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PRESENT: All the Justices 

DEON ERIC COUPLIN 

 OPINION BY 

v. Record No. 041985 JUSTICE G. STEVEN AGEE 

 June 9, 2005 

AUBREY GILL PAYNE, JR. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 Deon Eric Couplin, the plaintiff in a personal injury 

action arising from a collision between his vehicle and a 

Metropolitan Washington Airport Authority ("MWAA") ambulance 

driven by the defendant, Aubrey Gill Payne, Jr., appeals from 

the judgment of the trial court holding that Code § 5.1-173(B) 

afforded Payne immunity from his alleged gross negligence 

causing the accident. The issue before us is whether Code 

§ 5.1-173(B) accords employees of the MWAA immunity from tort 

claims of gross negligence while engaged in the performance of a 

governmental function. We conclude that the statute does not 

accord immunity to MWAA employees in such circumstances and 

therefore we will reverse the judgment of the trial court. 

I. BACKGROUND AND PROCEEDINGS BELOW 

 On August 16, 2000, Payne, an MWAA employee, was operating 

an MWAA ambulance when he received a radio dispatch to respond 

to an accident in the eastbound lanes of the Dulles Access Road 

in Fairfax County, Virginia. In response to the radio dispatch, 

Payne entered the westbound Dulles Access Road from an on-ramp 
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and attempted to cross the westbound lanes of traffic to a 

median crossover to reach the accident site in the eastbound 

lanes. In the course of traversing the westbound lanes, Payne's 

MWAA ambulance struck Couplin’s vehicle which was traveling in 

the far left westbound lane, causing Couplin to lose control of 

his vehicle and "run off" the highway. As a result of the 

accident, Couplin alleged he sustained severe injuries. 

 Couplin timely filed a motion for judgment against the MWAA 

and Payne1

 in the Circuit Court of Fairfax County alleging gross 

negligence in the operation of the ambulance which caused the 

accident and Couplin’s injuries. In response, the MWAA and 

Payne filed a joint plea in bar interposing the statutory grant 

of immunity under Code § 5.1-173(B). 

 At the plea in bar hearing in the trial court, Couplin 

conceded, as he does on appeal, that the MWAA is immune from 

suit under Code § 5.1-173(B) because under the circumstances of 

this case, the operation of the ambulance was in the performance 

of a governmental function. After argument and briefing by 

counsel, the trial court sustained the plea in bar as to Payne. 

The trial court opined that the statute barred a claim against a 

 1

 Dollar Thrifty Automotive Group, Inc. and State Farm 

Mutual Insurance Co. had uninsured motorist exposure in the 

original suit and were named as defendants. The instant 

proceedings have no effect on their status as defendants in this 

case. 
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MWAA employee for any tort committed in the course of performing 

a governmental function, including those involving grossly 

negligent conduct. By order of May 27, 2004, incorporating its 

bench ruling, the trial court dismissed Couplin’s claim against 

Payne and the MWAA with prejudice. We awarded Couplin this 

appeal. 

II. ANALYSIS 

 The General Assembly established the MWAA in 2001 to 

acquire, operate and protect Ronald Reagan Washington National 

Airport and Washington Dulles International Airport and related 

facilities.2

 Code § 5.1-154; Acts 2001, ch. 342. The MWAA 

performs many governmental functions in the discharge of its 

delegated powers, including the operation of emergency public 

services such as the ambulance service for which Payne was 

operating a vehicle at the time of the accident. Code § 5.1-

156. In establishing the MWAA, the General Assembly 

specifically set forth the scope of tort liability of the MWAA 

in Code § 5.1-173(B), which provides as follows: 

B. The Authority shall be liable for its contracts 

and for its torts and those of its members, officers, 

employees, and agents committed in the conduct of any 

proprietary function, in accordance with the law of 

the Commonwealth of Virginia but shall not be liable 

for any torts occurring in the performance of a 

governmental function. The exclusive remedy for such 

 2

 The MWAA was created in conjunction with the District of 

Columbia. Code § 5.1-152, et seq. 
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breach of contracts and torts for which the Authority 

shall be liable, as herein provided, shall be by suit 

against the Authority. Nothing in this act shall be 

construed as a waiver by the Commonwealth of Virginia 

or the District of Columbia or of their political 

subdivisions of any immunity from suit. 

The first two sentences of subsection B make it clear that 

the MWAA is directly and solely liable for the torts of its 

employees “committed in the conduct of any proprietary 

function.” Couplin concedes that Payne’s operation of the MWAA 

ambulance was in the performance of a governmental function and 

thus he cannot maintain a cause of action against the MWAA or 

Payne on the basis that the accident was in the conduct of a 

proprietary function. 

The last clause of the first sentence of subsection B 

clearly provides that the MWAA “shall not be liable for any 

torts occurring in the performance of a governmental function.” 

Couplin concedes this provision bars any claim by him against 

the MWAA for liability as a result of the accident. 

 Unlike the specific provisions of the first sentence of 

subsection B that assign liability to the MWAA for its 

employees’ torts “committed in the conduct of any proprietary 

function,” there is no corresponding language regarding torts 

committed by MWAA employees while engaged in the performance of 

a governmental function. The MWAA argued to the trial court, 

and argues on appeal, that the statute should be read to also 
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bar claims against MWAA employees for torts committed during 

performance of a governmental function.3

 The MWAA contends that the phrase “shall not be liable for 

any torts,” in Code § 5.1-173(B), is intended to mean torts 

committed either during a proprietary or governmental function. 

Further, the MWAA argues that when this clause is read with the 

second sentence of subsection B, “the exclusive remedy for such 

. . . torts . . . shall be by suit against the Authority,” the 

statute intends to bar any tort cause of action directly against 

an MWAA employee. To read this language otherwise, the MWAA 

argues, would defeat the purpose of the statute because “[t]he 

statutory grant of immunity would be toothless under the 

plaintiff’s argument that the employee was not immune[] because 

the authority would be indirectly liable for the employee's 

torts.” 

 In response, Couplin argues that the statute means what it 

says and no more. He contends that since the statute does not 

provide any limit on an employee's liability in the performance 

 3

 While not cited by either party on the present appeal, in 

Washington Metro. Area Transit Auth. v. Briggs, 255 Va. 309, 497 

S.E.2d 139 (1998), the Court considered Section 80 of the 

Washington Metropolitan Area Transit Regulation Compact, 

codified in Code §§ 56-529 and -530, which contains the same 

operative language as Code § 5.1-173(B). The provisions were 

described as waiving the Authority's sovereign immunity for 

torts committed by its employees "in the conduct of any 

proprietary function," but the issue argued on the present 

appeal was not there presented. 
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of a governmental function, then the common law tort liability 

of governmental employees would govern any cause of action 

against Payne. 

 The trial court agreed with the MWAA, noting “[i]t’s 

absolutely not clear and all we can do is look to the language 

of the statute.” The trial court then concluded that the 

statutory immunity of Code § 5.1-173(B) implicitly shielded 

Payne from liability in performing a governmental function: 

I think it doesn’t make any sense to have the 

authority enjoy immunity and the employee not . . . . 

. . . . 

The language of the section does not include any 

language specifically stating that the employees enjoy 

the same exemption, that is the same immunity, but it 

does provide that the authority is responsible for the 

torts of its employees. Thus, even though the 

authority may not be sued directly, if it is 

responsible for the torts of its employees and if its 

employees may be sued, then the authority is 

indirectly responsible. 

We agree with Couplin’s analysis of the statute and 

thus find the trial court erred in sustaining Payne’s plea 

in bar. 

Under the basic principles of statutory construction, 

we must determine the General Assembly’s intent from 

the words contained in a statute. When the language 

of a statute is unambiguous, we are bound by the plain 

meaning of that language and may not assign the words 

a construction that amounts to holding that the 

General Assembly did not mean what it actually stated. 
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Commonwealth v. Diaz, 266 Va. 260, 264-65, 585 S.E.2d 552, 554 

(2003) (citations omitted). 

Subsection B of Code § 5.1-173 clearly subjects the MWAA to 

liability for the torts of its employees committed during the 

performance of a proprietary act and provides that such an 

action against the MWAA is the exclusive remedy for an 

employee's proprietary torts. It is just as clear that torts 

committed in a proprietary function are the only torts “for 

which [MWAA] shall be liable.” The plain language of the 

statute thus belies the MWAA’s argument that the exclusive 

remedy provision applies to torts committed in a governmental 

function because those are not torts “for which the Authority 

shall be liable.” 

The plain language of the statute similarly negates the 

MWAA’s argument that the “any torts” language of the first 

sentence of subsection B relieves MWAA employees of their 

liability for governmental function torts. To the contrary, 

immunity applies under the statute’s clear terms only to “The 

Authority” (the MWAA) when a tort is committed during the 

performance of a governmental function. 

 Without question, the General Assembly knows how to grant 

immunity to MWAA employees, as it clearly did in the second 

sentence of subsection B, for torts committed in the conduct of 

a proprietary function. There is simply no such statutory 
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immunity written in the statute for MWAA employee torts 

committed during the performance of a governmental function. 

This is a significant statutory expression because “the mention 

of . . . specific item[s] in a statute implies that other 

omitted items were not intended to be included within the scope 

of the statute.” Smith Mountain Lake Yacht Club v. Ramaker, 261 

Va. 240, 246, 542 S.E.2d 392, 395 (2001). Under the principle 

of expressio unius est exclusio alterius, we must conclude the 

General Assembly intentionally excluded a grant of statutory 

immunity to MWAA employees for torts committed during a 

governmental function. 

 Moreover, the codification of immunity in Code § 5.1-173(B) 

is in derogation of the common law. In such a circumstance, 

only those parts of the common law directly altered by the 

statute are deemed to be changed. As we have previously 

explained: 

The common law will not be considered as altered or 

changed by statute unless the legislative intent is 

plainly manifested. A statutory change in the common 

law is limited to that which is expressly stated or 

necessarily implied because the presumption is that no 

change was intended. When an enactment does not 

encompass the entire subject covered by the common 

law, it abrogates the common-law rule only to the 

extent that its terms are directly and irreconcilably 

opposed to the rule. 

Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 

(1988) (citations omitted). 
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There is no legislative intent “expressly stated or 

necessarily implied” in Code § 5.1-173(B) according statutory 

immunity to MWAA employees for torts committed while performing 

a governmental function. Accordingly, the common law rule of 

liability for gross negligence on the part of a governmental 

employee remains unaltered by the enactment of Code § 5.1-

173(B). As we expressed on prior occasions: 

In Virginia, a government agent entitled to the 

protection of sovereign immunity is not immunized from 

suit. Rather, the degree of negligence which must be 

shown to impose liability is elevated from simple to 

gross negligence. 

Colby v. Boyden, 241 Va. 125, 128, 400 S.E.2d 184, 186 (1991) 

(citation omitted). See also Friday-Spivey v. Collier, 268 Va. 

384, 601 S.E.2d 591 (2004).4

 

Notwithstanding the foregoing, the MWAA contends the 

statute should be read to create immunity for claims against 

MWAA employees because the MWAA may have indirect liability for 

a claim such as Couplin’s. This argument is unpersuasive. 

Nothing in the record establishes that the MWAA has any 

liability to Payne should Couplin obtain a judgment against him. 

Even if the MWAA had some contractual or other indemnity 

obligation to Payne, it would not bear on the application of the 

 4

 The application of sovereign immunity for a governmental 

employee where gross negligence is not alleged, is controlled by 

the principles enunciated in James v. Jane, 221 Va. 43, 282 
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statutory provision because we are bound by the plain meaning of 

the statute, which affords no immunity in this case. 

We presume that the legislature chose, with care, the 

words it used when it enacted the statute. Courts 

cannot add language to the statute the General 

Assembly has not seen fit to include. Nor are they 

permitted to accomplish the same result by judicial 

interpretation. Where the General Assembly has 

expressed its intent in clear and unequivocal terms, 

it is not the province of the judiciary to add words 

to the statute or alter its plain meaning. 

Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 

901, 906 (2005) (citations and internal quotation marks 

omitted). 

III. CONCLUSION 

Code § 5.1-173(B) provides no statutory immunity to Payne 

as an MWAA employee for a tort committed in the performance of a 

governmental function for the MWAA. Accordingly, the trial 

court’s judgment sustaining Payne’s plea in bar was in error. 

We will, therefore, reverse the judgment of the trial court and 

remand the case for further proceedings in accordance with this 

opinion.5

 

 

S.E.2d 864 (1980) and Messina v. Burden, 228 Va. 301, 321 S.E.2d 

657 (1984). 

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 Payne asserted on brief that this court should affirm the 

trial court’s judgment, even if we find Code § 5.1-173(B) does 

not accord him immunity, because Payne’s alleged conduct does 

not constitute gross negligence. However, Payne specifically 

advised the trial court that “we don’t need to get into the 

gross negligence issue” if the trial court agreed with his 

argument under Code § 5.1-173(B). Accordingly, we do not 

consider Payne’s argument. Rule 5:17(c). Payne may, however, 
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Reversed and remanded. 

 

raise this argument on remand. See Baumann v. Capozio, 269 Va. 

356, 361, 611 S.E.2d 597, 600 (2005).