PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Carrico, S.J. 

THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA 

 OPINION BY 

v. RECORD NO. 030258 JUSTICE G. STEVEN AGEE 

 January 16, 2004 

TINA MARIE CARTER 

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Edward L. Hogshire, Judge 

 The Rector and Visitors of the University of Virginia 

("UVA") appeal an interlocutory order of the Circuit Court of 

the City of Charlottesville pursuant to Code § 8.01-670.1. On 

appeal, UVA argues that the Virginia Tort Claims Act (Code 

§§ 8.01-195.1 through –195.9) provides for limited waiver of the 

sovereign immunity of the Commonwealth but leaves intact the 

sovereign immunity of the Commonwealth's agencies. 

I. BACKGROUND AND PROCEEDINGS BELOW 

 This case arises from a medical malpractice action brought 

by Tina Marie Carter ("Carter") alleging negligence in the 

insertion of an epidural catheter. Carter timely filed a motion 

for judgment against the University of Virginia Health System 

("UVHS"), and a resident physician. The resident physician 

filed a plea of sovereign immunity and was dismissed as a party. 

UVHS then moved for summary judgment asserting it is not capable 

of being sued because it is not a legal entity. In response, 

Carter moved to amend her motion for judgment to substitute UVA 
as the sole defendant in place of UVHS. The trial court granted 

Carter's motion to amend. The Commonwealth is not named as a 

party defendant in Carter's pleadings. 

 UVA filed a plea of sovereign immunity, which the trial 

court denied by order dated October 26, 2001. With Carter's 

consent, UVA moved the trial court to certify an interlocutory 

appeal from that order pursuant to Virginia Code § 8.01-670.1. 

The trial court entered the order of certification dated January 

29, 2003. We granted UVA this appeal. 

II. ANALYSIS 

 The Virginia Tort Claims Act (the "Act"), provides that: 

the Commonwealth shall be liable for claims for money 

. . . on account of . . . personal injury or death 

caused by the negligent or wrongful act or omission of 

any employee while acting within the scope of his 

employment under circumstances where the Commonwealth 

. . ., if a private person, would be liable to the 

claimant for such . . . injury or death. 

Code § 8.01-195.3 (emphasis added). UVA argues that the Act 

provides an express, limited waiver only of the Commonwealth's 

sovereign immunity but does not disturb the sovereign immunity 

of the Commonwealth's agencies. We agree. 

 Absent an express statutory or constitutional provision 

waiving sovereign immunity, the Commonwealth and its agencies 

are immune from liability for the tortious acts or omissions of 

their agents and employees. Patten v. Commonwealth, 262 Va. 

654, 658, 553 S.E.2d 517, 519 (2001); Baumgardner v. 

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Southwestern Va. Mental Health Inst., 247 Va. 486, 489, 442 

S.E.2d 400, 401 (1994). "In 1981, the General Assembly stated 

in the Act an express, limited waiver of the Commonwealth's 

immunity from tort claims." Patten, 262 Va. at 658, 553 S.E.2d 

at 519; see also Baumgardner, 247 Va. at 489, 442 S.E.2d at 402. 

The limited waiver provided for in the Act will be strictly 

construed because the Act is a statute in derogation of the 

common law. Patten, 262 Va. at 658, 553 S.E.2d at 519; 

Baumgardner, 247 Va. 486, 489, 442 S.E.2d at 402. 

 Under the plain language of the Act, the Commonwealth (and 

certain "transportation districts" not here relevant) are the 

only entities for which sovereign immunity is waived. See Code 

§ 8.01-195.3 (stating that "the Commonwealth shall be liable for 

claims for money"). The Act contains no express provision 

waiving sovereign immunity for agencies of the Commonwealth, 

which we have stated repeatedly is a mandatory requirement 

before waiver occurs. Id. As an agency of the Commonwealth, 

UVA is entitled to sovereign immunity under the common law 

absent an express constitutional or statutory provision to the 

contrary. There is no such waiver in the Act or elsewhere. See

James v. Jane, 221 Va. 43, 51, 282 S.E.2d 864, 868 (1980) 

(noting that UVA is entitled to the sovereign immunity granted 

to the Commonwealth under the common law). 

3
 Carter argues that Code § 8.01-195.4, which states that 

"the Commonwealth shall be a proper party defendant" in all 

actions brought against the Commonwealth under the Act, implies 

that the Commonwealth is not a necessary party to litigation 

under the Act. Because of the strict construction accorded to 

statutes in derogation of the common law and the lack of an 

express provision limiting the immunity of the Commonwealth's 

agencies, we decline to adopt this view. The Act's waiver of 

the Commonwealth's immunity would make the Commonwealth both a 

proper party, and given UVA's immunity, a necessary party to a 

claim by Carter. 

 Carter points out that Code § 8.01-195.6 requires 

plaintiffs bringing suit under the VTCA to file a written 

statement "which includes the time and place at which the injury 

is alleged to have occurred and the agency or agencies alleged 

to be liable." The fact that the statute refers to "the agency 

or agencies alleged to be liable," serves as proof, Carter 

argues, that the sovereign immunity of those entities has been 

waived. However, this language does not expressly waive 

agencies' sovereign immunity or even mention the concept. 

Moreover, as Carter admits, Code § 8.01-195.6 is simply a notice 

requirement apprising the Attorney General or the Director of 

the Division of Risk Management of the essential facts of the 

claim. 

4
 Finally, Carter asserts that "[i]t is axiomatic that the 

'Commonwealth' can act, and thus can commit torts, only through 

its agencies and employees." The reality, of course, is that 

"agencies" are nothing more than administrative divisions of the 

Commonwealth and do not, in and of themselves, act. Ultimately, 

only an agency's employees can commit torts. Yet, since 

enactment of the VTCA, we have held on multiple occasions that 

employees of the Commonwealth are entitled to sovereign 

immunity. See e.g., Lohr v. Larsen, 246 Va. 81, 88, 431 S.E.2d 

642, 646 (1993); Gargiulo v. Ohar, 239 Va. 209, 215, 387 S.E.2d 

787, 791 (1990); Lentz v. Morris, 236 Va. 78, 83, 372 S.E.2d 

608, 611 (1988). The VTCA waives the sovereign immunity of the 

Commonwealth only. 

 If the General Assembly desired in the Act to waive the 

sovereign immunity of the Commonwealth's agencies in addition to 

the immunity of the Commonwealth, it could have easily done so. 

It did not. Given the Act's lack of an express waiver of the 

common law sovereign immunity afforded the Commonwealth's 

agencies, UVA retains its sovereign immunity from the claim 

brought by Carter. Accordingly, the trial court was in error 

when it failed to grant UVA's plea of sovereign immunity in its 

October 26, 2001 order. 

III. CONCLUSION 

5
 For the reasons stated above, we will reverse the trial 

court's order denying UVA's plea of sovereign immunity. The 

case will be remanded for entry of an order sustaining the 

defendant's plea of sovereign immunity and dismissing the case. 

Reversed and remanded.

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