Lucas v. Swain County Bd. of Educ., No. COA02-253.

Docket NºNo. COA02-253.
Citation573 S.E.2d 538, 154 NC App. 357
Case DateDecember 03, 2002
CourtCourt of Appeal of North Carolina (US)

573 S.E.2d 538
154 NC App.
357

Sharon LUCAS, Plaintiff,
v.
SWAIN COUNTY BOARD OF EDUCATION, and Farley Construction Co., Inc., Defendants

No. COA02-253.

Court of Appeals of North Carolina.

December 3, 2002.


573 S.E.2d 539
Bridgers & Ridenour, PLLC, by Ben Oshel Bridgers and Eric Ridenour, Sylva, for plaintiff-appellee

Roberts & Stevens, P.A., by Sarah Patterson Brison Meldrum, Asheville, for defendant-appellant Swain County Board of Education.

Yates, McLamb & Weyher, L.L.P., by Barbara B. Weyher; and Allison Schafer, Raleigh, for the North Carolina School Boards Association, amicus curiae.

Ferguson Stein Chambers Wallas Adkins Gresham & Sumter, P.A., by S. Luke Largess, Charlotte, for the North Carolina Academy of Trial Lawyers, amicus curiae.

MARTIN, Judge.

Swain County Board of Education ("defendant") appeals an order granting partial summary judgment in favor of Sharon Lucas ("plaintiff") on the issue of defendant's governmental immunity. For reasons stated herein, we affirm in part, reverse in part, and remand.

The facts pertinent to this appeal are as follows: plaintiff was injured on 18 September 1999 when she allegedly fell down concrete steps at the Swain County High School Football Stadium, located on land owned by defendant. On 12 June 2000, plaintiff filed a complaint against defendant and the construction company which had constructed the steps, alleging their negligence caused her injuries. The construction company's motion to dismiss plaintiff's complaint was granted on 18 April 2001. On 20 September 2001, plaintiff moved for partial summary judgment against defendant, asserting defendant had waived its governmental immunity pursuant to G.S. § 115C-42 through the purchase of insurance from the North Carolina School Boards Trust ("the Trust"). The statute provides, in relevant part:

Any 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.
Any contract of insurance purchased pursuant to this section shall be issued by a company or corporation duly licensed and authorized to execute insurance contracts in this State or by a qualified insurer as determined by the Department of Insurance ....

N.C. Gen.Stat. § 115C-42 (2001) (emphasis added). The evidence showed that at the time of plaintiff's accident, defendant had entered into a General Liability Trust Fund Agreement ("Agreement") with the Trust wherein the Trust agreed to pay damages resulting from claims against defendant for bodily injury up to $100,000. The Agreement also provided for excess insurance coverage for claims between $100,000 and $1,000,000.

In support of her motion, plaintiff filed an affidavit in an unrelated case from Peter Kolbe of the Department of Insurance, which had been given prior to plaintiff's injury. In the affidavit, Mr. Kolbe stated that he considers the Trust to be engaged in the business

573 S.E.2d 540
of insurance. In addition, plaintiff offered the deposition testimony of Edwin Dunlap, Jr., Executive Director of the North Carolina School Boards Association, and Treasurer of the Trust. Dunlap's deposition established that under the agreement with the Trust, defendant's excess coverage for claims between $100,000 and $1,000,000 was provided by a commercial insurer, not the Trust itself

In response to plaintiff's motion, defendant filed the affidavit of William Hale, Deputy Insurance Commissioner, stating that Mr. Kolbe's opinion that the Trust is an insurer does not represent the official position of the Department of Insurance, and that the Trust is neither licensed and authorized to execute insurance contracts in this State, nor a qualified insurer as determined by the Department of Insurance. In addition, defendant moved to strike Mr. Kolbe's affidavit as not having been given for the case at issue.

On 21 September 2001, defendant moved for summary judgment on the ground that it is immune from suit under the doctrine of governmental immunity. Defendant offered two affidavits in support of its motion, one from Patsy Earley, defendant's finance officer, and the other from Edwin Dunlap. Both affidavits established the Trust is not authorized and licensed to execute insurance contracts in this State and that it is not considered a qualified insurer as determined by the Department of Insurance. In addition, the trust fund coverage agreement was in evidence and provided:

[t]he NCSBT Coverage Agreement is not a contract of insurance by a company or corporation duly licensed and authorized to execute insurance contracts in this State or by a qualified insurer as determined by the Department of Insurance. Therefore, the NCSBT Coverage Agreement expressly is not considered a waiver of governmental immunity as provided in G.S. 115C-42.

On 15 November 2001, the trial court entered an order denying defendant's motion and granting plaintiff's motion for partial summary judgment, holding that defendant had waived its governmental immunity to the full extent of the coverage, $1,000,000, provided by this Agreement. Defendant appeals.

Although defendant's appeal is interlocutory in nature, it is well-established that the denial of a motion for summary judgment grounded on governmental immunity affects a substantial right and is immediately appealable; thus, defendant's appeal is properly before us. See Craig v. Asheville City Bd. of Educ., 142 N.C.App. 518, 543 S.E.2d 186 (2001). By two of its three assignments of error, defendant argues the trial court erred in denying its motion for summary judgment and in granting plaintiff's motion for partial summary judgment where plaintiff's claims are barred by governmental immunity as a matter of law. The standard for ruling upon a motion for summary judgment is well-settled: summary judgment should only be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as...

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19 practice notes
  • Ortiz v. Vance Cnty. Sch., No. 5:18-CV-91-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • April 30, 2019
    ...v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003); Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002); Seipp, 132 N.C.Page 16 App. at 121, 510 S.E.2d at 194. Under North Carolina law, school boards are immune from tort claims unless ......
  • Biggs v. Edgecombe Cnty. Pub. Sch. Bd. of Educ., No. 4:16-CV-271-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 18, 2018
    ...N.C. Sch. Bds. Ass'n, Inc., 158 N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003); Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002); Seipp, 132 N.C. App. at 121, 510 S.E.2d at 194. Plaintiffs contend that the Board waived its governmental immunity concerning t......
  • J.W. v. Johnston Cnty. Bd. of Educ., No. 5:11-CV-707-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 24, 2012
    ...is the exclusive means for a board to waive immunity. See id. § 115C-42; Lucas v. Swain Cnty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002). Furthermore, a board waives its immunity only to the extent of its liability insurance coverage, and the insurance contract must be......
  • C.G.A. v. Iredell-Statesville Sch. Dist. Bd. of Educ., Civil Action 5:20-CV-00192-KDB-DSC
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 5, 2021
    ...waives its immunity by purchasing liability insurance. See § 115C-42; see also Lucas v. Swain Cnty. Bd. of Educ., 154 N.C.App. 357, 361, 573 S.E.2d 538, 541 (2002). “[A] board waives its immunity only to the extent of its liability insurance coverage, and the insurance contract must be purc......
  • Request a trial to view additional results
19 cases
  • Ortiz v. Vance Cnty. Sch., No. 5:18-CV-91-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • April 30, 2019
    ...v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003); Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002); Seipp, 132 N.C.Page 16 App. at 121, 510 S.E.2d at 194. Under North Carolina law, school boards are immune from tort claims unless ......
  • Biggs v. Edgecombe Cnty. Pub. Sch. Bd. of Educ., No. 4:16-CV-271-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 18, 2018
    ...N.C. Sch. Bds. Ass'n, Inc., 158 N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003); Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002); Seipp, 132 N.C. App. at 121, 510 S.E.2d at 194. Plaintiffs contend that the Board waived its governmental immunity concerning t......
  • J.W. v. Johnston Cnty. Bd. of Educ., No. 5:11-CV-707-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 24, 2012
    ...is the exclusive means for a board to waive immunity. See id. § 115C-42; Lucas v. Swain Cnty. Bd. of Educ., 154 N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002). Furthermore, a board waives its immunity only to the extent of its liability insurance coverage, and the insurance contract must be......
  • C.G.A. v. Iredell-Statesville Sch. Dist. Bd. of Educ., Civil Action 5:20-CV-00192-KDB-DSC
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • August 5, 2021
    ...waives its immunity by purchasing liability insurance. See § 115C-42; see also Lucas v. Swain Cnty. Bd. of Educ., 154 N.C.App. 357, 361, 573 S.E.2d 538, 541 (2002). “[A] board waives its immunity only to the extent of its liability insurance coverage, and the insurance contract must be purc......
  • Request a trial to view additional results

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