
    CIRCUIT COURT OF FAIRFAX COUNTY
    Rebecca R. Stover v. Keystone Builders, Inc., et al.
    March 11, 1992
    Case No. (Law) 107731
   By Judge F. Bruce Bach

This matter is before the Court on defendant Fairfax County Water Authority’s (FCWA) Motion for Summary Judgment. Oral argument was heard on February 21, 1992. The Court took the matter under advisement.

FCWA has filed a Motion for Summary Judgment claiming sovereign immunity. Stover claims that FCWA does not enjoy the sovereign immunity applied to counties because it is not an arm of the Commonwealth but a self-supporting corporation.

The issue is whether FCWA can be classified as an arm of the Commonwealth entitled to sovereign immunity. In Prendergast v. Northern Virginia Regional Park Authority, 227 Va. 190 (1984), the Court held that the Park Authority, established under the Park Authorities Act, was not an arm of the Commonwealth enjoying sovereign immunity. The Court stated that:

The correct approach is the one we have long employed in the Commonwealth: the attributes of the particular entity which seeks immunity must be examined to determine whether it is an “arm” of the Commonwealth.

Id. at 194. The Court used this approach in the earlier case of VEPCO v. Hampton Redevelopment Authority, 217 Va. 30 (1976), where the Court held that a municipal housing authority, created under the Housing Authorities law, was not entitled to sovereign immunity for negligence in the operation and maintenance of a housing project under its control. In Prendergast and VEPCO the Court examined how the authority came into existence and, once in existence, how the authority was managed. The Prendergast Court did not, as FCWA suggests, deny the Park Authority immunity because of the status of the creating locality.

The Park Authorities Act (Code § 15.1-1228 et seq.) and the Virginia Water and Sewer Authorities Act (Code § 15.1-1239 et seq.) provide for optional local activation and control, subject to statutory limitations. Indeed both Acts provide:

Each authority created hereunder shall be deemed to be an instrumentality exercising public and essential governmental functions to provide for the public health and welfare .. .

Code §§ 15.1-1232 and 15.1-1250. The language used in the statutes enabling the creation of the Northern Virginia Regional Park Authority and the Fairfax County Water Authority are virtually indistinguishable. As in Prendergast, FCWA was not directly created by the Commonwealth but is a creature of the County of Fairfax and is essentially subject to local control. Applying the “arm” of the Commonwealth test, the Motion for Summary Judgment based on sovereign immunity is denied.  