Texas Supreme Court: No Sovereign Immunity for Government Contractors

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Among the thirteen opinions released by the Texas Supreme Court last Thursday was Brown & Gay Engineering, Inc. v. Olivares, in which the Court held that Texas government contractors who exercise independent discretion in their work are not entitled to the same sovereign immunity as the government itself. This opinion stopped what could have been a broad expansion of the sovereign immunity doctrine.

In this case, a driver was killed on the Westpark Tollway in a head-on collision with a drunk driver driving the wrong way. The driver's family sued Brown & Gay, the engineering company operating the Tollway under contract with the Fort Bend Toll Road Authority, arguing that Brown & Gay failed to put up signs or lights that would have warned the drunk driver not to enter the Tollway on an exit ramp.

Brown & Gay moved to dismiss the suit, arguing that it was entitled to sovereign immunity-the doctrine which holds that the State government and its subdivisions cannot be sued without its consent-because it was performing a government function on behalf of a government entity. Brown & Gay also argued that the sovereign immunity doctrine's modern justification-that it protects the public treasury-suggests that it should also be extended to government contractors because immunizing government contractors from liability will make their services less expensive for the government.

A 5-justice majority of the Texas Supreme Court rejected Brown & Gay's arguments held that while government employees are entitled to a form of derived sovereign immunity under the Texas Tort Claims Act, that right does not extend to independent contractors who have discretion over how to perform their own work. Justice Debra Lehrmann, writing for the Court, examined the purpose of the sovereign immunity doctrine and reasoned in part that the sovereign immunity doctrine is intended to prevent unexpected government outlays, not the increased contract rates warned of by Brown & Gay as a result of liability insurance premiums.

Chief Justice Nathan Hecht, writing for a 3-justice concurrence, agreed with the majority but opted for a more direct approach: Sovereign immunity only protects governments, private contractors are not governments, ergo contractors are not entitled to sovereign immunity. However, he also wrote that the majority's view of the purpose of sovereign immunity-to protect against unforeseen expenditures-was too narrow, especially given the fact that sovereign immunity also protects the government from nonmonetary relief.

If you or someone you know has been injured in an accident with a drunk driver, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

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