Fulford v. Jenkins
| Decision Date | 17 February 2009 |
| Docket Number | No. COA08-675.,COA08-675. |
| Parties | James E. FULFORD Jr., Executor for the Estate of Mary Fulford, Plaintiff-Appellee, v. Antonio Javon JENKINS; County of Duplin; Duplin County Department of Social Services; Millie I. Brown, Individually and in her Official Capacity as Director of Duplin County Department of Social Services; De Wana Kenan, Individually and in her Official Capacity as a Social Worker with the Department of Social Services; Sherita Wright, Individually and in her Official Capacity as a Social Worker with the Duplin County Department of Social Services; Nanette Smith, Individually and in her Official Capacity as a Social Worker with the Department of Social Services; and Elva Quinn, Individually and in her Official Capacity as a Social Worker with the Duplin County Department of Social Services, Defendants-Appellants. |
| Court | North Carolina Court of Appeals |
Valentine & McFayden, P.C., by Stephen M. Valentine, Beaufort, for Plaintiff-Appellee.
Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Christopher J. Geis, Winston-Salem, for Defendants-Appellants.
Plaintiff filed his complaint on 28 October 2005, alleging that Duplin County; Duplin County Department of Social Services (DSS); Millie I. Brown, Director of DSS; and DSS social workers De Wana Kenan, Sherita Wright, Nanette Smith and Elva Quin (collectively Defendants) were negligent in their supervision of a thirteen-year-old boy (the Juvenile) over whom they exercised control. Plaintiff alleged in his complaint that Defendants arranged placement of the Juvenile with his grandmother on 17 September 2003, and that on 30 October 2003 the Juvenile repeatedly stabbed his grandmother's next door neighbor, Mary Fulford, resulting in her death. Plaintiff's complaint also included a claim against the Juvenile, which is not the subject of this appeal.
Defendants filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on 9 January 2008, arguing that Defendants were protected by the doctrine of governmental, or sovereign, immunity from Plaintiff's suit. N.C. Gen.Stat. § 1A-1, Rule 56. Defendants further argued that Plaintiff's complaint failed to state valid claims against individual Defendants in their individual capacities.
By orders entered 20 March 2008, the trial court granted summary judgment in favor of the individual defendants in their individual capacities, but denied summary judgment for Duplin County, DSS and the individual defendants in their official capacities. Defendants appeal.
In Defendants' appeal, they argue the trial court erred in partially denying their motion for summary judgment because they are immune from suit in this case based upon the doctrine of governmental immunity. We disagree.
"Summary judgment is properly granted only `if 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.'" "On appeal, our standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law." "The evidence presented is viewed in the light most favorable to the non-movant."
"Under the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity." When a county purchases liability insurance, however, it waives governmental immunity to the extent it is covered by that insurance. N.C. Gen.Stat. § 153A-435(a)(2004).
McCoy v. Coker, 174 N.C.App. 311, 313, 620 S.E.2d 691, 693 (2005) (citations omitted).
In the case before us, Duplin County purchased an insurance policy (the policy) through its participation in the North Carolina Counties Liability and Property Insurance Pool Fund. The dispositive issue in this case is whether the policy covers the acts alleged in Plaintiff's complaint, thus constituting a waiver of governmental immunity by Duplin County. "It is defendants' burden to show that no genuine issue of material fact exists that the policy does not cover [their] actions in the instant case." Id. at 313-14, 620 S.E.2d at 693, citing Marlowe v. Piner, 119 N.C.App. 125, 127-28, 458 S.E.2d 220, 222 (1995). This Court's review of contract provisions is de novo. Sutton v. Messer, 173 N.C.App. 521, 525, 620 S.E.2d 19, 22 (2005).
It is well established that contracts for insurance are to be interpreted under the same rules of law as are applicable to other written contracts. One of the most fundamental principles of contract interpretation is that ambiguities are to be construed against the party who prepared the writing. Therefore, in an insurance contract all ambiguous terms and provisions are construed against the insurer.
Chavis v. Southern Life Ins. Co., 318 N.C. 259, 262, 347 S.E.2d 425, 427 (1986) (citations omitted).
Duplin County purchased General Liability Coverage in the amount of $2,000,000.00 per occurrence, without any deductible. [R.p. 83] The "General Liability Contract Declarations" section of the policy contains the following relevant provisions:
A. Coverage Agreement
The Fund agrees, subject to the limitations, terms, and conditions hereunder mentioned:
1. to pay on behalf of the Participant all sums which the Participant shall be obligated to pay by reason of the liability imposed upon the Participant by law or assumed by the Participant under contract or agreement for damages on account of Personal Injury, Bodily Injury ... including death at any time resulting therefrom, suffered or alleged to have been suffered by any persons ... arising out of any Occurrence from any cause other than as covered by ... Section V (Professional Liability) of the Contract[.]
....
K. Definitions
....
10. "Occurrence" means [a] ... happening or event or a continuous or repeated exposure to conditions which result in Personal Injury [or] Bodily Injury ... during the Contract Period. All Personal Injury or Bodily Injury to one or more persons ... arising out of ... a happening or event or continuous or repeated exposure to conditions shall be deemed an Occurrence.
....
E. Exclusions Applicable to General Liability
This coverage does not apply to any of the following:
....
13. Public Officials Liability
to any liability for any actual or alleged error, ... act, or omission, or neglect or breach of duty by the Participant, or by any other persons for whose acts the Participant is legally responsible arising out of the discharge of duties as a political subdivision or a duly elected or appointed member or official thereof.
Defendants argue that the Public Officials exclusion to the General Liability section of the policy serves to exclude them from liability coverage for Plaintiff's claims, thus rendering them immune from suit due to governmental immunity. Defendants cite two opinions from our Court which held that exclusionary provisions in the relevant insurance policies, identical in language to the Public Officials exclusion contained in the General Liability Coverage section of the policy in this case, served to exclude the policyholders (New Hanover and Orange Counties) from coverage for the claims against them. See Satorre v. New Hanover County Bd. of Comm'rs, 165 N.C.App. 173, 598 S.E.2d 142 (2004); Doe v. Jenkins, 144 N.C.App. 131, 547 S.E.2d 124 (2001). In Satorre and Doe, our Court held that because the counties were excluded from coverage for the claims brought against them due to the relevant, identical provisions in their policies, they were protected by governmental immunity and thus immune from suit.
Assuming arguendo that Defendants' interpretation of the General Liability portion of the policy is correct, our analysis does not end there. The Satorre and Doe opinions do not discuss any additional coverage the defendants in those cases might have purchased. Duplin County purchased Professional Liability Coverage in addition to its General Liability Coverage, including coverage for Public Officials Liability in the amount of $2,000,000.00 per occurrence, which included a $5,000.00 deductible for each wrongful act of Duplin County. [R.p. 133] The relevant sections of this "Professional Liability: Law Enforcement and Public Officials Contract Declarations" coverage are as follows:
A. Coverage Agreements.
....
2. Public Officials Coverage
The Fund will pay on behalf of the Participant or a Covered Person, or both, all sums which the Participant or Covered Person shall become legally obligated to pay as money damages because of any civil claim or claims brought against the Participant or a Covered Person arising out of any Wrongful Act of any Covered Person acting in his capacity as a Covered Person(s) of the Participant and caused by the Covered Person while acting in his regular course of duty.
....
G. Exclusions Applicable to Public Officials Coverage.
This coverage does not apply to any claim as follows:
....
4. for Bodily Injury[.]
....
K. Definitions.
....
2. "Bodily Injury" means bodily injury ... sustained by a person including death as a result of an injury ... at any time.
....
12. "Wrongful Act" means any actual or alleged error or ... act or omission or neglect or breach of duty including misfeasance, malfeasance, nonfeasance and "Employment Practices Violation(s)" by a Covered Person while acting within the scope of his professional...
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