Herring v. Liner

• Decision Date: 06 April 2004
• Docket Number: No. COA03-552.,COA03-552.
• Parties: Loryn HERRING, a minor by Raymond M. Marshall, her Guardian Ad Litem, and Bessie Herring, Plaintiffs, v. Ronald LINER, Defendant.
• Court: North Carolina Court of Appeals

594 S.E.2d 117

163 NC App. 534

Loryn HERRING, a minor by Raymond M. Marshall, her Guardian Ad Litem, and Bessie Herring, Plaintiffs, v. Ronald LINER, Defendant.

No. COA03-552.

Court of Appeals of North Carolina.

April 6, 2004.

Harold L. Kennedy, III and Harvey L. Kennedy, Winston-Salem, for plaintiffs-appellants.

Pinto Coates Kyre & Brown, PLLC, by Richard L. Pinto and Martha P. Brown, Greensboro, for defendant-appellee.

TYSON, Judge.

Loryn Herring ("Loryn"), through her guardian ad litem, and her mother, Bessie Herring ("Herring") (collectively, "plaintiffs"), appeal from an order granting Ronald Liner's ("Liner") motion for summary judgment. We affirm.

I. Background

On 3 June 1998, plaintiffs sued the Winston-Salem/Forsyth County Board of Education and Liner (collectively, "defendants") for negligence, negligent supervision, and constructive fraud based on breach of fiduciary duty. This Court heard the appeal 30 March 2000 and held that sovereign immunity barred plaintiffs' claims. Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C.App. 680, 529 S.E.2d 458, disc. rev. denied, 352 N.C. 673, 545 S.E.2d 423 (2000). We incorporate the facts from that opinion here and include additional facts necessary for this appeal. Id.

On 4 December 2001, plaintiffs moved to set aside the order granting summary judgment in favor of Liner only, based on the discovery of a separate and additional insurance policy that was not before the superior court or this Court when the initial summary judgment motion or appeal was heard. Employers Reinsurance Corporation had issued an insurance policy ("the policy") to the North Carolina Association of Educators under which Liner was an insured at the time of the accident. Plaintiffs' motion to set aside the judgment regarding Liner only was granted on 31 January 2002. Liner filed a new motion for summary judgment on 7 November 2002, which was granted on 9 December 2002. Plaintiffs appeal.

In January 1995, Loryn was eight years old and attended Lewisville Elementary School in the Winston-Salem/Forsyth County School System. Loryn was violently attacked and beaten by three male students who were also riding on the school bus with her. The following morning, Herring went to Loryn's school and complained. She initially spoke with the principal, who directed her to speak with Liner, the assistant principal. Liner refused to expel or suspend the boys suspected in the attack on Loryn. In an affidavit, Herring claimed that Liner wrote and signed a note in her presence that changed Loryn's bus stop. Herring claims that she never requested a change in Loryn's bus stop. Liner claimed, in his affidavit, that Loryn's stop was changed due to Herring's specific request.

To reach the new bus stop, Loryn was required to cross a heavily traveled street. On the morning of 6 June 1995, Loryn was hit by an automobile as she crossed the street on the way to her bus stop. Loryn suffered serious injuries, including permanent brain damage. At the time of Loryn's injury, no school bus was approaching, present, or waiting at the bus stop. Liner was not present at the bus stop.

II. Issues

The issues are whether the trial court erred in: (1) construing the policy to deny coverage when an exception to the exclusion existed and (2) granting summary judgment when genuine issues of material fact existed.

III. Standard of Review for Summary Judgment

Our standard of review from the grant of a motion for summary judgment is whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 705, 707-708, 582 S.E.2d 343, 345 (2003), aff'd, 358 N.C. 137, 591 S.E.2d 520 (2004) (citing Willis v. Town of Beaufort, 143 N.C.App. 106, 108, 544 S.E.2d 600, 603, disc. rev. denied, 354 N.C. 371, 555 S.E.2d 280 (2001)); see N.C. Gen.Stat. § 1A-1, Rule 56(c) (2003).

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.'

Draughon, 158 N.C.App. at 708, 582 S.E.2d at 345 (quoting James v. Clark, 118 N.C.App. 178, 181, 454 S.E.2d 826, 828, disc. rev. denied, 340 N.C. 359, 458 S.E.2d 187 (1995)).

"`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.'" Draughon, 158 N.C.App. at 708, 582 S.E.2d at 345 (quoting Gaunt v. Pittaway, 139 N.C.App. 778, 784-785, 534 S.E.2d 660, 664 (2000)).

IV. Insurance Policy Coverage

A. Sovereign Immunity

Plaintiffs argue that Liner's sovereign immunity is waived by an exception to the exclusion of coverage existing in the policy. We disagree.

Sovereign immunity protects the State and its agents from suit. Ripellino v. N.C. School Bds. Ass'n, 158 N.C.App. 423, 427, 581 S.E.2d 88, 91-92 (2003), cert. denied, 358 N.C. 156, 592 S.E.2d 695 (Feb. 5, 2004). A county or city board of education is a governmental agency and its employees are not ordinarily liable in a tort action unless the board has waived its sovereign immunity. Id. N.C. Gen.Stat. § 115C-42 (2003) provides the only means by which a board of education may waive its sovereign immunity. Lucas v. Swain Cty. Bd. of Educ., 154 N.C.App. 357, 361, 573 S.E.2d 538, 541 (2002). This statute states,

[a]ny local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort.

N.C. Gen.Stat. § 115C-42 (2003). The mere purchase of a liability insurance policy by a board of education is insufficient to waive sovereign immunity. Id. Immunity is only waived to the extent that the liability insurance policy actually indemnifies the board of education or its employees. Id.

Here, under the "vehicle usage" section of the policy insuring Liner, any incidents arising from "[t]he ownership, operation, use, loading or unloading of (a) vehicles of any kind ..." by which the insured would normally be liable are excluded from coverage. Liner contends that this exclusion applies here and that sovereign immunity bars plaintiffs' claims.

B. Exceptions to Exclusions

Plaintiffs argue that the policy specifically carves out an exception to this exclusion and waives Liner's sovereign immunity. The exception states, "an insured who is supervising students entering or exiting a school bus" is not excluded from liability despite the "vehicle usage" exclusion cited by Liner. (emphasis supplied).

C. Construing Insurance Contracts

"`[A]n insurance policy is a contract and its provisions govern the rights and duties of the parties thereto.'" Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563 (2000) (quoting Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986)). When we construe provisions of an insurance policy, "the goal of construction is to arrive at the intent of the parties when the policy was issued." Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978). The language in the policy is to be construed as written "without rewriting the contract or disregarding the express language used." Fidelity Bankers Life Ins. Co., 318 N.C. at 380, 348 S.E.2d at 796 (citing Industrial Center v. Liability Co., 271 N.C. 158, 155 S.E.2d 501 (1967)).

"[E]xclusions from, conditions upon and limitations of undertakings by the [insurance] company, otherwise contained in the policy, are ... construed strictly ... to provide coverage." Trust Co. v. Insurance Co., 276 N.C. 348, 355, 172 S.E.2d 518, 522-523 (1970). "[P]rovisions which exclude liability of insurance companies are not favored and therefore all ambiguous provisions will be construed against the insurer...." State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986) (citing Trust Co., 276 N.C. at 355, 172 S.E.2d at 522-523). "Where a policy defines a term, that definition is to be used. If no definition is given, non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended." Gaston County Dyeing Machine Co., 351 N.C. at 299, 524 S.E.2d at 563 (quoting Woods, 295 N.C. at 505-506, 246 S.E.2d at 777). In determining the ordinary meaning of a word, it is appropriate to look to dictionary definitions. Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C.App. 506, 512, 428 S.E.2d 238, 241 (1993). Our Supreme Court has held that "[u]se of the plain, ordinary meaning of a term is the preferred construction." C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng. Co., 326 N.C. 133, 151, 388 S.E.2d 557, 568 (1990) (citing Woods, 295 N.C. at 505-506, 246 S.E.2d at 777).

D. Defining the Terms of the Exception

The determinative issue at bar is the meaning of the exception "is supervising students entering or exiting a school bus." The term "supervising" is not specifically defined in the policy and therefore must be given its ordinary and usual meaning. Id. Plaintiffs argue that the definition in Black's Law Dictionary, Rev. 4th ed., (1968), which defines one meaning of "super...