Combs v. Town of Belhaven, N.C., 912SC423

• Decision Date: 07 April 1992
• Docket Number: No. 912SC423,912SC423
• Citation: 106 N.C.App. 71,415 S.E.2d 91
• Court: North Carolina Court of Appeals
• Parties: Robert J. COMBS v. The TOWN OF BELHAVEN, NORTH CAROLINA, a Municipal Corporation.

Page 91

415 S.E.2d 91

106 N.C.App. 71

Robert J. COMBS v. The TOWN OF BELHAVEN, NORTH CAROLINA, a Municipal Corporation.

No. 912SC423.

Court of Appeals of North Carolina.

April 7, 1992.

James R. Vosburgh, Washington, for plaintiff, appellant.

James B. McMullan, Jr., Washington, for defendant, appellee.

HEDRICK, Chief Judge.

The only question brought forward and argued on appeal is whether the trial court erred in holding as a matter of law that defendant Town of Belhaven had not waived sovereign immunity with regard to actions by town employees such as those set forth in plaintiff's complaint.

Under the common law, a municipality may not be held liable for torts committed by its employees in their performance of a governmental function. Shuping v. Barber, 89 N.C.App. 242, 246, 365 S.E.2d 712, 715 (1988), citing Galligan v. Town of Chapel Hill, 276 N.C. 172, 175, 171 S.E.2d 427, 429 (1970); Edwards v. Akion, 52 N.C.App. 688, 691, 279 S.E.2d 894, 896, aff'd per curiam, 304 N.C. 585, 284 S.E.2d 518 (1981). According to G.S. 160A-485(a), however, a town may waive this immunity by purchasing liability insurance. Immunity is waived only to the extent that the city or town is indemnified by the insurance contract from liability for the acts alleged. Id., Shuping v. Barber, 89 N.C.App. at 246, 365 S.E.2d at 715.

On 7 July 1986, the defendant town of Belhaven had in effect two insurance policies. All parties agree that the policy entitled "General Liability-Automobile Policy" has no application to the facts of this case. The second policy, entitled "North Carolina Public Officers & Employees Liability Insurance," contains Coverage A which applies to Law Enforcement Employees only and Coverage B which applies to all Public Employees/Officials except Law Enforcement Employees. Both coverages insure the Town of Belhaven against claims arising out of any wrongful act by any member of the specified class of employees which occurred while that employee was acting within the scope of his employment.

Both coverages contain exclusions. Coverage B specifically excludes claims against an employee or official other than a Law Enforcement Employee for "... loss, damage to or destruction of any tangible property or the loss of use thereof by reason of the foregoing; [and] ... for injury arising from: ... wrongful entry or eviction or other invasion of the right of private occupancy." These contractual provisions clearly exclude coverage for the claims set forth by plaintiff. Coverage A, however, does not contain an exclusion for such acts committed by a Law Enforcement Employee.

Plaintiff argues that the agents of defendant who allegedly damaged his property should fall within the policy definition of Law Enforcement Employees. Plaintiff asserts the position that any employee of the Town of Belhaven who is called upon to enforce a town ordinance should be classified as a Law Enforcement Employee. Defendant argues...