PRESENT: All the Justices
DEON ERIC COUPLIN
OPINION BY
v. Record No. 041985 JUSTICE G. STEVEN AGEE
June 9, 2005
AUBREY GILL PAYNE, JR.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
Deon Eric Couplin, the plaintiff in a personal injury
action arising from a collision between his vehicle and a
Metropolitan Washington Airport Authority ("MWAA") ambulance
driven by the defendant, Aubrey Gill Payne, Jr., appeals from
the judgment of the trial court holding that Code § 5.1-173(B)
afforded Payne immunity from his alleged gross negligence
causing the accident. The issue before us is whether Code
§ 5.1-173(B) accords employees of the MWAA immunity from tort
claims of gross negligence while engaged in the performance of a
governmental function. We conclude that the statute does not
accord immunity to MWAA employees in such circumstances and
therefore we will reverse the judgment of the trial court.
I. BACKGROUND AND PROCEEDINGS BELOW
On August 16, 2000, Payne, an MWAA employee, was operating
an MWAA ambulance when he received a radio dispatch to respond
to an accident in the eastbound lanes of the Dulles Access Road
in Fairfax County, Virginia. In response to the radio dispatch,
Payne entered the westbound Dulles Access Road from an on-ramp
1
and attempted to cross the westbound lanes of traffic to a
median crossover to reach the accident site in the eastbound
lanes. In the course of traversing the westbound lanes, Payne's
MWAA ambulance struck Couplin’s vehicle which was traveling in
the far left westbound lane, causing Couplin to lose control of
his vehicle and "run off" the highway. As a result of the
accident, Couplin alleged he sustained severe injuries.
Couplin timely filed a motion for judgment against the MWAA
and Payne1 in the Circuit Court of Fairfax County alleging gross
negligence in the operation of the ambulance which caused the
accident and Couplin’s injuries. In response, the MWAA and
Payne filed a joint plea in bar interposing the statutory grant
of immunity under Code § 5.1-173(B).
At the plea in bar hearing in the trial court, Couplin
conceded, as he does on appeal, that the MWAA is immune from
suit under Code § 5.1-173(B) because under the circumstances of
this case, the operation of the ambulance was in the performance
of a governmental function. After argument and briefing by
counsel, the trial court sustained the plea in bar as to Payne.
The trial court opined that the statute barred a claim against a
1
Dollar Thrifty Automotive Group, Inc. and State Farm
Mutual Insurance Co. had uninsured motorist exposure in the
original suit and were named as defendants. The instant
proceedings have no effect on their status as defendants in this
case.
2
MWAA employee for any tort committed in the course of performing
a governmental function, including those involving grossly
negligent conduct. By order of May 27, 2004, incorporating its
bench ruling, the trial court dismissed Couplin’s claim against
Payne and the MWAA with prejudice. We awarded Couplin this
appeal.
II. ANALYSIS
The General Assembly established the MWAA in 2001 to
acquire, operate and protect Ronald Reagan Washington National
Airport and Washington Dulles International Airport and related
facilities.2 Code § 5.1-154; Acts 2001, ch. 342. The MWAA
performs many governmental functions in the discharge of its
delegated powers, including the operation of emergency public
services such as the ambulance service for which Payne was
operating a vehicle at the time of the accident. Code § 5.1-
156. In establishing the MWAA, the General Assembly
specifically set forth the scope of tort liability of the MWAA
in Code § 5.1-173(B), which provides as follows:
B. The Authority shall be liable for its contracts
and for its torts and those of its members, officers,
employees, and agents committed in the conduct of any
proprietary function, in accordance with the law of
the Commonwealth of Virginia but shall not be liable
for any torts occurring in the performance of a
governmental function. The exclusive remedy for such
2
The MWAA was created in conjunction with the District of
Columbia. Code § 5.1-152, et seq.
3
breach of contracts and torts for which the Authority
shall be liable, as herein provided, shall be by suit
against the Authority. Nothing in this act shall be
construed as a waiver by the Commonwealth of Virginia
or the District of Columbia or of their political
subdivisions of any immunity from suit.
The first two sentences of subsection B make it clear that
the MWAA is directly and solely liable for the torts of its
employees “committed in the conduct of any proprietary
function.” Couplin concedes that Payne’s operation of the MWAA
ambulance was in the performance of a governmental function and
thus he cannot maintain a cause of action against the MWAA or
Payne on the basis that the accident was in the conduct of a
proprietary function.
The last clause of the first sentence of subsection B
clearly provides that the MWAA “shall not be liable for any
torts occurring in the performance of a governmental function.”
Couplin concedes this provision bars any claim by him against
the MWAA for liability as a result of the accident.
Unlike the specific provisions of the first sentence of
subsection B that assign liability to the MWAA for its
employees’ torts “committed in the conduct of any proprietary
function,” there is no corresponding language regarding torts
committed by MWAA employees while engaged in the performance of
a governmental function. The MWAA argued to the trial court,
and argues on appeal, that the statute should be read to also
4
bar claims against MWAA employees for torts committed during
performance of a governmental function.3
The MWAA contends that the phrase “shall not be liable for
any torts,” in Code § 5.1-173(B), is intended to mean torts
committed either during a proprietary or governmental function.
Further, the MWAA argues that when this clause is read with the
second sentence of subsection B, “the exclusive remedy for such
. . . torts . . . shall be by suit against the Authority,” the
statute intends to bar any tort cause of action directly against
an MWAA employee. To read this language otherwise, the MWAA
argues, would defeat the purpose of the statute because “[t]he
statutory grant of immunity would be toothless under the
plaintiff’s argument that the employee was not immune[] because
the authority would be indirectly liable for the employee's
torts.”
In response, Couplin argues that the statute means what it
says and no more. He contends that since the statute does not
provide any limit on an employee's liability in the performance
3
While not cited by either party on the present appeal, in
Washington Metro. Area Transit Auth. v. Briggs, 255 Va. 309, 497
S.E.2d 139 (1998), the Court considered Section 80 of the
Washington Metropolitan Area Transit Regulation Compact,
codified in Code §§ 56-529 and -530, which contains the same
operative language as Code § 5.1-173(B). The provisions were
described as waiving the Authority's sovereign immunity for
torts committed by its employees "in the conduct of any
proprietary function," but the issue argued on the present
appeal was not there presented.
5
of a governmental function, then the common law tort liability
of governmental employees would govern any cause of action
against Payne.
The trial court agreed with the MWAA, noting “[i]t’s
absolutely not clear and all we can do is look to the language
of the statute.” The trial court then concluded that the
statutory immunity of Code § 5.1-173(B) implicitly shielded
Payne from liability in performing a governmental function:
I think it doesn’t make any sense to have the
authority enjoy immunity and the employee not . . . .
. . . .
The language of the section does not include any
language specifically stating that the employees enjoy
the same exemption, that is the same immunity, but it
does provide that the authority is responsible for the
torts of its employees. Thus, even though the
authority may not be sued directly, if it is
responsible for the torts of its employees and if its
employees may be sued, then the authority is
indirectly responsible.
We agree with Couplin’s analysis of the statute and
thus find the trial court erred in sustaining Payne’s plea
in bar.
Under the basic principles of statutory construction,
we must determine the General Assembly’s intent from
the words contained in a statute. When the language
of a statute is unambiguous, we are bound by the plain
meaning of that language and may not assign the words
a construction that amounts to holding that the
General Assembly did not mean what it actually stated.
6
Commonwealth v. Diaz, 266 Va. 260, 264-65, 585 S.E.2d 552, 554
(2003) (citations omitted).
Subsection B of Code § 5.1-173 clearly subjects the MWAA to
liability for the torts of its employees committed during the
performance of a proprietary act and provides that such an
action against the MWAA is the exclusive remedy for an
employee's proprietary torts. It is just as clear that torts
committed in a proprietary function are the only torts “for
which [MWAA] shall be liable.” The plain language of the
statute thus belies the MWAA’s argument that the exclusive
remedy provision applies to torts committed in a governmental
function because those are not torts “for which the Authority
shall be liable.”
The plain language of the statute similarly negates the
MWAA’s argument that the “any torts” language of the first
sentence of subsection B relieves MWAA employees of their
liability for governmental function torts. To the contrary,
immunity applies under the statute’s clear terms only to “The
Authority” (the MWAA) when a tort is committed during the
performance of a governmental function.
Without question, the General Assembly knows how to grant
immunity to MWAA employees, as it clearly did in the second
sentence of subsection B, for torts committed in the conduct of
a proprietary function. There is simply no such statutory
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immunity written in the statute for MWAA employee torts
committed during the performance of a governmental function.
This is a significant statutory expression because “the mention
of . . . specific item[s] in a statute implies that other
omitted items were not intended to be included within the scope
of the statute.” Smith Mountain Lake Yacht Club v. Ramaker, 261
Va. 240, 246, 542 S.E.2d 392, 395 (2001). Under the principle
of expressio unius est exclusio alterius, we must conclude the
General Assembly intentionally excluded a grant of statutory
immunity to MWAA employees for torts committed during a
governmental function.
Moreover, the codification of immunity in Code § 5.1-173(B)
is in derogation of the common law. In such a circumstance,
only those parts of the common law directly altered by the
statute are deemed to be changed. As we have previously
explained:
The common law will not be considered as altered or
changed by statute unless the legislative intent is
plainly manifested. A statutory change in the common
law is limited to that which is expressly stated or
necessarily implied because the presumption is that no
change was intended. When an enactment does not
encompass the entire subject covered by the common
law, it abrogates the common-law rule only to the
extent that its terms are directly and irreconcilably
opposed to the rule.
Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302
(1988) (citations omitted).
8
There is no legislative intent “expressly stated or
necessarily implied” in Code § 5.1-173(B) according statutory
immunity to MWAA employees for torts committed while performing
a governmental function. Accordingly, the common law rule of
liability for gross negligence on the part of a governmental
employee remains unaltered by the enactment of Code § 5.1-
173(B). As we expressed on prior occasions:
In Virginia, a government agent entitled to the
protection of sovereign immunity is not immunized from
suit. Rather, the degree of negligence which must be
shown to impose liability is elevated from simple to
gross negligence.
Colby v. Boyden, 241 Va. 125, 128, 400 S.E.2d 184, 186 (1991)
(citation omitted). See also Friday-Spivey v. Collier, 268 Va.
384, 601 S.E.2d 591 (2004).4
Notwithstanding the foregoing, the MWAA contends the
statute should be read to create immunity for claims against
MWAA employees because the MWAA may have indirect liability for
a claim such as Couplin’s. This argument is unpersuasive.
Nothing in the record establishes that the MWAA has any
liability to Payne should Couplin obtain a judgment against him.
Even if the MWAA had some contractual or other indemnity
obligation to Payne, it would not bear on the application of the
4
The application of sovereign immunity for a governmental
employee where gross negligence is not alleged, is controlled by
the principles enunciated in James v. Jane, 221 Va. 43, 282
9
statutory provision because we are bound by the plain meaning of
the statute, which affords no immunity in this case.
We presume that the legislature chose, with care, the
words it used when it enacted the statute. Courts
cannot add language to the statute the General
Assembly has not seen fit to include. Nor are they
permitted to accomplish the same result by judicial
interpretation. Where the General Assembly has
expressed its intent in clear and unequivocal terms,
it is not the province of the judiciary to add words
to the statute or alter its plain meaning.
Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d
901, 906 (2005) (citations and internal quotation marks
omitted).
III. CONCLUSION
Code § 5.1-173(B) provides no statutory immunity to Payne
as an MWAA employee for a tort committed in the performance of a
governmental function for the MWAA. Accordingly, the trial
court’s judgment sustaining Payne’s plea in bar was in error.
We will, therefore, reverse the judgment of the trial court and
remand the case for further proceedings in accordance with this
opinion.5
S.E.2d 864 (1980) and Messina v. Burden, 228 Va. 301, 321 S.E.2d
657 (1984).
5
Payne asserted on brief that this court should affirm the
trial court’s judgment, even if we find Code § 5.1-173(B) does
not accord him immunity, because Payne’s alleged conduct does
not constitute gross negligence. However, Payne specifically
advised the trial court that “we don’t need to get into the
gross negligence issue” if the trial court agreed with his
argument under Code § 5.1-173(B). Accordingly, we do not
consider Payne’s argument. Rule 5:17(c). Payne may, however,
10
Reversed and remanded.
raise this argument on remand. See Baumann v. Capozio, 269 Va.
356, 361, 611 S.E.2d 597, 600 (2005).
11