dissenting:
The majority opinion of this court holds that the Health Care Providers Malpractice Act, (“HCPMA”), 27 V.I.C. § 166 (Equity Supp.1983), has impliedly repealed the Virgin Islands Torts Claims Act, 33 V.I.C. § 3411 (Equity Supp.1983) (“VITCA”), so that a plaintiff can now recover in a wrongful death action against the government any amount in excess of $25,000 for which the Commissioner has insured the hospital — in this case $100,000. The majority has so held despite the fact that wrongful death actions are explicitly excepted from the Medical Malpractice Act by section 166(b) of the Act, and despite the fact that Richards v. The Government of the Virgin Islands, 579 F.2d 830 (3d Cir.1978), has limited wrongful death actions against the Virgin Islands government to $25,000.
I cannot agree with this result nor with the reasoning which leads to it. I dissent.
I.
Under its organic act, the Virgin Islands enjoys complete sovereign immunity. 48 U.S.C. § 1541 provides that “no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature.” Thus, by express mandate of Congress, the Government of the Virgin Islands enjoys complete sovereign immunity, and such immunity may be waived only by the legislature. Indeed, insofar as tort actions against the government are concerned, the legislature has waived immunity but only to the extent of $25,000. 33 V.I.C. § 3411.
In approaching the question of waiver of sovereign immunity, both the Supreme Court and this court have made clear that such a waiver will not lightly be inferred. In Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), the Supreme Court declined to toll the statute of limitations for the duration of hostilities in a suit against the United States, stating that: “This Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Id. at 276, 77 S.Ct. at 273. Similarly, this court has declined to read an earlier version of the Virgin Islands organic act to allow tort suits against the Government of the Virgin Islands based on “non-governmental” acts absent explicit language authorizing such suits. Harris v. Municipality of St. Thomas & St. John, 212 F.2d 323 (3d Cir.1954). According to this court in Harris, the two municipalities of the Virgin Islands “having ‘many of the attributes of quasi sovereignty possessed by the states’ ... could not be sued except to the extent that each consented to be sued, by appropriate legislation of its respective legislative body.” Id. at 327, quoting Porto Rico v. Shell Co., 302 U.S. 253, 262, 58 S.Ct. 167, 171, 82 L.Ed. 235 (1937). These cases demonstrate that a waiver of sovereign immunity will not be implied, that an express waiver of sovereign immunity will be strictly construed and narrowly read, and that only the legislature, not the executive, may waive sovereign immunity.
*1003II.
If the Government of the Virgin Islands is to be held liable at all in this case, then, some act of the legislature must satisfy this strict test for waiver of sovereign immunity. The majority relies on certain provisions of the HCPMA as constituting such an implied waiver. To place the majority’s result in context, however, three pertinent Virgin Islands statutes must be considered: VITCA, the HCPMA, and, since this case involves malpractice resulting in death, the Virgin Islands Wrongful Death Act, 5 V.I.C. § 76 (Equity Supp.1983). Examination of these statutes reveals not only that the HCPMA evidences no plausible intent to waive sovereign immunity, but that the interrelation of these three statutes presents a scheme that is entirely inconsistent with any legislative intent to waive sovereign immunity in malpractice actions to an extent greater than that provided by VITCA.1
A.
VITCA represents the Government of the Virgin Islands’ express, limited waiver of sovereign immunity. Duly enacted by the legislature of the Virgin Islands, VIT-CA constitutes the “consent of the legislature” required by 48 U.S.C. § 1541(b) before the Government of the Virgin Islands may be sued. Besides waiving sovereign immunity “with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the Virgin Islands.” 33 V.I.C. § 3408, VIT-CA also provides: “No judgment shall be awarded against the Government of the Virgin Islands in excess of $25,000.” 33 V.I.C. § 3411. The statutory language is emphatic: no judgment shall exceed $25,-000. Yet the majority today permits a judgment of $100,000 against the Government of the Virgin Islands even though no intervening Act of the legislature has repealed or amended this limitation of recovery in VITCA.
B.
The majority opinion relies on certain provisions of the HCPMA as both repealing the express limitation of VITCA and constituting the legislative consent necessary under 48 U.S.C. § 1541(b). HCPMA enacted a comprehensive scheme for the regulation of health care providers and the compensation of malpractice victims. The Act creates procedures for agency review of malpractice claims and reference to professional boards for disciplinary action. 27 V.I.C. §§ 166g, 166i, 166j. The Act limits recovery for a malpractice claim to $250,000 except in the case of malpractice resulting in death, in which case the unlimited recovery of the Wrongful Death Act applies, 27 V.I.C. § 166b — unlimited, that is, except in the case of the government, against which recovery cannot exceed $25,000. See Richards v. Government of the Virgin Islands, 579 F.2d 830 (3d Cir.1978). The Act also authorizes the Commissioner of Health to procure a group insurance policy to cover all “health care providers,” as defined in the Act. 27 V.I.C. § 166e. The cost of this insurance is to be paid by the Government, for which it is reimbursed in full by health care providers in private practice, and reimbursed in part by part time government employees. Under section 166e, the policy procured by the Commissioner .must provide coverage for at least $100,000 per patient per occurrence.
*1004C.
Also implicated in this case, and explicitly made applicable by section 166b of HCPMA,2 is the Wrongful Death Act, 5 V.I.C. § 76. This Act provides a cause of action for wrongful death. The Act does not provide for any limitation on the amount recoverable. In Richards, supra, a case involving the shooting death of a citizen by a government employee, this court held that the Wrongful Death Act did not extend the waiver of sovereign immunity under VITCA, and that wrongful death actions against the government are limited in recovery to the $25,000 amount specified by VITCA.
III.
Nevertheless, the majority construes the HCPMA to create two classes of Wrongful Death claimants against the Government of the Virgin Islands; those suing under a claim of medical malpractice and those suing under all other claims. Thus, according to the majority, if a policeman intentionally (let alone negligently) fires his weapon and kills someone, the $25,000 limit applies (Richards), but if a surgeon negligently slips with his scalpel, government liability is limited only by the insurance coverage prescribed by the Commissioner of Health — here, $100,000, but presumably this coverage could be provided up to $250,-000. Such a distinction is not only illogical, but it finds no support in the statutes or the case law.
Yet, the majority so construes the HCPMA without any indication that the legislature which enacted the HCPMA so intended to extend the Government’s liability 3 and despite this same majority’s protestation this same day that “[w]e decline to create two classes of wrongful death plaintiffs — those suing for wrongful death re-suiting from malpractice, and those suing for wrongful death resulting from other torts.” Richardson v. Knud Hansen Memorial Hospital, 744 F.2d 1007 (3d Cir.1984) (maj. op. at 1012).
According to the majority’s holding today, a medical malpractice claimant can recover from the government up to the amount of insurance which the Commissioner has obtained for the hospital. In the present case the recovery can reach $100,-000. While the majority declines to decide it, I assume that if the Commissioner increases the amount of insurance for the Charles Harwood Hospital to $250,000 next year, a recovery of up to $250,000 could be had. I also assume that if for some reason the Commissioner insured the Charles Harwood hospital for $150,000 and the Knud Hansen Hospital for $200,000, a patient’s recovery against the government would vary according to the institution in which he was hospitalized despite the fact that they are both Government hospitals. (Indeed they are the only two hospitals in the Virgin Islands.) Yet the Virgin Islands legislature has nowhere consented to such arbitrary waivers of sovereign immunity.
In each instance the amount of recovery would exceed $25,000 even though nowhere is there to be found an exception to the $25,000 limitation specified in VITCA. Moreover, and most significantly, the authority for these recoveries against the government in excess of $25,000 originates not from the legislature which has the function of waiving sovereign immunity, if it is to be waived. Rather the authority for these excess recoveries results from the Health Commissioner’s unilateral act by which, under the majority’s holding, sovereign immunity of the Virgin Islands may be waived.
*1005IV.
The majority bases its finding of waiver of sovereign immunity on two provisions of the HCPMA. The first is the definitional section, which defines “Health care provider” as “including a ... hospital,” and defines “Hospital” as “a public or private institution licensed under 19 Virgin Islands Code, Chapter 15.” 27 V.I.C. § 166(c), (d). The second is the HCPMA’s insurance provision which “authorize[s] and direct[s] [The Commissioner of Health] to procure a group insurance policy which shall cover the cost of Professional Liability Insurance on an occurrence basis for health care providers as defined in section 166(c) of this subehapter.” 27 V.I.C. § 166e(a).
These two provisions are the only bases, and indeed constitute the only language, the majority can find in the HCPMA to demonstrate a waiver of sovereign immunity. Yet, contrary to the majority’s assertion that any other reading would render the inclusion of the term “public institutions” within the statute as superfluous, its inclusion is entirely consistent to achieve the other purposes assigned to the medical malpractice review board. As I have pointed out, the HCPMA includes all aspects of review of medical practices and is not confined to just providing insurance coverage for claims. Moreover, the definitional language, “public or private institution,” was borrowed from the Indiana statute upon which the HCPMA is based, Ind.Code § 16-9.5-1-1(a). Indiana, however, had previously abrogated sovereign immunity in this sort of action. See Seymour National Bank v. State, 179 Ind.App. 295, 384 N.E.2d 1177 (1979) (in banc) rev’d on other grounds, 422 N.E.2d 1223 (Ind.1981), modified 428 N.E.2d 203 (Ind.1981).
The borrowing of language from a statute which did not itself abrogate sovereign immunity, cannot evidence legislative intent to abrogate sovereign immunity in the new statute. The most that can be said is that the Virgin Islands legislature inadvertently included the term “public institution” as a health care provider without realizing that under VITCA no claim could exceed $25,000 because both hospitals were government owned instrumentalities. The fact that the Health Commissioner thereupon insured the hospitals for more than $25,-000 indicates no more than that the legislation was inartfully drawn and inartfully implemented.
That the Virgin Islands Legislature did not recognize that the HCPMA, if read literally, would include immune (i.e., government) public hospitals in the insurance scheme is reflected both in the fact that the definition also includes “private institutions” even though there are no private hospitals in the Virgin Islands, and in the fact that the insurance provision itself sets out a reimbursement scheme which has no reference to a hospital as an individual entity. Section 166e refers only to full time government employees, part time government employees, and private practitioners. It does not contemplate, by its terms, insurance coverage for the hospitals themselves.4
*1006V.
The majority relies on two cases, Jackson v. Housing Opportunities Commissioner, 289 Md. 118, 422 A.2d 376 (1980) and Longpre v. Joint School District No. 2, 151 Mont. 345, 443 P.2d 1 (1968) claiming that they support the proposition that a statutory authorization of liability insurance evidences legislative intent to waive sovereign immunity.
Both Jackson and Longpre, however, involved insurance coverage for governmental entities subject to suit in their own right. Jackson explicitly relied on the legislative direction that the Housing Opportunities Commission there involved was expressly authorized “to sue and be sued.” 422 A.2d at 379. The Jackson court was concerned with whether the legislature had granted the governmental entity, in that case the Commissioner, the capacity to be sued and whether, given that capacity, the legislature had consented to permit suit against the Commission. It concluded that both requirements had been met and therefore held that a waiver of sovereign immunity had been effected. In the present case, the entity to be insured pursuant to the HCPMA — the hospital — is not itself subject to suit other than by an action against the Government. See maj. op. 999-1000 & n. 3.
Thus, at the very threshold, neither Jackson nor Longpre can be regarded as authoritative support for the majority’s thesis that the mere provision for liability insurance constitutes a waiver of sovereign immunity. It is evident that the Virgin Islands legislature has never given authority to either the Charles Harwood Hospital or the Knud Hansen Hospital to be sued and it was that capacity “to be sued” that was the fact in Longpre and was the linchpin of the Jackson decision.
Even were the Jackson and Longpre cases on point, they would not be dispositive, as they represent a minority rule. See, e.g., Seymour National Bank v. State, 428 N.E.2d 203 (Ind.1981); Zapf v. Board of Chosen Freeholders, 87 N.J.Super. 426, 209 A.2d 660 (App.Div.1965); An-not., 68 A.L.R.2d 1437 (1959 & 1984). At the very least, the question whether procurement of insurance waives sovereign immunity is an open one in the Virgin Islands. Given the congressional mandate that only the legislature may waive sovereign immunity, the prior existence of VIT-CA, which constitutes an explicitly limited waiver of sovereign immunity, and the fact that the hospital insured cannot itself be sued, I am not persuaded that the minority rule, implying waiver by insurance coverage, is the preferred rule to be followed by the Virgin Islands.
In light of the rule that waivers of sovereign immunity are to be given a strict interpretation, I cannot conclude that the HCPMA has expanded the limited waiver of sovereign immunity provided for in VIT-CA. I believe the only sound construction of the statutes involved must be that all claimants against the Government of the Virgin Islands are limited to a recovery of $25,000, whether the claim is based on medical malpractice not resulting in death, malpractice resulting in death, or, indeed, any other claim.
To hold that VITCA has been extended as the majority has extended it, by virtue of two isolated provisions found in the HCPMA, is to distort the entire concept of sovereign immunity. The majority opinion’s tenuous construction of an insurance provision which it holds is sufficient to waive sovereign immunity, despite the Congressional directive that only the legislature may waive immunity, is, in my view, simply incorrect. I therefore dissent.
. The majority opinion avoids attempting to reconcile these statutes by leaving unanswered the following questions: Does the $250,000 limit prescribed by HCPMA apply to wrongful death actions brought under 5 V.I.C. § 76? See maj. op. p. 999 n. 2. What effect would obtain in the event of differing levels of insurance coverage at the two government hospitals, or insurance coverage at any government hospital less than the HCPMA $100,000 minimum? See maj. op. at p. 1002.
Holding any recovery to the limits of VITCA resolves all such questions and reconciles all three statutes. Moreover, and contrary to the majority's view, limiting a recovery against the hospital (the Government) to $25,000 would not impair the coverage for government employees who obviously were the intended beneficiaries of the insurance program.
. 27 V.I.C. § 166b provides that "The recovery in an action for wrongful death of a patient shall be as provided in 5 Virgin Islands Code § 76."
. We were provided by counsel with the legislative history of the Health Care Providers Malpractice Act. 27 V.I.C. § 166 (Equity Supp. 1983). Neither counsel nor our own examination has revealed any discussion relevant to the issue which confronts us; i.e., whether the Virgin Islands Torts Claims Act, 33 V.I.C. § 3405 (Equity Supp.1983) was repealed or superseded by the HCPMA.
. Section 166e provides:
(a) The Commissioner of Health is hereby authorized and directed to procure a group insurance policy which shall cover the cost of Professional Liability Insurance on an occurrence basis for health care providers as defined in section 166(c) of this subchapter. Health care providers who engage in private practice and who participate in the group insurance policy procured by the Commissioner of Health shall reimburse the Government for their premiums, which reimbursement shall be deposited in the General Fund of the Treasury of the Virgin Islands. The Government of the Virgin Islands shall provide financial assistance toward the payment of premiums for health care providers who are employed by government agencies to perform or furnish health care on the following basis:
(1) For said health care providers exclusively employed by the Government of the Virgin Islands on a full-time basis, the entire premium shall be borne by the Government of the Virgin Islands.
(2) For said health care providers who, in addition to their employment with the Government of the Virgin Islands, engage on their own time in a private practice, one-half of the premium shall be paid for by said provider and one-half by the Government of the Virgin Islands.
27 V.I.C. § 166e(a) (Equity Supp.1983).