In Case You Missed It: Sovereign Immunity Still (Mostly) For Sovereigns
By Lucas Blackadar, Esq.
Just this past spring, the Texas Supreme Court decided Brown & Gay Engineering, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015), a case arising from the death of two motorists – one intoxicated and one sober – on the West Park Tollway in Fort Bend County, Texas. The key question raised in the case was whether Brown & Gay Engineering (B&G), the engineering firm retained by the Fort Bend County Toll Road Authority to design the signage and layout for the Tollway, could be protected under sovereign immunity. B&G was an independent contractor, so some on the Court felt that resolving that question was, more or less, a complete and utter waste of time. However, the Court decided to engage, swatted down most, if not all, of B&G’s arguments, and actually provided some helpful guidance in the process.
The purpose of sovereign immunity is to protect the public treasury. No longer does sovereign immunity represent the archaic notion that “the King can do no wrong.” Rather, sovereign immunity protects the government, and by extension, the public, from having to expend valuable resources, monetary and otherwise, on sudden, unexpected litigation. Since litigation costs and damages are virtually incalculable at a lawsuit’s outset, this protection is critical for the government to perform its regular operations.
Nevertheless, sovereign immunity IS NOT purely a cost-saving measure. Despite that the modern justification for sovereign immunity is to protect government funds, it is not simply a cost-saving mechanism. Sovereign immunity protects the government from unforeseen expenditures, expenditures that could potentially hurt the public by requiring the government to divert resources away from other important functions.
Independent contractors have plenty of other means to protect themselves from bearing burdensome litigation costs. Perhaps most importantly, independent contractors on government projects don’t need sovereign immunity. They carry professional liability insurance and are often required by the contract to carry additional insurance. Moreover, the costs incurred by the independent contractors in connection with carrying such insurance can and are usually reflected in the negotiated contract price.
Though the jury is still out as to whether opining the Brown & Gay Engineering case was necessary, the opinion does at the very least illustrate the Court’s thought process and priorities when deciding to apply sovereign immunity. Government contractors, take heed.
 “In my view, it is unnecessary, and also incorrect, to argue, as the Court does, that affording a highway contractor immunity does not serve immunity’s purpose in shielding the government from financial liability.” Id. at 130 (Hecht, J. concurring).