Special Report: Hit and On the Hook

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NEWPORT NEWS, Va. (WAVY) — “I’ve parked like this since 1999 and I’ve never seen or heard of an incident with a trash truck in any of these neighborhoods,” Mark Mitchell, a Newport News resident told 10 On Your Side.

That was, until September when a Newport News city trash truck collecting garbage damaged Mitchell’s SUV.

Mitchell said the driver was apologetic, and called a supervisor.

Mitchell says the supervisor provided him paperwork to submit to a claim through the city’s the risk management office.

“I just figured everything would be taken care of. You had a supervisor coming, the damage was clear,” he said.

Instead, he got a letter in the mail about a month later denying his claim.

It read in part:

“the department was operating in the scope of their employment and was involved in a governmental function …. which entitles the city … to the defense of sovereign immunity.”

“So sovereign immunity is the idea that the government cannot be sued,” explained John Cooper, a personal injury attorney in Norfolk. “It harks back to old England when you cannot sue the king.”

John Cooper, a personal injury attorney in Norfolk, says the defense doesn’t make much sense.

“The government is here to serve us. It’s a government of the people for the people by the people, but in this way they get protection as if they were the king.

And it’s not just Newport News. 10 On Your Side discovered that any Hampton Roads city could claim sovereign immunity regardless of if the driver is liable for the damage.

Here’s how it works:

If a city vehicle is performing a government function – like collecting trash, or a police car responding with lights and sirens to an emergency, and they damage your vehicle, sovereign immunity applies.

But, if the employee took a city vehicle to lunch, or a police officer is driving on routine business and damage a citizen’s vehicle, they lose that protection.

John Cooper tells 10 On Your Side, it’s a law he doubts most citizens have ever heard of, let alone understand.

“You don’t get a handbook from the city that says look oh we have this thing called sovereign immunity with our trash truck so if you leave your vehicle on the street, you’re putting yourself at risk, said Mitchell.

And what’s more confusing, 10 on your side found out the rule isn’t a one size fits all. City risk managers can chose when, and if, to invoke the sovereign immunity defense.

Jeff Rodarmel, risk manager in the mermaid city, says he tends to determine if a city driver was at fault, not if the driver could be protected by sovereign immunity:

“There have been examples over the years I’ve handled municipal work where we could have defended on sovereign immunity but because it was the right thing to do and our driver was simply liable for the claim, we pay those claims,” he said.

The only way to fight a sovereign immunity defense is if the citizen can prove the employee was grossly negligent.  A fight John Cooper says is nearly impossible.

“It’s just so high it’s almost like the unicorn, it theoretically exists by no one has ever really seen it,” Cooper explained.

In Mark Mitchell’s case – he didn’t take no for an answer.

After being denied by the office of risk management, he submitted his issue to the city manager who then said the city would pay for his damage.

Meaning, depending on who you complain to, and where you live, you could get a payout, or be hit and on the hook.

City officials in Newport News declined to be interviewed for our story, but sent a statement which reads:

Every claim is individually investigated and evaluated based on the facts and the law. The Newport News Office of Risk Management works closely with the Office of the City Attorney to determine whether the City is legally liable for the claims presented. Some vehicles are used to accomplish governmental functions for which the City is immune from liability under the legal doctrine of sovereign immunity. Garbage collection is a  governmental function which has long been covered by the doctrine of sovereign immunity in Virginia. The City is not legally liable for any negligence claims arising out of the governmental function of garbage collection. The City’s Office of Risk Management  correctly applied the doctrine and denied the claim of Mr. Mitchell and his co-owner. One of the owners of the vehicle  brought the circumstances of this particular event to the attention of the City Manager Office. Upon review of the details of the claim, the City Manager made an offer to pay for the damage to the vehicle subject to the vehicle owner signing the standard settlement release.