What is Sovereign Immunity and Why Should Construction Contractors Care?

Sovereign immunity is very influential in determining the outcomes of damages lawsuits that involve any divisions of state governments

Many states invoke sovereign immunity to immediately dismiss any damages lawsuits against a state.
Many states invoke sovereign immunity to immediately dismiss any damages lawsuits against a state.

It’s crucial for construction contractors and consultants throughout the entire construction industry to fully understand sovereign immunity and the legal implications that are involved while working on a state-funded project or government property because any attempt to sue a state will result in an immediate dismissal unless the proper measures are taken and the state consents to jurisdiction.

What is sovereign immunity?

Sovereign immunity is a legal doctrine that originated with the Eleventh Amendment, which essentially states that the United States government can do no wrong. Within the construction industry this principle is very influential in determining the outcomes of damages lawsuits that involve any divisions of state governments. Some of these divisions include agencies, boards, hospitals, universities and so much more,. When these entities utilize the sovereign immunity doctrine as their defense they can be immune from any and all damages lawsuits, unless the state consents to jurisdiction.

The whole concept of sovereign immunity originated in 13th century England when the British courts determined that the King, and subsequently the king’s government, was immune from lawsuits. When the British colonized the United States centuries later each colony established sovereign immunity into law. After the American Revolution, the Supreme Court held onto sovereign immunity and applied it regularly until the laws changed in the 20th century.

It was in the 1950 Feres v. United States case when the Supreme Court held that the 1945 Federal Tort Claims Act (FTCA), which stated that the United States was as liable as any private individual and essentially waived sovereign immunity for many cases, did not apply to situations in which the defendant(s) are exercising their own overall discretion and judgment with the purposes to effectuate a governmental function.

This is where all of this becomes very much a part of construction law. In practice, the state has the right to grant or deny consent of jurisdiction when a construction injury/incident takes place on any particular government property or government-funded project. This pretty much means the states can decide whether or not any private citizen can sue them in federal court. Although these kinds of government immunity laws do vary from state to state, there is an overall legal notion that the government and all of its subsidiaries cannot be held liable for most instances of action, inaction or negligence that may have resulted in an injury to yourself, your clients or your client’s workforce due to unsafe working conditions or unforeseen circumstances on government property.

One of the worst parts about all of the red tape involved with sovereign immunity is that the general result of injury situations within the construction industry tend to leave any and all costs that are a result of an injury sustained while working for the government to be paid out of pocket. It becomes irrelevant in terms of who would normally be held liable for any particular legal situation when sovereign immunity is applied. This ends up leaving countless construction workers and contractors more susceptible to major financial windfalls of all facets while working with the government.

So in order for construction pros to be more prepared for these kinds of situations involving sovereign immunity this article seeks to provide you with a solid understanding of subject matter and personal jurisdiction and how it applies to sovereign immunity. We’ll also provide a general outline on how to go about an appeal to a state to allow a damages lawsuit.

Subject matter and personal jurisdiction

It’s pretty clear that everyone in the construction industry should care deeply about sovereign immunity, and jurisdiction is a major piece of this convoluted legal puzzle. Jurisdiction essentially is a legal term that entails a court’s authority or overall legal power to hear a case. What makes jurisdiction so important is that if a court deems it does not have jurisdiction over a case then it does not have the overall legal authority to judge that particular case.

This is a big part of the loophole that state governments utilize when they apply sovereign immunity to cases, which includes the fact that the only ways a court can provide a binding judgment on any particular case is if they have both subject matter and personal jurisdiction. Subject matter jurisdiction refers to a court’s authority or legal power to hear the type of case, while personal jurisdiction refers to the authority the court has over the parties to the case.

State governments evade countless legal ramifications within construction law by simply stating that the state court doesn’t have the legal authority, or jurisdiction, to establish a case against the government. This is essentially the basis of sovereign immunity, and it’s debilitating to contractors and construction consultants all across the country.

But it’s not impossible to have a state government allow a damages lawsuit. It just takes a significant amount of legal finesse in the appeals process.

How to appeal to a state to allow a damages lawsuit

It’s, of course, going to be necessary to utilize the assistance of a construction law expert when attempting to gain the consent of a state government to waive its sovereign immunity and allow a damages lawsuit. The only ways to have sovereign immunity waived is by a state or federal constitutional amendment or through an act of the state legislature. 

Here is a general outline as to how to appeal to a state government to allow a damages lawsuit.

Following business format is a big part of making sure that your appeal letter is taken seriously and stating reasons for appealing early on is also going to allow you to get right to the point. You’ll want to be concise and factual without going into too many details of a backstory.

Next you’ll have to identify your grounds for appealing, and this has to include legitimate reasons why a state government should allow the case.

Presenting persuasive arguments will be your elaboration into the reasoning for why the case should be heard, and this can include any witness information and a timeline of the events that took place on the government property or government-funded project.

Providing supporting evidence is how you’ll make sure you are keeping your arguments well substantiated, and this can include signed witness statements.

Lastly, you’ll need to state your desired outcome and indicate the particular legal resolution that is acceptable to the plaintiff(s).

For almost 25 years, Mark Cobb has been practicing construction law throughout the state of Georgia. He remains active in many professional organizations, and he speaks and lectures extensively on Georgia’s Mechanics and Materialmen’s Law, payment bonds and construction contracting. In addition, he publishes on similar topics regularly. In fact, Mark is currently working on a 50-State Lien Law publication for the American Bar Association’s Forum on the Construction Industry.