Troublesome Contract Clauses College of Liberal Arts John O. Cates University of Alabama in Huntsville August 15, 2011

The wall of ‘governmental immunity’ is almost invincible … Sovereign immunity That the State of Alabama shall never be made a defendant in any court of law or equity. Const. of Alabama, Article I, § 14. Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). 1. Suits against the State. “In Hutchinson, supra, this Court addressed whether the State, acting in its proprietary function, was entitled nonetheless to assert its immunity. Answering in the affirmative, the Court spoke as follows: “The wall of ‘governmental immunity’ is almost invincible, made so by the people through their Constitution as interpreted by this Court. Our cases are clear that the operation of a hospital is a ‘governmental function,’ but even if we should classify the operation of University Hospital as being a ‘business function,’ nevertheless, the State could not be sued.” 288 Ala. at 24, 256 So.2d at 284.” This has been strengthened by holding that sovereign immunity deprives a court of subject matter jurisdiction. Alabama Dept. of Corrections v. Montgomery County Comm., 2008 Ala. LEXIS 259 (Ala. Dec. 12, 2008) The wall of ‘governmental immunity’ is almost invincible … Andrew Sorenson was President, several doctors were sued. Bladder infection, low back medication, infection low back physical therapy

Sovereign Immunity – Continuing Cranman Suits against ‘state agents.’ “We therefore restate the rule governing State-agent immunity: A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's (1) formulating plans, policies, or designs; or (2) exercising his or her judgment in the administration of a department or agency of government, … (5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in … educating students.”

Sovereign Immunity Continuing Cranman “Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Sovereign Immunity Tort Claims – ex parte Cranman Contract Claims – Against the College or University Alabama State Board of Adjustment Against College or University officials If authorized to sign, Board of Adjustment If not properly authorized to sign Up to the governing body

Choice of law This Agreement shall be construed for all purposes in accordance with the laws of the state of California, excluding its conflict of laws rules. Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). Held that California does not have to recognize the sovereign immunity of a University of Nevada employee.

Venue This Agreement shall be interpreted and enforced in accordance with the laws of New York and each party hereby submits irrevocably to the jurisdiction of the courts located in New York. Venue could have a big impact on legal expenses.

indemnification 17. INDEMNITY  University agrees to indemnify, hold harmless and defend Company, its officers, employees and representatives, from and against any loss, cost, expense or liability, including reasonable attorneys' fees, arising by reason of any claim, loss, cost, expense, liability, damage or cause of action whatsoever, ... including any claim based upon alleged infringement ... De Facto waiver of sovereign immunity “To the extent allowable by the law of the State of Alabama, ...”

arbitration An Award is a judicial enforcement of an arbitrator’s decision. Waiver of sovereign immunity.