations of this revolve around policies, commercial insurance of the one, right mitigated; a common law can be in this applicable to the claims which are two, mitigated, person where it is should case, constituted acts that waived the State’s remedy remedy equal be afforded an if the immunity up to the combined $11 three, that if is no deprived; there policies. Del. million limits of those See act, purpose for this the limitation Const, 9; 6511; I, § art. suspect. must be 1309(20); Kennerly Del.Supr., 580 abroga- The instant case does not involve the A.2d 561 right.” As we have tion of a “common law above, recovery in noted there could be no of Section 1329 Enactment against tort the State at common law. Delaware Constitution Violates Furthermore, reject argument we amicus’ 2 Del.G. creating appellants contend that “public no function” for that there is Constitu- permit- § 1329 is violative of the Delaware infringed class” that is not “a small alia, tion, it was enacted damages inter because recover to the extent ted to Capital First, argu- of the 1989 Bond coverage. this Section 68 insurance State’s Act”). (“1989 Bond Improvements Act purely conclusory. 2 Del.C. ment is Del.Laws, support of that Chapter 360. In infringed class.” not create “a small does contention, the title appellants assert that Rather, recovery per- for all some allows gave no indication injured by of the 1989 Bond Act prove they sons who can were purpose passed was to alter the doctrine of sover- with the concurrence three of eign immunity improper and that it was to all the members elected to each fourths of legislation appropri- include substantive in an House. dispositive ation bill. The merit in this chal- Const, added). VIII, § (emphasis Del. art. lenge § to 2 Del.C. 1329is contained in three Historical Context separate provisions part became Single-Subject The and Title Rules simultaneously Delaware Constitution in general II, provisions The two in Article Constitution, § 16 of the Delaware that a bill provision The first in the Delaware Consti- only subject contain one and that the title of II, § provides: tution is Article which express subject, the bill its are distinct re- resolution, joint No except ap- bill or bills quirements. Ruud, Millard See H. “No Law propriating money public purposes, Subject,” Shall Embrace More Than One Vol. subject, shall embrace more than one XLII, Minn.L.Rev. Each expressed which shall in be its title. origins. has different historical Id. Never- Const, II, added). § Del. (emphasis art. theless, requirements these two are often provision general “single- This sets forth the single provision, combined in a such as Arti- subject” rules, specifically title but ex II, Constitution, cle 16 of the Delaware to cepts bills, purview appropriation from its purpose. achieve a common Id. Before ex- which, nature, by their cover more than a bills, amining exception appropriation ie., subject, single designation of funds important history it is to understand the multiple recipients. to See Delaware Consti purpose general requirements. of the two 2, p. tutional Debates Vol. potential problem caused an omni- provision The second in the Delaware Con- bill, provisions bus which includes unrelated analysis stitution that is relevant to this matters, heterogeneous on is an uninformed III, provides, Article part, which in legislative recognized vote. This was that: B.C., Romans. the Lex Caecilia Didia power disap- Governor shall have to prohibit adoption was enacted to of laws prove any item or items bill of provisions which contained unrelated —the making appropriations money, embrac- Luce, Legislative lex satura. See Proce- items, ing part parts distinct and the dures 548-549 The omnibus bill con- law, approved the bill shall be the and the tinued to be a cause for concern colonial appropriation item or disapproved items of prior Revolutionary America to the War. Id. void, repassed shall be according unless to Consequently, nearly ev- the constitution prescribed the rules and limitations for the ery requirement general state now contains a bills, passage of other over the Executive subject. legislation single be limited to a veto. Ruud, Than “No Law Shall Embrace More Const, added). Ill, § Del. (emphasis art. Subject,” One at 390. provision This authorizes a line-item veto general requirement The other in Article Governor, power only appro- for the but as to II, subject that the matter of a bill be priation bills. title, expressed originated in its with the applicable provi- The final constitutional Georgia Constitution of 1798. Id. VIII, provides: sion is Article Act, Georgia legislature passed the Yazoo appropriation public money No grants private persons which made to, shall be made the bonds nor this were not reflected in the statute’s title. Ruud, any county, State be issued or loaned to “No Law Shall Embrace More Than municipality corporation, Subject,” nor shall Georgia the One at 390. The Constitu- State, by guarantee credit of the or the tion was amended 1798. Id. The consti- every endorsement of the bonds or other under- requires tution of almost state now takings any county, municipality adequately express or cor- that the a bill title of poration, pledged pursu- subject provisions otherwise than Id. These are matter. Assembly, ant an legislative Act also intended to insure informed relate action, appropriation in an bill on the Delaware sions as the debates appropriations. Id. reflect: Constitution bills have been introduced Oftentimes no appropriation bills must contain While titles, very Legislature harmless appropria other substantive amendments have been added to those but matters, that an this does not mean tions they passed bills and when have both merely be a list of appropriation bill must Houses, they entirely from are different monetary respective re appropriations they originally. what were Gregg, 161 cipients. See Commonwealth 1897, Delaware Constitutional Debates Vol. (1894). Rather, 582, appropria Pa. 29 A. 297 1, p. 264. language may contain substantive tion bills foregoing the historical Consistent with specific appropriations which relates to the background, recognized has this Court language appropriation in the bill. Such II, general requirements of Article the two may to “conditional” or “inciden be found be Constitu 16 were included the Delaware and, therefore, prop appropriation tal” to an “prevent deception tion of in order to of 1897 erly appropriation in an bill. See included general public members of the the and the Justices, Del.Supr., 306 A.2d Opinion the Assembly by give General titles to bills which (1973).9 indicate that lan Factors which subject adequate information the mat no merely guage appropriation in an bill is not Justices, Opinion the ter the bills.” “incidental,” is “conditional” or but rather (1968). 855, Del. The sin first, provi the improperly substantive are: II, gle-subject and title in Article germane appropriation to sion is § 16 are intended to assure sufficient notice bill; second, provision appropriation the the “legislation, the content which was law; already existing repeals an amends attention, inadequately brought public to the third, in na provision permanent is sleeper legislation” slip or so-called does not ture, appro extending beyond the life of the through Assembly. Id. If a bill Ruud, priation act.10 See “No Law Shall subjects multiple contains or the title of the Subject,” Than Vol. Embrace More One unwary “trap bill is such that it would (1958); XLII, 423-429 Minn.L.Rev. inaction,” it into must be struck down as a Firestone, Fla.Supr., Brown v. 382 So.2d of this section of Con violation the Delaware (1980). Justices, Opinion stitution. In re the of (1962). 366, 177 54 Del. A.2d appropriation If an act contains substan- tive, legislation, it then non-financial becomes Single-Subject and Title Rules single- precisely kind of omnibus bill the Appropriation Exception Bills as Limited subject prohib- and title rules were meant Ruud, “No Law Embrace it.11 See Shall Nevertheless, appropriation bills have tra- XLII, Subject,” Than Vol. Minn. More One ditionally conditionally exempted from been appropri- Accordingly, an L.Rev. 389 requirements, single- general both of the improper place for an enact- ation act is an subject provisions, in con- and the title state appropria- ment of matters unrelated stitutions. Id. view of the historical fear Otherwise, purpose behind tions.12 Id. legislation, to the con- of omnibus which led single-subject and title rules would be against proscriptions stitutional bills with titles, meaningless, they could be circumvent- since subjects nondescript how- multiple change ever, simply putting a substantive exceptions appropriation bills ed primarily devoted legislation into otherwise always condition for ex- are narrow. The Consequently, those usually provi- appropriations. Id. emption a limitation that the See, Attorney Pennsylvania e.g., Attorney Pennsylvania Opin- General See also 78-16, 78-16, at *7-9 at *6. Opinion ion No. 1978 Pa. AG LEXIS 1978 Pa. AG LEXIS No. cases). (discussing Lewis, Dept. Fla. Education v. 12. See also Attorney Pennsylvania Opinion 10. See General of Supr., 416 So.2d 78-16, Pa. AG LEXIS at *9-20. No. courts adopted. During which have considered the issue all the debates on the 1897 Constitution, conclude: Delaware Edward G. Bradford proposed appropriation bills be excluded general ap- While under the Constitution provision pro- from the constitutional propriation exempted bills are from the general provision vided that no bill should embrace more constitutional which re- (the quires subject expressed single- that all bills contain one in its must but one title rules): subject, clearly subject expressed which must be and title title, general does not follow that Chairman, Mr. I would move that section amended, may modified, laws be or re- eighteen adopted reconsidered. pealed by general appropriation act un- making may explain that motion I the rea- general der such a title. why son I make it? I find that in the See, Cutler, e.g., 99, v. 34 Utah 95 P. states, Constitutions of the other and also 1071, 1072 reason, according to Iwhat consider sound ought exception there to be an in that analysis In Ruud’s authoritative of the one- general appropriation section of For bills. rule, subject he reaches that same conclusion instance, bill, except general appropri- “No rhetorically regarding exemption the in Arti- bills, ation shall embrace more one II, § cle 16 of the Delaware Constitution: subject, expressed which shall in be its Delaware, making what seems the broad- title, joint but a bill or resolution in viola- exception, excepts appropriating est “bills provision tion of this shall not invalidat- be money public purposes.” for A textual thereby, only ed as to so much thereof as interpretation could lead to the conclusion expressed.” general shall not be so A any appropriating money, act whether appropriation great variety bill contains a act, general special a or appropriations items, impossible which it would to of any subjects. could contain of number me, fully any set in It title. seems to question raised, forth though, would be that, therefore, following example the in containing appro- whether acts more than states, very except other to would be well priations provisions and related- remain general appropriation that section from appropriating money public pur- “bills bills. poses.” Doesn’t exception impose the only limitation on appropri- the bill that it 1897, Delaware Constitutional Debates Vol. money? Remarkably, ate no Delaware 2, added). p. (emphasis dealing question case with this was found. During proposal, the discussion on this the Ruud, “No Law Shall Embrace More Than Pennsylvania Constitution was cited one of Subject,” at One origins persuasive authority its and as for its Ruud, foregoing conclusion adoption. that the De- See Delaware Constitutional 1897, exemption one-subject 1894, pp. from the and title re- bates Vol. 2641-43. quirements in the years prior Delaware Constitution for three constitu- to the Delaware appropriation debates, legislation provisions bills limits such tional two similar the appropriations, compelled by Constitution,13 Pennsylvania along an examina- history provision tion of the and context in which Arti- giving governor the line-item veto II, § power cle 16 of the appropriations,14 interpret- Delaware Constitution was over were Const, Const, Ill, 3, 11; Constitutions, §§ adopted 13. Pa. art. Pa. art. into all the new and the IV, Attorney Pennsylva- 16. See also absence of it in the Constitution is a Federal of * 78-16, that, Opinion greatly perhaps, nia No. 1978 Pa. AG LEXIS fact to be lamented. But (1978) (purpose provisions prevent subject of is “to the is a little aside the amend- from this practice passing legislation by log-rolling or ment which I want to discuss. rider.”). 1, p. Delaware Constitutional Debates Vol. Decker, Perry Del.Supr., 233. See also v. 14. The drafters of the 1897 Delaware Constitu- A.2d 360-61 The debates on the emphasized importance tion of the Gover- III, provision that became Article 18 of the power appropriation nor's line-item-veto over primarily Delaware on the Constitution focused bills: necessary number of votes to override the Gover- 225-243, 247-262, regard power sepa- pp. Provisions in to his to veto nor’s veto. Id. at Vol. bills, appropriation rate items over have been 264-284. latter, power, line-item veto but as to Pennsylvania Supreme Court to ed i.e., the bill may approve veto prevent the Governor purpose, the same have Decker, Perry 457 A.2d at entirety. appropria- passage of extraneous matters Justices, 361-62; 210 A.2d at Opinion Gregg, 161 Pa. tion bills. Commonwealth on the 1897 Delaware (1894).15 854-55. The debates A. 297 With the benefit make this clear: Constitution Pennsylvania Supreme interpre- Court’s provisions regard- power disap- tation of its constitutional shall have The Governor bill, bills; any single-subject ing: appropriation prove item or items veto, rule; money, making appropriations line-item the drafters of embrac- and the items, parts ing part and the the Delaware Constitution understood distinct law, approved, and the single- the bill shall be excluding appropriation bills from the disapproved appropriation subject item or items of rule meant such bills would repassed according to ap- shall be void unless contain other than substantive for the prescribed and limitations the rules propriations matters.16 over the Executive passage of other bills Line-Item, Veto veto. Exception Limited Consistent Debates Vol. Delaware Constitutional added). Accordingly, this exemption appropriation p. (emphasis The narrow II, interpreted line- bills in Article 16 is similar to the Court has Governor’s III, gubernatorial power, forth in Article limited authorization for the item veto as set Constitution, III, § to extend line-item veto in Article In con 18 of the Delaware containing struing provision, “only the latter this Court has to a bill more one ‘embracing recognized appropriation between bills and distinct the distinction ” items,’ ap only purpose the of and not to “bills which contain which have fundamental money public among propriating purposes, single appropriation” for and item of other Decker, fundamentally Perry provisions. bills which are substantive in substantive nature, appropria but also include an A.2d at 360. relating tion to the issues. substantive See Appropriation Exceptions Limited Decker, 357,

Perry Del.Supr., 457 A.2d III, II, § Article 16 and Article (1983); Justices, Opinion the 360-61 of (1965). II, 475, 852, Arti- provisions The Article 16 and Del. 210 A.2d 853-54 As Constitution, bill, III, § of the Delaware type the former of the Governor has cle bills, nature, usually Pennsylvania propriation Supreme from their 15. The Court of discussed items, relating purpose provisions: not all strict- the of such constitutional cover a number of ly subject. They excepted to one were therefore only provision invoked here is section 15 2, requirement section and this the from of general appropriation article bill of 3: “The special exception the section 15 re- necessitated nothing appropriations shall embrace but for lating object both is the same. to them. The of executive, ordinary expenses legisla- the the of 297, Gregg, Pa.Supr., 29 A. Commonwealth v. judicial departments tive and of the common- added). (1894) (emphasis 297-98 history purpose wealth.” etc. The of that section are well known. It was aimed at the repeatedly Pennsylvania Constitution was 16. The objectionable practice putting a measure of of a model the drafters of the 1897 referred to as merits, strength, own into the on its doubtful Constitution, regard especially Delaware bill, general appropriations legislative —in governor's provisions veto such as the line-item rider," phrase, "tacking it on as a order to —in single-subject power title rules: and the it, bring compel members to vote the for great neighbor, Pennsylvania, here stop. The same In our government to a wheels of nearby Constitution was framed in section 16 whose constitutional intent is embodied 4, composed many ablest giving governor power of of the the to dis- Convention of article Commonwealth, many appropriations approve separate men of that items of bills. lawyers in that Con- and statesmen were ablest forcing passage practice thus It is the of year I matters, sat for about a vention which germane purpose to the extraneous not think, in the Constitution and which resulted itself, that was intended to be abol- bill Pennsylvania, and general legislation, in force in which is now ished. As to same ob- me, provisions are others, which I have before ject, among provision was secured bill, substantially the same. except "no section 2 article 3 that p. bills, Vol. passed, Debates general appropriation con- Delaware Constitutional shall be also, id., pp. ap- 2641-43. 234. See Vol. subject.” taining more than one when viewed in historical context and read in bill in the 1897 per- Delaware Constitution materia, para appropria- reflect that to be an funding mitted continued op- other State provisions erations, tion legislation bill the in the agree- must even in the absence of an appropriations. Perry all relate to See v. ment between the Governor and the General Decker, Del.Supr., Assembly 467 A.2d 360-62 propriety on funding certain (1983). purpose exempting appropri- projects. Daniel A. Philip See Farber and P. single-subject ation from Frickey, bills Jurisprudence title “The of Public II, Choice,” rules of appro- Article 16 was to allow 65 Tex.L.Rev. priation designate money bills to for more 1989 Bond Act purpose running

than one without afoul of Appropriations An Bill the constitutional that a mandate bill em- subject expressed brace the one in its question The central thus becomes: was title. See Delaware Constitutional Debates appropriation the 1989 Bond Act an bill? In 1897; 817-820, 2475-76; pp. 4, pp. Vol. Vol. context, a similar this Court has answered 2641-43, exception appropria- 2871. The question affirmatively. such a An au “[a]ct II, § tion bills in Article 16 was not intended thorizing the State of Delaware to borrow to allow substantive other than money by issuing appropriating bonds and money appropriations ap- to be included in moneys agencies so borrowed to various propriation bills. appropriation Opin the State” is an bill. Justices, Del.Supr., ion Similarly, authority the constitutional for a III, § line-item veto Article 18 was limited appropriation only, legislation bills Act, The 1989 Bond in addition to autho subjects that related to substantive and also bonds, rizing the issuance of certain also was appropriations. Perry included See v. Deck- denominated as “a er, 457 A.2d at 360-61. This Court has ex- supplemental appropriation of and in addi plained: appropriated by tion to the monies the Fis Budget cal Year 1989 legislative process Act.” 66 Del.Laws c. for the enactment Thus, Act, § 5.

of law established our the 1989 Bond Constitution con- templates formulating passed included Section was proposed the of under the laws authority VIII, of Article Assembly, the Houses of the of the Dela ware proposed Accordingly, and the Constitution. it was an submission of law to appropriation Opinion bill. See approval disap- the Governor for his the Jus of tices, 721; effect, proval. 306 A.2d at c. the Governor and the Del.Laws of Houses are a Section 68 of1989 Bond Act team,

legislative separate but each has Appropriation Exception Violates distinct functions in the of enactment laws. It is function of the the Senate and House II, § Although Article 16 of the Delaware agree to the form and upon substance of a specifically appropria- Constitution excludes law, and, generally speaking, it is the func- purview, tion bills from its of Section 68 tion of upon the Governor to act as a check Act Bond does riot fall within that exclu- doing the final enactment of that law. In sion. The Constitutional Debates of 1897 so, approve disapprove he must it aas purpose excluding appro- reflect that the of power whole for he has no constitutional to priation bills from this section was to allow proposed alter the content of a submit- law legislature appropriations to make him, except appropriations ted to as to of many purposes different at once. Delaware money. 2, pp. Constitutional Debates Vol. 817- Justices, 820; Opinion 2475-76, pp. 58 Del. Vol. 2641^3 and 2871. of (1965) added). (emphasis There was Those debates also reflect the drafters of II, power no at all in the permit veto 1831 Delaware Article 16 did not intend to passage “sleeper” legislation by including Constitution. Delaware Constitutional De- 1, p. excep- non-monetary bates Vol. 233. The limited substantive in an enactments appropriation appropriation tion for a line-item veto in' an bill. Id. Act, ment,' testimony in record through deposition of the 1989 Bond as

Section 68 enacted, 1829 was is the refleets: which DelC.

type legislation that intended to be was try get right MR. MOORE: To II, prevented by § 16 of the Dela- Article this, why DART had you tell me can 68 of the 1989 ware Constitution. Section essentially 11 million dollars’ worth Act 2 of the Delaware Bond amends Title liability coverage is a statu- when there sovereign to waive the immuni- $300,000? Code State’s tory cap limiting liability to ty operations for DART that are covered cap wasn’t tested MR. HILLIS: The impose a liabili- commercial insurance and through And conversations with court. $300,000. ty cap is a This substantive General, Attorney felt Deputy was nature, permanent enactment of a which is oppor- want to have the that we did not completely improper a bill otherwise de- tunity and have it not to test case money public “appropriating voted to consequently, putting the upheld, and Const, II, § purposes.” Del. art. 16. There jeopardy. DART in assets of is also no indication the title the 1989 Thus, §of DART since the enactment any change Act to made in Bond purchase pri- million in has continued to $11 relating the substantive law im- mary and excess commercial insur- munity. Consequently, as a substantive coverage. ance change sovereign immunity, to the law bill, part appropriation which was of an Sec- History Delaware II, § tion 68 violated Article 16 of the Dela- Sovereiyn Immunity ware Constitution. remaining question to be answered is has otherwise waived sov whether Section 68 Unconstitutional notwithstanding ereign immunity, the invalid Severability 1989Bond Act Saves Sovereign im attempted waiver in concluding What are the ramifications of munity part has been a of the law of Dela Act is Section 68 of the 1989 Bond history. This throughout the State’s ware unconstitutional? The other sections question first considered the of sover 1989 Bond Act are unaffected because of the eign immunity, applied to a lawsuit severability provision in Section 73: brought against in the case section, Severability. any If Section 73. Hill, State, 66 Del. & Inc. v. Shellhorn part, phrase, provision or of this Act or the (1962). Shellhorn, In this Court 187 A.2d 71 application by any thereof be held invalid sovereign immuni long the tradition of noted jurisdiction, competent judg- court of such ty enjoyed by English monarehs. Id. at 73- operation in ment shall be confined immunity sovereign 74. concluded that We section, part, phrase, provision, ap- or the English part unquestionably plication directly in controver- involved the prior to the American Revolu common law sy judgment in which such shall have been that Accordingly, this Court held tion. Id. impair and shall not affect or the rendered by Article sovereign immunity was retained validity of this Act or the of the remainder Constitution, provided 25 of the 1776 application thereof. England re law of would that the common by in until altered main in force Delaware Therefore, although Section 68 is unconstitu- Assem newly formed Delaware General the tional, remaining the it does not invalidate bly. Id. Act. provisions of the 1989 Bond See 360, § e. 73. Del.Laws directly 1792 Delaware Constitution I, immunity in sovereign Article unconstitu- addressed The conclusion that 1329 is brought may be providing that “suits surprise no to the State. tional will come as state, according regula- $300,000 to such damage cap against in the statutory Sec- That lan- by made law.” as shall be 1989 Bond Act became effective tions tion 68 of the without alteration guage Never- has been retained July 1988. Del.C. on theless, Delaware Constitutions about all successive has been concerned State for the doctrine to be the basis constitutionality §of 1329 since its enact- continues immunity Chapter in Delaware. Id. Sov- 65: mandated that a be Committee therefore, ereign immunity, coverage formed to is an absolute determine insurance (Section 6502); specified against bar to claims the forms of cover- the State of (Section 6503); age Delaware unless it is authorized the Insurance waived Anderson, promulgate regu- Assembly. Commissioner to rules and Del.Supr., Blair v. (1974). necessary carry policy lations out A.2d determi- King See also (Section 6504); nations and formed a State Del. (Section 6505). Coverage Insurance Office Despite the venerable historical back Id. We also found that Delaware, ground sovereign immunity chapter mandatory, are because the word this Court has noted that “neither the cer every significant “shall” is used in section. tainty longevity of the doctrine ... nor its Id. necessarily application right makes its or concluded, Pajewski, This Court that 18 just.” Pajewski Perry, Del.Supr., enabling ch. 65 was more than mere fact, A.2d In Delaware’s Court, therefore, legislation. Id. This held history applied reflects that its courts have escape liability that the State could not mere- sovereign immunity the doctrine of “with ex ly by arguing that Section 6511 is inanimate press reluctance and with an invitation to the by appropriation.” “until it is vitalized Id. at remove it.” Id. Hill, example, Shellhorn & after acknowl flatly 6511 states that

edging that Section the de- the Delaware Constitution “is no sovereignty fense of “is waived” and binding less on the “will courts on other and, therefore, not be asserted.” There is a limitation to government” branch of this waiver, is, “any it extends to risk Court could not refuse to enforce the doc sovereign immunity loss covered the state insurance cov- trine of when it was asserted, erage program.” To determine what risk this Court then stated: program, or loss is covered we look suggest Assembly] We to it [the General §to 6502 which directs the Committee to eminently proper for its consideration any type insure of risk to which the State desirability permitting, at least to may exposed. may pro- be be Such risk extent, against some suits the State for by commercially acquired tected insurance injuries caused the torts of State em- but, through program a self-insurance ployees. By general the enactment of a is, (cid:127)point protected. must be other permitting against law suit under State words, it, statutory plan, as we read pub- such conditions and circumstances as contemplates waiver eo-ex- desirable, policy lic rights make the basic program, which tensive with the insurance and interests of both the State and “any type shall cover of risk to which the protected. individual citizen would be may exposed.” Hill, 187 at Shellhorn & A.2d 74-75. One of Statute, In the view we take here of the Assembly’s responses the General to this State is not entitled to dismissal entreaty in Court’s Shellhorn & Hill was complaint merely by showing, it has embodied an act entitled “Insurance for done, that there is neither commercial nor the Protection of the State.” 18 Del.C. ch. covering liability for self-insurance alleged in kind of tortious conduct Sovereign Immunity complaint. Immunity presumptively is Waived therefore, is, by § in- waived 6511 and it State Insurance Protection Act upon provide all cumbent the State to import This first Court considered the the facts as to how the Committee met its Pajew the State Insurance Protection Act in responsibilities under 18 Del. ch. 65. C. (1976). Perry, Del.Supr., v. ski (emphasis Pajewski Perry, v. 363 A.2d at 436 Chapter We determined that Title added). comprehensive program created “a insurance 1985, however, implementing provi with administrative In this Court determined presumptive sions.” Id. at 435. We also noted that that the State had rebutted the

1389 only by legislative Blair v. immunity in 18 act. sovereign provided waived waiver (1974). Anderson, Cates, Del.Supr., 325 A.2d 96 Del.Supr., 499 Doe v. Del.C. stated, however, (1985). that also has This Court 1175 that conclu- A.2d We reached waiver not be is clear ... that need “[i]t had tran- sion because of the events that statutory express language.” Id. made years Pajewski spired during the nine since Blair, that example, for this Court held During period of had been decided. that Assembly authorizes a the General time, “when formed Del.C. ch. Committee 18 implicitly neces- contract to be made it and good 65 had made numerous unsuccessful sarily immunity to suit for waives breach attempts funding from the faith to secure Accord the State that contract.” Id. Assembly comprehen- to formulate a Authority, Waste Delaware Solid Sandt plan. coverage Id. at 1177-79. sive insurance (1994).17 Similarly, Del.Supr., 640 A.2d Cates, this that “it was Court noted authorizes when responsi- never said that the Committee was liability purchase funds the of a commercial coverage ensuring actually for exists. ble that contract, sovereign insurance acts waive impossible It for the Committee to cre- immunity to of the limits of the extent coverage funding.” ate Id. at 1178. without policy purchased. that is found, law, that We as a matter of therefore 1309(20); ch. 65. Del.C. because the had never the com- State funded Blair, In a manner with this consistent prehensive Coverage Pro- Insurance State subsequently explained applied gram described in 18 Del.C. the State holding forth at end of the alternative set presumption it had had rebutted the that Kennerly v. Del. the Cates decision. immunity pursuant sovereign waived to such (1990). Supr., A.2d On of this behalf program. Id. at 1179. Court, Justice Walsh wrote: sovereign immunity is The doctrine of State Commercial Insurance applica- favored in the law because its Separate Funding Authorization and disputes claims and on tion tends defeat Sovereign Immunity Constitutes Waiver Pajewski grounds other than the merits. Nevertheless, purposes of the case sub (1976). A.2d Perry, Del.Supr., 363 judice, significant holding most Cates Assembly’s adoption The General found in paragraphs is the last three provides that the de- Cates, opinion. Del.Supr., Doe v. immunity sovereign fense of “cannot Notwithstanding this be as to or loss will not asserted” risks comprehensive Court’s conclusion “commercially procured insur- covered coverage plan contemplated insurance ance,” liability public policy reflects a Chapter imple- 65 of Title 18 had not been public purchased insurance funds despite good mented faith the Committee’s pay- must be as a source considered efforts, this “for Court remanded the case against agencies. ment claims discovery on the issue whether the State Cates, Del.Supr., 499 A.2d Doe v. coverage for has insurance the claim assert- may upon It be that an en- ” Id. “[i]t ed.... This Court then held that trial, record, larged at it can demon- policy clear the of an existence insurance sovereign im- that the defense of strated covering appellant[’s] could ... claim [the] munity is of the absence of valid because constitute a waiver of record, present insurance. On the § (emphasis under 18 6511.” Id. add- Del.C. however, legal and doubt sufficient factual ed). grant inappropriate the exists as render summary judgment based that de- always acknowledged This has of on sovereign immunity can be fense. the State’s Sandt, Assembly upon called to rule on Sandt's In held that the were therefore not

17. we expressly Authority’s Waste argument had waived Delaware Solid that the Waste alternative Authority's sovereign enacting immunity by sovereign im- purchase of waived insurance 6406(a)(5) gives § Au- Del.C. which the Waste munity under 18 Del.C. thority power We "[s]ue and be sued.” State, Kennerly (emphasis specific v. 580 A.2d at 566 subsequent legislation was such added). purchase which and authorized funded the of the commercial insurance that is in at issue Thus, trilogy of decisions this Court this case. Cates, Pajewski, in Kennerly followed an

orderly logical progression. Pajew- In ski, this Court held that the State could not Sovereign Immunity Waived defeat Section 6511’swaiver of im- Acquired Commercial Insurance munity by funding comprehensive a in- expressed concerns this Court in Cates, program. In surance this Court held Pajewski were known to the General Assem- that the of existence some commercial insur- bly legislation establishing in 1979 when the coverage, comprehensive pro- ance without a Transportation Authority the Delaware gram State, for the could constitute a waiver enacted. ch. 13. Del.C. view sovereign immunity pursuant to Section program arrange nonexistence a that could Kennerly, 6511. In this Court held that the comprehensive purchase for the of commer- existence of commercial insurance would con- cial insurance for the benefit of all State Consequently, stitute such a waiver. agencies, Assembly expressly the General Cates, holdings Pajewski, in Kennerly Transportation authorized the Delaware Au- reflect consistent determinations this thority acquire its own insurance. Court that the unambiguous waiver of the 1309(20) Section Title the General As- sovereign immunity State’s set forth in Sec- sembly specifically gave the Delaware Trans- tion 6511 inoperative could not be rendered portation Authority power to Assembly’s the General failure to fund a comprehensive coverage program insurance against any Procure insurance in losses but, fact, in would be an effective waiver to property, operations connection with its Assembly extent that the General other- any assets of its administrations or subsid- purchase wise authorized and funded the iaries in such from in- amounts and such liability coverage. some commercial insurance surers as it deems desirable. Kennerly Del.Supr., v. 580 A.2d 561 1309(20). (1990); Cates, Del.Supr., Doe (1985); Pajewski Perry, Del.Supr., subsidiary DART was a established as cor- poration Transportation Delaware Au- 1, 1979, thority pursuant on October to 2 logical It is to ask how commercial insur- 1307(a), grants Del.C. which the Delaware ance could exist which would constitute a Transportation Authority power to create sovereign immunity waiver of under Section subsidiary corporations. parties agree comprehensive if a State insurance cov- October, that since DART in was established erage plan promulgated? had never been procured annually it has commercial question One answer to that is found in liability parties agree insurance. The also provides: Section money purchase for the of those Existing any insurance contracts and re- policies ap- commercial insurance has been may newals thereof continue full force propriated by from pro- and effect unless and until otherwise Transportation Authority the Delaware fund. vided the Director. Thus, comprehen- until regard With to the claims at issue this plan operative, sive State insurance became proceeding, the record reflects that DART sovereign immunity the waiver of in Section liability policy renewed commercial 6511 would be commensurate with the level Company, July Reliance Insurance effective any “existing insurance contracts and 1, 1989, July 1988 to the amount one renewals thereof.” Id. policy million dollars. That was renewed Another again July basis the existence of commer- on 1989. DART renewed also protect policies cial insurance to the State two million umbrella and excess $5 specific legislation period would be enacted subse- other commercial carriers for the 1,1988 1,1990. quent adoption July through July to the of Title 18 ch. 65. It public funds that the treasury, would mean Assembly authorized When commercial insur- premiums lia- acquisition expended of commercial on funded the Assem- by the Delaware The General bility policies insurance had been wasted. ance materia, subsidiary Authority actions, pari and its were Transportation read bly’s DART, by which provide a method illogical it acted results. preclude such intended agencies 1309(20). will injured by the State or its 65; those ch. 2 Del.C 18 Del.C. time, while, at the same compensated treasury. protecting the State Conclusion 1309(20); The General 18 Del.C. ch. 65. reasons, respectfully I foregoing For the logically recognized that it was dissent. purchase insurance then inconsistent to to assert the de- allow a commercial carrier immunity. sovereign

fense of insurer to Permitting a commercial the defense of

assert indi- only deny protection to those

would not neg- injured by the were State’s

viduals who but, protecting the State

ligence rather

Case Details

Case Name: Turnbull v. Fink

Court Name: Supreme Court of Delaware

Date Published: Oct 26, 1995

Citation: 668 A.2d 1370

Docket Number: 79, 1994

Court Abbreviation: Del.