Opinion
No. COA15-1403
06-07-2016
CHARLIE PRYOR and wife RITA PRYOR, Plaintiffs, v. CITY OF RALEIGH, COUNTY OF WAKE, ANDREW FETTES, individually and his official capacity as an employee of Wake County, JESUS RIOS, individually and his official capacity as an employee of the City of Raleigh, Defendants.
George Ligon, Jr. for plaintiff-appellants. City Attorney Thomas A. McCormick, by Deputy City Attorney Hunt K. Choi, for defendant-appellees City of Raleigh and Jesus Rios. Office of the Wake County Attorney, by County Attorney Scott Warren and Senior Assistant County Attorney Allison Pope Cooper, for defendant-appellees Wake County and Andrew Fettes.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Wake County, No. 15 CVS 002882 Appeal by plaintiffs from order entered 24 August 2015 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 11 May 2016. George Ligon, Jr. for plaintiff-appellants. City Attorney Thomas A. McCormick, by Deputy City Attorney Hunt K. Choi, for defendant-appellees City of Raleigh and Jesus Rios. Office of the Wake County Attorney, by County Attorney Scott Warren and Senior Assistant County Attorney Allison Pope Cooper, for defendant-appellees Wake County and Andrew Fettes. TYSON, Judge.
Charlie and Rita Pryor ("Plaintiffs") appeal from order granting summary judgment in favor of Wake County, Andrew Fettes, in his individual and official capacities, City of Raleigh, and Jesus Rios, in his individual and official capacities (collectively, "Defendants"). We affirm.
I. Factual Background
Around 3:20 a.m. on 24 April 2010, defendant Andrew Fettes ("Fettes") was driving an ambulance owned by defendant Wake County on Creech Road, near its intersection with Slippery Elm Drive, in Raleigh, North Carolina. Defendant Jesus Rios ("Rios") was driving a Raleigh Police Department vehicle owned by defendant City of Raleigh on Slippery Elm Drive. Fettes' and Rios' vehicles collided, and crashed into Plaintiffs' real property, located at 2800 Slippery Elm Drive, causing damage to Plaintiffs' real property. Plaintiffs were inside their residence at the time, and the impact from the collision caused plaintiff Charlie Pryor to fall and injure himself.
Plaintiffs originally filed a complaint on 14 May 2013, but subsequently filed a voluntary dismissal without prejudice on 5 March 2014. The trial court entered an order extending the time for Plaintiffs to re-file their complaint. On 24 March 2015, Plaintiffs timely re-filed their complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 41, and alleged claims for gross negligence and trespass to real property against Fettes and Rios, in both their individual and official capacities.
Defendants Wake County and Fettes filed a motion for summary judgment on 27 April 2015. On 29 July 2015, defendants City of Raleigh and Rios filed a motion for summary judgment asserting the defenses of governmental immunity and public official immunity barred Plaintiffs' claims against Defendants.
On 24 August 2015, the trial court entered an order allowing all Defendants' motions for summary judgment. Plaintiffs timely filed notice of appeal to this Court.
II. Issue
Plaintiffs argue the trial court erred by allowing Defendants' motions for summary judgment. They assert Defendants waived the affirmative defense of governmental immunity through the purchase of a self-insured retention liability insurance policy for coverage of claims in excess of $1,000,000.00. Plaintiffs contend summary judgment was improper because the trial court could not determine no genuine issue of material facts exists, as a matter of law, that Plaintiffs' damages did not exceed $1,000,000.00.
III. Standard of Review
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015). "'The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.'" Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 447, 579 S.E.2d 505, 507 (2003) (quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)).
A defendant may show entitlement to summary judgment by "(1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense." James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979).Draughon v. Harnett Cnty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003), aff'd per curiam, 358 N.C. 13, 591 S.E.2d 521 (2004).
"'Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.'" Pacheco, 157 N.C. App. at 445, 579 S.E.2d 505 (quoting Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000)). "'To hold otherwise . . . would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.'" Id. at 157 N.C. App. 445, 579 S.E.2d 505 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992)).
This Court reviews a trial court's summary judgment order de novo. Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).
IV. Analysis
Under governmental immunity, a county or municipal corporation "'is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity.'" Evans ex rel. Horton v. Hous. Auth., 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004) (quoting Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997)). It is well established:
"[W]here a city or town is exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence.Moffitt v. City of Asheville, 103 N.C. 237, 254-55, 9 S.E. at 695, 697 (1889).
"A governmental entity may waive immunity by the purchase of liability insurance, thereby subjecting itself to liability for the tortious acts of its officers and employees." Mellon v. Prosser, 126 N.C. App. 620, 622, 486 S.E.2d 439, 441 (1997), rev'd in part on other grounds, 347 N.C. 568, 494 S.E.2d 763 (1998). However, "immunity is waived only to the extent that the municipality is indemnified by the insurance contract from liability for acts alleged." Arrington v. Martinez, 215 N.C. App. 252, 258, 716 S.E.2d 410, 414 (2011) (citations omitted).
A governmental entity does not waive sovereign immunity if the action brought against them is excluded from coverage under their insurance policy. Further, waiver of
sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.Patrick v. Wake Cnty. Dep't of Human Servs., 188 N.C. App. 592, 596, 655 S.E.2d 920, 923 (2008) (citations and internal quotation marks omitted) (holding defendants did not waive sovereign immunity through the purchase of liability insurance policy and properly asserted sovereign immunity as an affirmative defense in their answer to plaintiff's complaint).
In Estate of Earley v. Haywood Cnty. Dep't of Soc. Servs., 204 N.C. App. 338, 343, 694 S.E.2d 405, 409-10 (2010), this Court recognized
the arguably circular nature of the logic employed in Patrick. The facts are that the legislature explicitly provided that governmental immunity is waived to the extent of insurance coverage, but the subject insurance contract eliminates any potential waiver by excluding from coverage claims that would be barred by sovereign immunity. Thus, the logic in Patrick boils down to: Defendant retains immunity because the policy doesn't [sic] cover [its] actions and the policy doesn't [sic] cover [its] actions because [it] explicitly retains immunity. Nonetheless in this case, as in Patrick, where the language of both the applicable statute and the exclusion clause in the insurance contract are clear, we must decline Plaintiff's invitation to implement "policy" in this matter. Any such policy implementation is best left to the wisdom of our legislature.
Here, Defendants moved for summary judgment based upon the City of Raleigh's and Wake County's purchase of self-insured retention liability insurance policies. These policies provided coverage for certain general liability claims of damages in excess of $1,000,000.00. Both policies also explicitly and expressly preserve the policyholder's defense of sovereign immunity.
The City of Raleigh's policy contains a provision, which states: "This policy is not intended by the Named Insured to waive its governmental immunity as allowed by North Carolina General Statutes Sec. 115C-42, Sec. 153A-435, or Sec. 160A-485, as applicable, or any amendments thereof." Wake County's policy contained a similar provision, which stated: "We will not waive your defense under any governmental immunity as allowed by North Carolina General Statutes Sec. 153A-435."
The insurance policy provisions at issue here are "materially indistinguishable from the provisions in Patrick and Estate of Earley. We are therefore bound by this Court's prior holdings." Wright v. Gaston Cnty., 205 N.C. App. 600, 608, 698 S.E.2d 83, 89-90 (2010) (citing In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)).
The unambiguous language of both policies clearly preserves the defense of governmental immunity for both the City of Raleigh and Wake County from claims for damages of less than $1,000,000.00. Neither the City of Raleigh nor Wake County waived its sovereign immunity through the purchase of their respective liability insurance policies at bar. The defense of sovereign immunity applies to pre-empt Plaintiffs' claims against the City of Raleigh and Wake County.
Furthermore, in a motion for summary judgment,
[t]he moving party has the burden of showing that the opposing party cannot surmount an affirmative defense which would bar the claim. Once the moving party has met its burden, the opposing party must challenge the motion by forecasting sufficient evidence to illustrate the existence of a prima facie case for trial.Wilhelm v. City of Fayetteville, 121 N.C. App. 87, 89, 464 S.E.2d 299, 300-01 (1995).
Our review of the record shows Plaintiffs failed to put forth any forecast of evidence tending to show their damages would exceed $1,000,000.00 to trigger the excess coverage under the policies, in order to survive Defendants' motions for summary judgment. The trial court's order allowing summary judgment for Defendants is affirmed.
V. Conclusion
Defendants' liability insurance policies clearly preserved the defense of governmental or sovereign immunity to bar Plaintiffs' claims. Plaintiffs failed to forecast damages above the required amount to trigger coverage and waive governmental or sovereign immunity. The trial court's order allowing summary judgment for Defendants is affirmed.
AFFIRMED.
Judges CALABRIA and HUNTER, JR.
Report per Rule 30(e).