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24-10-104. Waiver of sovereign immunity.

Text

Notwithstanding any provision of law to the contrary, the governing body of a public entity, by resolution, may waive the immunity granted in section 24-10-106 for the types of injuries described in the resolution. Any such waiver may be withdrawn by the governing body by resolution. A resolution adopted pursuant to this section shall apply only to injuries occurring subsequent to the adoption of such resolution.

History

History.
Source: L. 71: P. 1205, 1.C.R.S. 1963: 130-11-4. L. 86: Entire section R&RE, p. 875, 3, effective July 1.

Annotations

Cross references:

For authorization to procure insurance against liability, see 24-10-115 and 24-14-102.

ANNOTATION

No waiver of eleventh amendment immunity. A states waiver of its immunity against suit in its own courts does not constitute a waiver of its eleventh amendment immunity against suit in federal court. Verner v. Colo., 533 F. Supp. 1109 (D. Colo. 1982), affd, 716 F.2d 1352 (10th Cir. 1983), cert. denied, 466 U.S. 960, 104 S. Ct. 2175, 80 L. Ed. 2d 558 (1984); Griess v. Colo., 624 F. Supp. 450 (D. Colo. 1985), affd, 841 F.2d 1042 (10th Cir. 1988).

The type of resolution contemplated by this section is a formal legislative action approved by a majority of the governing body. Pierson v. Black Canyon Aggregates, Inc., 32 P.3d 567 (Colo. App. 2000), revd on other grounds, 48 P.3d 1215 (Colo. 2002).

Quasi-judicial immunity not waived. Quasi-judicial immunity of parole board and state were not waived by states purchase of insurance under statute concerning waiver or nonwaiver of sovereign immunity. State v. Mason, 724 P.2d 1289 (Colo. 1986) (decided under law in effect prior to 1986 repeal and reenactment).

Since the grant of immunity to public entities must be strictly construed, the waiver of that immunity may not be so construed. Kittinger v. City of Colo. Springs, 872 P.2d 1265 (Colo. App. 1993).

Exceptions to waivers of immunity are to be construed narrowly but the waiver provisions themselves are to be construed deferentially in favor of injured persons. Quintana v. City of Westminster, 56 P.3d 1193 (Colo. App. 2002).

Public entity is to be treated like a private entity and may not assert the honest and reasonable mistake defense in a negligence action since the board had obtained insurance to cover its liability and therefore had waived the defense of sovereign immunity. Moreland v. Bd. of County Commrs, 725 P.2d 1 (Colo. App. 1985), revd on other grounds, 764 P.2d 812 (Colo. 1988) (decided under law in effect prior to 1986 repeal and reenactment).

Express waiver of immunity bars defense. In claim against police officers and city, city waived immunity by confessing liability if arrestee prevailed on assault and battery claim against the police, regardless of finding of negligence against city, and by stating as affirmative defense that arrestees recovery was limited by Governmental Immunity Act, even though city incorrectly believed that its self-insurance affected its immunity. Valdez v. City & County of Denver, 764 P.2d 393 (Colo. App. 1988) (decided under law in effect prior to 1986 repeal and reenactment).

State held to have waived sovereign immunity by having insurance policy while Denver department of social services held not to have waived sovereign immunity through self-insurance. Corbin by Corbin v. City & County of Denver, 735 P.2d 214 (Colo. App. 1987) (decided prior to 1986 repeal and reenactment).

When a public entity claims before trial that timely notice was not given to it under the Governmental Immunity Act, the issue must be determined by the court before trial. Capra v. Tucker, 857 P.2d 1346 (Colo. App. 1993).

Claim that lawfully seized vehicle was unlawfully retained, could lie in tort and therefore failure to give required notice pursuant to the Governmental Immunity Act required that the action be dismissed. Denver v. Desert Truck Sales, Inc. 837 P.2d 759 (Colo. 1992).

Waiver of sovereign immunity by virtue of liability insurance coverage does not extend to requirement of notice under 24-10-109. The notice provision is a condition precedent to the commencement of a negligence action against the city, and no provision in the governmental immunity act alters the requirement of notice where the entity carries liability insurance. Morrison v. City of Aurora, 745 P.2d 1042 (Colo. App. 1987) (decided under law in effect prior to 1986 repeal and reenactment).

Purpose of 1986 amendment to this section was to eliminate the provision that the procurement of liability insurance by a public entity effected a waiver of immunity. Pierson v. Black Canyon Aggregates, Inc., 32 P.3d 567 (Colo. App. 2000), revd on other grounds, 48 P.3d 1215 (Colo. 2002).