In Freer Volunteer Fire Department v. Wallace, a Texas appellate court considered a sovereign immunity case. The case arose when an ambulance driver was driving a man who was suspected to be having a heart attack to the hospital in an ambulance owned by the Freer Volunteer Fire Department. The ambulance hit the plaintiff’s car. The plaintiff’s daughter was a passenger in the car.
The plaintiff sued the driver and the city, claiming that the driver’s negligence injured her and her daughter. The driver filed an answer, claiming to be in the course and scope of his employment as a volunteer fireman and arguing he was immune from suit. The plaintiff added the Freer Volunteer Fire Department as a defendant. It filed an answer, also claiming that the driver was in the course and scope of his employment as a volunteer for it and that it was immune from suit. The plaintiff amended her petition again to drop the city as a defendant.
The driver and the Freer Volunteer Fire Department moved jointly to dismiss the driver under section 101.106(e) of the Texas Tort Claims Act (“Act”). This code section specifies that if a lawsuit is filed against a governmental unit and its employees, the employees must be immediately dismissed once the governmental unit files a motion for dismissal. In this case, the motion stated the driver was a volunteer employee and asked for dismissal. The plaintiff did amend and dropped the driver as a defendant.
The Freer Volunteer Fire Department filed a plea to the jurisdiction, claiming sovereign immunity. The plaintiff responded that the driver was a paid employee and also argued that the Department couldn’t argue he wasn’t an employee, since it had made representations that the driver was an employee in a joint motion to dismiss.
The Department argued in its brief to the court that the driver was a volunteer and was only given a stipend. It also claimed there was no hearing on that motion, and there were no judicial admissions made in the motion. The plaintiff claimed that the Department’s statements raised a factual issue of whether he was an employee. The trial court denied the plea to the jurisdiction, and the employer appealed.
The appellate court explained that the Freer Volunteer Fire Department is an emergency service organization, which is included within the law’s definition of a governmental unit and therefore subject to the rules of sovereign immunity. By law, immunity is waived for a personal injury that is legally caused by an employee’s negligence while acting within the scope of employment when the injury arises from using or operating a motor-driven vehicle. An employee is someone who is paid by the governmental unit, which means volunteers don’t count as employees.
The plaintiff had argued in her brief that the driver wasn’t a volunteer because the Department paid him a stipend for emergency runs and training sessions. However, under the Fair Labor Standards Act, a volunteer can be paid a nominal fee and still be considered a volunteer. The appellate court disagreed with her argument that the Department claiming he was an employee in its joint motion to dismiss the driver raised a factual issue. It reasoned that the reference within the motion didn’t change the facts.
The plaintiff also argued that since the Department called the driver an employee in its motion, it had waived its immunity by conduct. The appellate court explained that the Texas Supreme Court had decided not to recognize a waiver by conduct exception to immunity in contractual breach cases, and appellate courts had also not recognized such an exception regarding any type of claim.
The court noted that it didn’t condone the Department’s decision to refer to the driver as both a volunteer employee and a volunteer, but it didn’t give rise to exceptional circumstances whereby it would want to adopt a waiver by conduct exception to immunity.
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