S. K. Scott, One of the Subscribers to the Insurance in the Certificate No. Pmp #311, Appellant, v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Appellee, 336 F.2d 557 (5th Cir. 1964)

This is an appeal by defendant third-party plaintiff (appellant), one of the subscribers to a certain certificate of insurance, No. PMP #311, from an order dismissing the third-party complaint as to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (University). The district court has directed the entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, see Travelers Ins. Co. v. Busy Elec. Co., 294 F.2d 139 (5th Cir. 1961); 6 Moore, Federal Practice ¶ 54.36 (2d ed. 1953), and the order is thus appealable.

In the initial complaint in this action, Dr. and Mrs. Vitenas asserted a cause of action in negligence against their family physician, Hotel Dieu (a hospital), Hotel Dieu's pathologist, and their respective insurance carriers. The complaint alleged that, while Mrs. Vitenas was a patient at Hotel Dieu, she was given a transfusion of the wrong type blood which caused a cessation of the normal kidney functions as well as other damage. She was subsequently moved from Hotel Dieu to Charity Hospital where she was treated at the experimental "kidney station" there maintained by the University. Some three weeks after arriving at Charity, a doctor, who was simultaneously acting as Mrs. Vitenas' principal treating physician, as a resident internist at Charity and as a salaried member of the University's "kidney station" staff, administered an antibiotic drug which, appellant alleges, was the cause of the injuries of which Mrs. Vitenas complains.

The third-party complaint of the insurer of the pathologist at the Hotel Dieu sought judgment over against the University, Charity Hospital, the doctor and his insurers for any sums for which appellant as defendant might be adjudged to be liable and in the alternative that there be judgment over against said third-party defendants, adjudging them liable, in solido, along with appellant for any sums adjudged against appellant in favor of plaintiffs.

The district court, on the basis of the pleadings, Dr. Vitenas' deposition, memoranda of law and oral argument, granted the University's "motion to dismiss and motion for summary judgment" on the ground that a tort action cannot be brought against the University without specific authority from the Louisiana Legislature.

It has long been the law that a state is constitutionally immune from actions brought in federal courts by its own citizens or by citizens of other states. U.S.Const. Amend. XI; see Hans v. Louisiana, 134 U.S. 1, 16, 17, 10 S. Ct. 504, 33 L. Ed. 842 (1889). "But the immunity may of course be waived; the State's freedom from suit without its consent does not protect it from a suit to which it has consented." Parden v. Terminal Ry., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 1207 (1964); see Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 53-54, 67 S. Ct. 873, 88 L. Ed. 1121 (1944). A waiver is not lightly inferred, however, and consent to suit in state courts does not constitute consent to be sued in a federal court. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 465, 65 S. Ct. 347, 89 L. Ed. 389 (1945).

Louisiana rigidly adheres to the principle of governmental immunity and, as a general proposition, has not consented to be sued. It has, moreover, specifically extended immunity to some of its "special agencies" of which the Board of Supervisors of the University is one. La.Const. Art. XIX, § 26, L.S.A.;¹  see Board of Supervisors v. Ludley, 252 F.2d 372 (5th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 31, 3 L. Ed. 2d 61 (1958). Nonetheless, there are two rather broad exceptions to this general cloak of immunity. One exception encompasses suit by dint of special legislative enactment, La.Const. Art. III, § 35, but there has been no such enactment here.²  Appellant contends that the third-party claim falls within the other exception which permits actions for the enforcement, or for breach, of contracts entered into by a "special agency" of the State. Both the initial complaint and the third-party petition are couched in terms of negligence. Furthermore, in Louisiana, it is now settled law that actions for medical malpractice sound in tort. Kozan v. Comstock, 270 F.2d 839 (5th Cir., 1959); Phelps v. Donaldson, 142 So. 2d 585 (LaApp.3d 1962), aff'd, 243 La. 1118, 150 So. 2d 35.

Failing to come within any of the legislative exceptions to immunity, appellant seeks to establish a waiver by suggesting that governmental immunity does not attach where the cause of action arises out of a proprietary rather than a governmental function. Assuming that this doctrine will overcome the bar of the Eleventh Amendment, appellant argues that whether or not the University, through its doctor agent, was engaged in a governmental activity is a factual question and, therefore, summary judgment was improvidently granted. However, even if we assume, without deciding, that the governmental-proprietary exception will do service where the state is a defendant in a federal court, appellant has not met the burden of showing that Louisiana courts, if faced with a similar problem, would hold that the State was subject to suit.³  Above all else, it is clear that a waiver of the Eleventh Amendment's immunity "will not be lightly inferred." See Petty v. Tennessee-Missouri Bridge Comm'n, supra, 359 U.S. at 276, 79 S. Ct. at 785. Appellant has fallen well short of the mark.

Our affirmance of the district court's order determines only that the district court is not the proper forum for this third-party complaint. It is without prejudice to appellant's right to pursue any remedies he may have in the Louisiana state courts.

Affirmed.