Family law attorneys and those who litigate sovereign immunity claims might want to raise your hand! Otherwise, don’t blame me for the subject matter, blame the Supreme Court 😉

This week’s opinions both involve statutory interpretation. One appeared to be an easy call for the Court; the other—not so much.

First, the simple case.

In Newport News Sch. Bd. v. Z.M., the Supreme Court interpreted Va. Code § 22.1-194, a statute that waives sovereign immunity. What are the prerequisites for waiver under that provision? Here is the relevant portion:

§ 22.1-194. Liability of locality or school board owning or operating vehicle.

In case the locality or the school board is the owner, or operator through medium of a driver, of, or otherwise is the insured under the policy upon, a vehicle involved in an accident, the locality or school board shall be subject to action up to, but not beyond, the limits of valid and collectible insurance in force to cover the injury complained of or, in cases set forth in subsection D of § 22.1-190, up to but not beyond the amounts of insurance required under subsection A of § 22.1-190 and the defense of governmental immunity shall not be a bar to action or recovery…

The parties disputed whether establishing that a vehicle was “involved in an accident” is a prerequisite for sovereign immunity waiver.

The facts are sad (involving an autistic child allegedly abused on a school bus by school staff), but the legal decision was straightforward: The statute the plaintiffs attempted to rely on DID require a vehicle to be involved in an accident to waive sovereign immunity. Here, although the child was harmed in a vehicle, the vehicle itself was not involved in an accident. As a result, sovereign immunity barred the simple negligence claims.

But what about gross negligence? Sovereign immunity protected the school board, but the gross negligence claims could proceed against the employees. No major surprises with this decision.

Now for the more interesting case with wider repercussions: Lisann v. Lisann.

(A quick aside: Only Justice Kelsey writes an opinion like Justice Kelsey, and I’d be willing to bet that my appellate colleagues could have guessed who wrote this decision even if we hid the author from them!)

The Court of Appeals characterized the issue as “whether a party who intends to separate permanently at the commencement of the statutory separation period for a no-fault divorce must–to preserve the separation date–continuously maintain the intent to separate permanently throughout the separation period.” See Lisann v. Lisann, 78 Va. App. 225, 230-31 (2023) (emphasis in original). The CAV concluded the answer is no: the statutory intent requirement is satisfied if true “at the commencement of the statutory period.” 

What did the SCV decide? The key part of the majority’s holding: “Under this view, the intent to permanently live separate and apart must predominate during the statutory period.”

Interestingly, the Supreme Court disagreed with the reasoning of the CAV…but affirmed. And there was also a vehemently oppositional…concurrence? This is due in part to the street smarts of the Circuit Court judge (now on the CAV!), who simply decided that Wife satisfied her burden of proving that she had the requisite intent to justify a divorce pursuant to Code § 20-91(A)(9)—without further elaboration. The SCV majority thus concluded that even though it took a different view than the CAV as to what the law was, the record did not show any improper ruling and the record evidence was sufficient to support the decision. Judgment affirmed yet again!

So what does “predominate” mean in practice? The concurrence raises some interesting questions about how to interpret this (and whether this was, in fact, what the law is and should be). If you are litigating this issue anytime soon, be sure to read all parts of this opinion. 

Takeaways: 

• I might not have won over any hearts and minds on how interesting statutory analysis can be—but if I can’t persuade you, let Justice Kelsey and Justice Powell do it for me in the Lisann opinion.

• The majority quoted Bryan Garner, and if you haven’t read any of his books on legal writing, let this encourage you!

• The appellant managed to persuade different levels and members of the court system that there were problematic legal decisions at play…and still didn’t win. That’s an especially hard loss. But kudos to Judge Bernhard for managing not to get reversed despite it all! 

As always, I’m happy to discuss all things appeal anytime.