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Los Fresnos Consolidated2/17/2005
Appellant, Los Fresnos Consolidated Independent School District ("the School District"), brings this interlocutory appeal of the trial court's denial of its plea to the jurisdiction in a case arising from injuries sustained by April Clark and Veronica Contreras when a school bus driven by Raquel Fortuna, an employee of the School District, rolled off the road. The School District complains that the trial court erred in denying its plea to the jurisdiction because its immunity from suit as a governmental entity has not been waived. We conclude the School District is not immune and affirm the trial court's order denying its plea to the jurisdiction.
INTRODUCTION
In this case, we are asked to determine the relationship between three provisions of the Texas Civil Practice and Remedies Code. In four issues, the School District claims that it has not waived immunity under the Texas Tort Claims Act ("TTCA") because (1) appellees failed to plead facts sufficient to trigger the School District's waiver of immunity under section 101.021; (2) the School District is entitled to rely on the official-immunity defense available to Fortuna; (3) the School District's liability cannot exceed that of Fortuna as set by section 108.002; and (4) the School District's limitation of liability applies regardless of whether Fortuna is a party to the suit.
BACKGROUND
On August 27, 2001, April Clark and Veronica Contreras were riding as passengers in a school bus owned by the School District. According to appellees' petition, the school bus was traveling east on FM 510 when it veered off the road and rolled onto its right side in a plowed field. Appellees contend that at the time of the accident, the bus was being driven by Raquel Fortuna in the course and scope of her employment with the School District. Appellees allege Fortuna was negligent in the manner in which she operated the school bus and negligent per se in violating various provisions of the Texas Transportation Code. Appellees sued Fortuna and the School District seeking damages for the alleged physical injuries sustained by Clark and Contreras, as well as medical expenses incurred by Shelly Southworth and Isabel Gutierrez.
Fortuna was covered by liability or errors and omissions insurance provided by the School District. The insurance carrier resolved nearly all the claims against Fortuna asserted by other claimants involved in the accident; however, it did not settle the claims of appellees. As of November 2003, the insurer had paid various claimants, collectively, an amount in excess of $100,000 for damages allegedly caused by Fortuna's conduct.
The School District filed a plea to the jurisdiction arguing it was immune from appellees' claims because Fortuna enjoyed immunity for any amount in excess of the statutory cap of $100,000 set by Section 108.002 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 108.002 (Vernon Supp. 2004-05). Appellees responded to the School District's jurisdictional plea and simultaneously moved to non-suit Fortuna. The trial court granted the non-suit and denied the plea to the jurisdiction. Appellant then filed an interlocutory appeal with this Court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2004-05).
JURISDICTION
We have jurisdiction to hear an interlocutory appeal of an order granting or denying a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2004-05). It is undisputed that the School District is such a governmental unit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon Supp. 2004-05).
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