Edwards v. Akion, 8010SC961

• Decision Date: 07 July 1981
• Docket Number: No. 8010SC961,8010SC961
• Citation: Edwards v. Akion, 52 N.C.App. 688, 279 S.E.2d 894 (N.C. App. 1981)
• Court: North Carolina Court of Appeals
• Parties: , 17 A.L.R.4th 870 Patricia L. EDWARDS v. Tyrone AKION and the City of Raleigh, North Carolina.

Page 894

279 S.E.2d 894

52 N.C.App. 688, 17 A.L.R.4th 870

Patricia L. EDWARDS v.Tyrone AKION and the City of Raleigh, North Carolina.

No. 8010SC961.

Court of Appeals of North Carolina.

July 7, 1981.

DeMent, Redwine & Askew by Johnny S. Gaskins, Raleigh, for plaintiff-appellant.

Teague, Campbell, Conely & Dennis by Richard B. Conely, Raleigh, for defendant-appellee, City of Raleigh.

HARRY C. MARTIN, Judge.

Plaintiff seeks to recover from the City of Raleigh upon two theories.First, she alleges that Akion committed an assault and battery upon her while he was acting within the scope of his employment, imputing liability to the City.Second, she contends that the City negligently failed to supervise the activities of Akion, and that this negligence proximately caused her injuries.Plaintiff's sole assignment of error deals with the propriety of the trial court's granting summary judgment in favor of the City on these claims.

The standard for determining whether summary judgment is appropriate is set out in Rule 56(c) of the North Carolina Rules of Civil Procedure and is thoroughly explained in Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823(1971).The moving party must clearly establish that there is no triable issue of fact and that it is entitled to judgment as a matter of law.Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563(1975).In an action based on negligence, summary judgment for a defendant is proper where the evidence demonstrates no negligence by the defendant or contributory negligence by the plaintiff, or where it is established that the defendant's negligence was not the proximate cause of the plaintiff's injury.Hale v. Power Co., 40 N.C.App. 202, 252 S.E.2d 265, disc. rev. denied, 297 N.C. 452, 256 S.E.2d 805(1979).Applying these principles, we must conclude that the trial court erred in granting summary judgment for the City.

Plaintiff has conceded that Akion's actions constitute an intentional tort and that the refuse collection service provided by the City is a governmental function.Under the common law, a municipality is not liable for the torts of its employees committed while performing a governmental function.Galligan v. Town of Chapel Hill, 276 N.C. 172, 171 S.E.2d 427(1970);Town of Hillsborough v. Smith, 10 N.C.App. 70, 178 S.E.2d 18(1970), cert. denied, 277 N.C. 727, 178 S.E.2d 831(1971).This immunity is waived only under the authority of statute.Id.N.C.G.S. 160A-485(a) authorizes a city to waive its immunity from civil liability in tort by purchasing liability insurance.Immunity is waived only to the extent that the city is indemnified by the insurance contract.Id.SeeWhite v. Mote, 270 N.C. 544, 155 S.E.2d 75(1967).All issues of law or fact relating to insurance coverage are heard and determined by the judge sitting without a jury, unless the city waives this right and demands a jury trial on insurance issues.N.C.Gen.Stat. 160A-485(d).

The City of Raleigh purchased a liability insurance policy from the South Carolina Insurance Company.The policy is included as an exhibit in the record, and was in effect at the time plaintiff's injury occurred.The City is the named insured under the terms of the policy.Persons insured include "the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such ...."An endorsement amends the policy "to include any employee of the named insured while acting within the scope of his duties as such ...."The policy states: "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury ... to which this insurance applies, caused by an occurrence ...."It defines an "occurrence" as "an accident ... which results in bodily injury ... neither expected nor intended from the standpoint of the insured."There is no provision expressly excluding intentional acts.

The first issue, then, is whether an intentional assault can be an "occurrence" within the meaning of the insurance policy.The language of the policy clearly provides that the expectations or intent are to be viewed from the standpoint of the insured, as opposed to that of the injured party.The City argues that because Akion was covered as an additional insured under the endorsement, the event should be viewed from his standpoint, and that because plaintiff contends Akion intentionally assaulted her, his actions were outside the coverage of the policy.We do not agree.The City is the named insured.It certainly did not expect or intend that its employees would assault a third party.As to the City, the acts of Akion were an "occurrence" under the terms of the insurance policy.

The use of the term "insured" in this context is ambiguous.Such ambiguities are to be construed against the insurer.SeeInsurance Co. v. Insurance Co., 269 N.C. 341, 152 S.E.2d 436(1967)."The insurance companies have it within their power, by simplicity and clarity of expression, to remove all doubt."Bone v. Insurance Co., 10 N.C.App. 393, 395, 179 S.E.2d 171, 172, cert denied, 278 N.C. 300, 180 S.E.2d 177(1971)(noting that it is a well established rule in this jurisdiction that an intentional assault, unforeseen and unprovoked, against an insured is to be considered accidental).

Even when an insurance policy expressly excludes coverage for intentional injuries, there exists a significant split of opinion as to whether an assault will be covered.See44 Am.Jur.2dInsurance§ 1411(1969)(and cases cited therein); Annot., 2 A.L.R.3d 1238(1965).Where there is no specific exclusionary clause, but, instead, the language is similar to that used in the policy here in question, the courts are even more inclined to hold in favor of coverage.See44 Am.Jur.2d, supra, § 1412; Annot., 33 A.L.R.2d 1027(1954).We feel the better approach is that described in 44 Am.Jur.2d, supra, § 1411:

(W)here a third person seeks to recover from an insured on the basis of injuries or damages allegedly caused by an agent of the named insured, in the absence of a showing that the injury complained of was "at the direction of" the named insured, a liability insurer is not relieved of its obligation to the insured by an "intentional injury or damage" clause.Even though injuries or damages have been intentionally caused by a person who would be an "additional" insured under the terms of a particular liability policy, it has been held that an "intentional injury or damage" exclusion clause does not relieve the insurer of its obligations to the "named" insured where the injured person seeks to recover from the "named" insured rather than the "additional" insured, at least in the absence of a showing that the injurious acts were directed by the named insured.

In Jackson v. Casualty Co., 212 N.C. 546, 193 S.E. 703(1937), our Supreme Court held that an intentional assault by the driver of an automobile was not covered by an automobile insurance policy covering accidental injury.Later, in Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654(1964), however, the Court noted that in Jackson, North Carolina had aligned itself with the minority view, and held that an intentional assault with an automobile would be considered an accident, but only where the insurance coverage was mandatory.This decision was based on the statutory purpose of mandating compulsory motor vehicle insurance to compensate innocent victims, "not, like that of ordinary insurance, to save harmless the tortfeasor himself."Id. at 291, 134 S.E.2d at 659.We believe a similar rationale applies to a liability policy procured by a city.As a city is ordinarily immune from tort liability, when it voluntarily waives that immunity by purchasing liability insurance, it obviously does so to protect innocent victims.By extending its coverage to city employees, the clear intent is to protect victims from acts of the employees as well as its officers, directors, and stockholders.The endorsement amended "persons insured" under the policy to include employees acting within the scope of their duties.We hold that the policy covers intentional torts committed by a City employee, when neither expected nor intended by the City, if these actions were committed within the scope of the employee's duties.

The next question is whether Akion's actions were committed within the scope of his employment.Acting within the scope of employment means doing what one was employed or authorized to do.Wegner v. Delicatessen, 270 N.C. 62, 153 S.E.2d 804(1967);Thrower v. Dairy Products, 249 N.C. 109, 105 S.E.2d 428(1958).An act is within the scope of an employee's implied authority, even if it is contrary to the employer's express instructions, when the act is done in the furtherance of the employer's business and in the discharge of the duties of employment.West v. Woolworth Co., 215 N.C. 211, 1 S.E.2d 546(1939).The employer is liable if its employee, in performing his duties, adopts a method which constitutes a tort and inflicts an injury upon a third party.Id.See alsoAnnot., 6 A.L.R. 985, 1007(1920).To relieve the employer of responsibility, it is not sufficient to show that the employee was violating a rule or instruction.Duckworth v. Metcalf, 268 N.C. 340, 150 S.E.2d 485(1966);Hinson v. Chemical Corp., 230 N.C. 476, 53 S.E.2d 448(1949).However, there is a difference between carrying out the employer's business and attempting to punish one who interferes with that business.SeeClemmons v. Insurance Co., 274 N.C. 416, 163 S.E.2d 761(1968);D'Armour v. Hardware Co., 217 N.C. 568, 9 S.E.2d 12(1940);Overton v. Henderson, 28 N.C.App. 699, 222 S.E.2d 724, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324(1976).

We find Munick v. Durham, 181 N.C. 188, 106 S.E. 665(1921), to be instructive.In Munick, the plaintiff went to the office of the city water-works to pay his water bill.He paid...