Opinion
No. COA09-315.
Filed March 2, 2010.
Cleveland County No. 08 CVS 1919.
Appeal by defendants from order entered 17 November 2008 by Judge Forrest D. Bridges in Superior Court, Cleveland County. Heard in the Court of Appeals 29 September 2009.
J. Neal Rodgers for plaintiff-appellee. Womble Carlyle Sandridge Rice, PLLC, by Sean F. Perrin, for defendants-appellants.
"[W]aiver of a sheriff's official immunity may be shown by the existence of his official bond. . . ." Here, Defendant Cleveland County Sheriff Rodney Hamrick argues that the trial court erred by denying him summary judgment on Plaintiff Youthon Trent Redmond's claim on grounds of sovereign immunity. Because Defendant Hamrick waived sovereign immunity by purchasing a surety bond, and Plaintiff effectively joined the surety as a party to the action, we affirm the order of the trial court.
Smith v. Phillips, 117 N.C. App. 378, 384, 451 S.E.2d 309, 314 (1994).
Plaintiff's forecast of evidence tended to show the following: On or about 8 August 2005, Plaintiff was incarcerated at the Cleveland County Detention Center ("Detention Center"). On 11 August 2005, Plaintiff suffered a seizure from Xanax withdrawal, which caused him to fall and fracture his left ankle. Plaintiff received treatment at Cleveland Regional Medical Center from 11 August to 17 August 2005.
Plaintiff filed a complaint on 11 August 2008, alleging that his seizure and other resultant medical issues stemmed from the lack of medical care and attention he received at the Detention Center. Plaintiff asserted four claims for relief: (1) medical negligence as to Defendant Southern Health Partners, Inc. ("SHP"), the medical services provider for the Detention Center, and Defendants Dr. Laurie S. Bumgarner and Nurse Kim Jackson, both SHP employees; (2) corporate negligence and negligent supervision as to Defendant SHP; (3) gross negligence as to Defendants Bumgarner and Jackson in their individual capacities, and negligent retention and supervision as to Defendant SHP; and (4) negligence as to Defendant Hamrick under the doctrine of respondeat superior and for failure to comply with his statutory duties under N.C. Gen. Stat. sections 153A-221, -224 (2009).
Defendant Hamrick filed an answer on 16 September 2008, denying Plaintiff's claims. He then filed a motion for summary judgment on 18 September 2008, alleging that Plaintiff's claims against him were barred by the doctrine of sovereign immunity. After considering Defendant Hamrick's motion, the trial court filed an order on 17 November 2008, granting summary judgment in part, and denying summary judgment in part. The trial court stated:
The Court GRANTS the Motion for Summary Judgment as to Defendant Hamrick, in his official capacity as Sheriff of Cleveland County, except to the extent that the Plaintiff seeks to assert a claim against Defendant Hamrick arising out of a statutory duty under N.C. Gen. Stat. §§ 153A-221, et seq.
. . .
To the extent that the Plaintiff seeks to sound a claim against Defendant Hamrick, in his official capacity as Sheriff of Cleveland County, asserting claims for tort liability including but not limited to claims for medical malpractice or medical negligence under the doctrine of respondeat superior, concerning acts or omissions of agents contracted pursuant to any plan adopted for providing medical care for prisoners in the Cleveland County Detention Center, such claims are hereby DISMISSED WITH PREJUDICE against Defendant Hamrick.
On appeal, (I) Defendant Hamrick argues that the trial court erred by denying summary judgment in part because Plaintiff's claim under N.C. Gen. Stat. §§ 153A-221, -224, is barred by sovereign immunity, and (II) Plaintiff cross-assigns error arguing the trial court erred by granting Defendant partial summary judgment as to the issue of medical negligence under the doctrine of respondeat superior because Defendant Hamrick is not entitled to sovereign immunity. After careful review, we affirm.
I.
Defendant Hamrick appeals from the trial court's order denying summary judgment "to the extent that the Plaintiff seeks to assert a claim against Defendant Hamrick arising out of a statutory duty under N.C. Gen. Stat. §§ 153A-221, et seq." Defendant Hamrick argues that the trial court erred by not granting summary judgment in his favor because Plaintiff's action is barred by the doctrine of sovereign immunity.
We note that Defendant Hamrick's appeal is interlocutory. However, because a denial of summary judgment on the basis of sovereign immunity is immediately appealable, his appeal is properly before this Court. See Taylor v. Ashburn, 112 N.C. App. 604, 606, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994).
"Governmental immunity shields municipalities and the officers or employees thereof sued in their official capacities from suits based on torts committed while performing a governmental function." Kephart v. Pendergraph, 131 N.C. App. 559, 563, 507 S.E.2d 915, 918 (1998) (citing Taylor, 112 N.C. App. at 607, 436 S.E.2d at 278). Further, the doctrine of sovereign immunity bars actions against public officials, including sheriffs, when they are sued in their official capacities. See Phillips v. Gray, 163 N.C. App. 52, 56-57, 592 S.E.2d 229, 232, disc. review denied, 358 N.C. 545, 599 S.E.2d 406 (2004).
Moreover, "[i]t is generally established that a sheriff is a public official entitled to sovereign immunity and, unless the immunity is waived pursuant to a statute, is protected from suit against him in his official capacity." Smith, 117 N.C. App. at 381, 451 S.E.2d at 312. Thus, because Plaintiff's action was brought against Defendant Hamrick in his official capacity, Defendant Hamrick is entitled to sovereign immunity unless the immunity is waived pursuant to statute.
As this Court has previously recognized, "[o]ur Legislature has prescribed two ways for a sheriff to be sued in his official capacity, thus waiving sovereign immunity." Myers v. Bryant, 188 N.C. App. 585, 588, 655 S.E.2d 882, 885, disc. review denied, 362 N.C. 360, 664 S.E.2d 309 (2008). First, a sheriff may waive governmental immunity by purchasing a bond, so long as the surety is joined as a party to the action. Sellers v. Rodriguez, 149 N.C. App. 619, 624, 561 S.E.2d 336, 339 (2002); see also N.C. Gen. Stat. § 58-76-5 (2009) ("Every person injured by the neglect . . . in office of any . . . sheriff . . ., may institute a suit or suits against said officer . . . and their sureties upon their respective bonds for the due performance of their duties in office in the name of the State, without any assignment thereof. . . ."). Second, a sheriff may waive sovereign immunity by the purchase of liability insurance. See N.C. Gen. Stat. § 153A-435 (2009) ("Purchase of insurance pursuant to this subsection waives the county's governmental immunity, to the extent of insurance coverage, for any act or omission occurring in the exercise of a governmental function.").
Plaintiff joined "John Doe Surety Company" as surety for Defendant Hamrick as a party to the action in his 11 August 2008 complaint and specifically invoked N.C. Gen. Stat. § 58-76-5. Defendant Hamrick admitted in his answer that "as Sheriff of Cleveland County he has furnished a bond to Cleveland County pursuant to the requirements of state law." Although the record is silent as to an amendment to the complaint by Plaintiff, we hold the joining of a "John Doe Surety Company" sufficient to meet the statutory requirements that the surety be joined as a party to the action.
We note that Defendant Hamrick argues that Plaintiff's motion to amend his complaint to name the surety would be barred by the statute of limitations. He concludes from this that his sovereign immunity was not waived by bond because Plaintiff has not properly joined the surety. This argument conflates two distinct issues: (1) whether Plaintiff's complaint is sufficient to meet the jurisdictional requirements of N.C. Gen. Stat. § 58-76-5 and (2) whether Plaintiff could proceed against the surety under the relation-back doctrine of N.C. Gen. Stat. § 1A-1, Rule 15. We are satisfied that the designation "John Doe" in the complaint is sufficient to meet the jurisdictional requirements of N.C. Gen. Stat. § 58-76-5. The latter issue of whether Plaintiff may proceed against the surety under the relation-back doctrine is not before us. We note further that this holding is not inconsistent with Mellon v. Prosser as we understand that opinion to enforce the jurisdictional requirement alone. 126 N.C. App. 620, 624-25, 486 S.E.2d 439, 442-43 (1997) (Wynn, J. dissenting) (writing not to allow remand for amendment of complaint where the plaintiff failed to join any party as surety or otherwise plead any waiver of immunity by the sheriff), aff'd in part, rev'd in part for reasons stated in the dissent, 347 N.C. 568, 494 S.E.2d 763-64 (1998) ( per curiam).
Having found that Defendant Hamrick waived his immunity by purchasing a surety bond, we dismiss Defendant Hamrick's claim that he is barred from suit under the doctrine of sovereign immunity as a matter of law, and affirm the trial court's partial denial of summary judgment.
II.
We now address Plaintiff's cross assignment of error, in which Plaintiff argues the trial court erred by granting summary judgment in favor of Defendant on the issue of medical negligence under the doctrine of respondeat superior. The threshold issue here is whether Plaintiff's appeal is premature, and therefore not properly before this Court.
"An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). This Court has explained:
Where . . . an order entered by the trial court does not dispose of the entire controversy between all parties, it is interlocutory. As a general rule, a party is not entitled to immediately appeal an interlocutory order. However, there are two situations in which an appeal of right lies from an order that is interlocutory. The first situation is where the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Secondly, a party may appeal an interlocutory order where delaying the appeal will irreparably impair a substantial right of the party.
Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (internal quotations citations omitted); see also N.C. Gen. Stat. § 7A-27(d)(2009).
Here, the trial court's partial grant of summary judgment is interlocutory and the trial court did not certify this issue for immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2009). Thus, Plaintiff's right to an immediate appeal, if one exists, depends on whether the order affects a substantial right.
Plaintiff argues that his substantial right "to have determined in a single action, the question of whether [Plaintiff] was injured by the acts of one, [all], or neither of the defendants" will be lost absent immediate review. DeHaven v. Hoskins, 95 N.C. App. 397, 399, 382 S.E.2d 856, 858, disc. review denied, 325 N.C. 705, 388 S.E.2d 452 (1989). However, this Court's decision to allow the immediate appeal of the interlocutory order in DeHaven was predicated on its finding that delaying the appeal created the possibility of inconsistent verdicts. Id. Here, no such possibility exists.
In this case, the trial court's order granted summary judgment in favor of Defendant Hamrick as to Plaintiff's claims of tort liability under the doctrine of respondeat superior. Accordingly, Defendant Hamrick's liability for medical negligence is derivative, or premised on the liability of SHP and its employees. See, e.g., Griffith v. Glen Wood Co., 184 N.C. App. 206, 215, 646 S.E.2d 550, 557 (2007) ("Under the doctrine of respondeat superior, an employer may be held vicariously liable for the torts of its employee who is acting within the scope of his employment."). Because Defendant Hamrick's liability depends upon the liability of the other Defendants, there can be no possibility of inconsistent verdicts. See Long v. Giles, 123 N.C. App. 150, 152-53, 472 S.E.2d 374, 375 (1996) (holding no substantial right exists to have the liability of both employer and employee determined in the same trial if respondeat superior is the only theory of liability against the employer); Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 200, 464 S.E.2d 720, 722 (1995) (no possibility of inconsistent verdicts in action based solely on respondeat superior because second trial would involve only the issue of a master/servant relationship between the defendants).
Accordingly, because there was no final judgment in this case, nor were there any substantial rights of the parties affected, we hold that Plaintiff's appeal is premature, and therefore, dismiss his cross-assignment of error as interlocutory.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).