Lack of Insurance Preserves Sovereign Immunity

Sovereign Immunity Bars Tort Lawsuit Against State

Plaintiff Carmela Powell (“Plaintiff”) sued Defendant State of Delaware, Department of Corrections (“Defendant”) alleging that she was injured while visiting an inmate at the James T. Vaughn Correctional Center. The Complaint alleges the Defendant negligently caused Plaintiff’s injuries.

For most of American history, sovereign immunity protected federal and state governments and their employees from being sued without their consent. Starting in the mid-1900s, however, a trend toward government accountability began to erode sovereign immunity. In 1946, the federal government passed the Federal Tort Claims Act (28 U.S.C.§2674), waiving immunity to suit and liability for some actions. Many, but not all, state legislatures followed by enacting statutes to define the limits of immunity for state governmental entities and employees.

Sovereign immunity takes two forms:

  1. immunity from suit (also known as immunity from jurisdiction or adjudication) and
  2. immunity from enforcement.

The former prevents the assertion of the claim; the latter prevents even a successful litigant from collecting on a judgment.


In Carmela Powell v. State Of Delaware Department Of Corrections, C.A. No. N18C-12-233 ALR, Superior Court Of The State Of Delaware (June 16, 2020) the court was faced with a motion from the Defendant to dismiss the Complaint arguing that Plaintiff’s claims are barred by the doctrine of sovereign immunity.

Attached to Defendant’s motion was an affidavit of Debra Lawhead, the Insurance Coverage Administrator of the State of Delaware, which supports Defendant’s sovereign immunity argument by establishing the Defendant had no insurance and had not waived the immunity. The Court converted Defendant’s motion to dismiss into a motion for summary judgment and afforded the parties additional time to present all materials pertinent to such a motion.


The Court may grant summary judgment only where the moving party can show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A genuine issue of material fact is one that may reasonably be resolved in favor of either party.

The doctrine of sovereign immunity provides that neither the State nor a State agency can be sued without its consent. The General Assembly, however, can waive sovereign immunity by an Act that clearly evidences an intention to do so. There are two means by which the State may waive sovereign immunity: by procuring insurance coverage for claims in the Complaint; or by statute which expressly waives immunity.

The affidavit of Ms. Lawhead established that the State has not waived immunity. Ms. Lawhead avers that she reviewed the Complaint that the State of Delaware, and its agency thereof, has not purchased any insurance that would be applicable to the circumstances and events alleged in the Complaint. Ms. Lawhead’s affidavit confirms that no other statute waives immunity in this instance—a proposition that Plaintiff has not contested.

Accordingly, the doctrine of sovereign immunity bars Plaintiff’s claims against Defendant and Defendant is therefore entitled to judgment as a matter of law.


States often buy insurance to protect, and indemnify, the public against negligent acts by state officers, agents or employees and, if insurance is not available, waive immunity by statute. The wise state, trying to protect the assets of the state, avoid litigation by refusing to buy liability insurance and/or refusing to waive sovereign immunity. Whether the Defendant was negligent in causing injury to Ms. Powell or not, the Defendant was immune from that suit by the ancient doctrine of sovereign immunity.

© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as a

n insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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