Ripellino v. N.C. School Boards Ass'n, Inc.

• Decision Date: 07 March 2006
• Docket Number: No. COA04-1681.,COA04-1681.
• Citation: 627 S.E.2d 225
• Court: North Carolina Court of Appeals
• Parties: Michael G. RIPELLINO, Louise A. Ripellino, and Nicole Ripellino, Plaintiffs-Appellants v. The NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, INCORPORATED; North Carolina School Boards Trust, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1982 North Carolina School Boards Association Self-Funded Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1986 North Carolina School Boards Association Self-Funded Errors and Omissions/General Liability Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1997 North Carolina School Boards Association Self-Funded Auto/Inland Marine Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; and The Johnston County Board of Education, Defendants-Appellees.

627 S.E.2d 225

Michael G. RIPELLINO, Louise A. Ripellino, and Nicole Ripellino, Plaintiffs-Appellants v. The NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, INCORPORATED; North Carolina School Boards Trust, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1982 North Carolina School Boards Association Self-Funded Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1986 North Carolina School Boards Association Self-Funded Errors and Omissions/General Liability Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; 1997 North Carolina School Boards Association Self-Funded Auto/Inland Marine Trust Fund, A Division and/or Department of, Created and Administered by, The North Carolina School Boards Association, Incorporated; and The Johnston County Board of Education, Defendants-Appellees.

No. COA04-1681.

Court of Appeals of North Carolina.

March 7, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by plaintiffs from orders entered 3 September 2004 and 8 September 2004 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 23 August 2005.

Mast, Schulz, Mast, Mills, Johnson & Wells, P.A., by Bradley N. Schulz and Don R. Wells, Smithfield, for plaintiffs-appellants.

Cranfill, Sumner & Hartzog, L.L.P., by Stephanie Hutchins Autry and Rachel B. Esposito, Raleigh, for defendant-appellee Johnston County Board of Education.

Yates, McLamb & Weyher, L.L.P., by Barbara B. Weyher, Raleigh, for defendants-appellees Trust Defendants.

CALABRIA, Judge.

Michael G. Ripellino, Louise A. Ripellino, and Nicole Ripellino (collectively "plaintiffs") appeal from orders granting summary judgment and judgment on the pleadings to the Johnston County Board of Education ("the Board") and to the North Carolina School Boards Association, Inc.; the North Carolina School Boards Trust; 1982 North Carolina School Boards Association Self-Funded Trust Fund; 1986 North Carolina School Boards Association Self-Funded Errors and Omissions/General Liability Trust Fund; and the 1997 North Carolina School Boards Association Self-Funded Auto/Inland Marine Trust Fund (collectively "Trust Defendants"). We reverse and remand.

A summary of the facts in this case are set out in Ripellino v. North Carolina School Boards Association, Inc., 158 N.C.App. 423, 425, 581 S.E.2d 88, 90 (2003) ("Ripellino I") as follows:

At the end of classes on 9 March 1998, [Nicole Ripellino ("Nicole")] was departing from Clayton High School in Johnston County in her parent[s'] vehicle. A traffic control gate owned by the Johnston County Board of Education ("the Board") swung closed, struck the vehicle, and injured Nicole. In October 1998, the Ripellinos were paid $2,153.18 for property damage. The Board refused to pay medical expenses or other compensation.

On 26 March 2001 . . . plaintiffs filed suit against the Board, and [the Trust Defendants]. Plaintiffs alleged (1) a negligent personal injury claim against the Board on the part of Nicole, (2) a medical expenses claim on the part of Nicole's parents against the Board, (3) declaratory judgment that immunity had been waived through (a) participation in the trust and (b) the payment of property damages, (4) unfair and deceptive trade practices against all defendants, (5) 42 U.S.C. § 1983 claim . . . and constitutional claims against all defendants, and (6) punitive damages.

Upon motion of the Board, the trial court bifurcated the trial allowing the issues of whether the Board was immune from suit and whether the Board had waived sovereign immunity to be resolved while the other claims were stayed. . . . [T]he trial court granted summary judgment in favor of all defendants on all claims. Plaintiffs appeal[ed.] . . .

In Ripellino I, this Court held, inter alia: (1) the Board waived sovereign immunity to the extent that its insurance policies covered claims in excess of $100,000 and less than $1,000,000; (2) the Board could not use sovereign immunity as a defense against constitutional and 42 U.S.C. § 1983 claims; and (3) the Board was immune from punitive damages claims because it is a governmental entity. Id.

On remand to the trial court after Ripellino I, the Board and the Trust Defendants filed motions for summary judgment for all non-constitutional claims and judgment on the pleadings for claims under 42 U.S.C. § 1983 and the North Carolina Constitution. The trial court entered orders for summary judgment and judgment on the pleadings. Plaintiffs appeal.

I. Summary Judgment as to the Non-Constitutional Claims

Plaintiffs argue the trial court erred by granting the Board's and the Trust Defendants' motions for summary judgment regarding the non-constitutional claims. Summary judgment is appropriate 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 to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005). "In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, taking the non-movant's asserted facts as true, and drawing all reasonable inferences in her favor." Glenn-Robinson v. Acker, 140 N.C.App. 606, 611, 538 S.E.2d 601, 607 (2000). On appeal, we review the granting of a summary judgment motion de novo. Granville Farms, Inc. v. County of Granville, 170 N.C.App. 109, 110-12, 612 S.E.2d 156, 158 (2005).

Plaintiffs specifically argue that the trial court erred by granting the Board's and the Trust Defendants' motions for summary judgment regarding the non-constitutional claims because the plaintiffs presented evidence on all the elements of a negligence claim and sovereign immunity is waived to the extent the Board's insurance policy provides coverage for claims in excess of $100,000 and less than $1,000,000. Plaintiffs additionally contend that their claim is within this monetary range and included in the broad wording of the Trust Agreement, which provides coverage for:

all or part of a Claim made or any civil judgment entered against any of its members . . . when such Claim is made or such judgment is rendered as Damages on account of any act done or omission made . . . in the scope of their duties as members of the local board of education or as employees.

The Board responds the trial court properly granted summary judgment because Exclusion Number 18 in the Coverage Agreement excludes coverage for "any Claim arising out of the ownership, maintenance, operation, use, loading or unloading of any Automobile" and Nicole was hit by a gate while driving an automobile. Plaintiffs contend, however, that the malfunctioning of the gate could have occurred even if Nicole had not been driving a car and the gate would have injured her even if she had been walking or riding a bicycle. We agree with plaintiffs and reverse because the forecast of evidence leaves no material dispute over the fact that plaintiffs' injuries did not "arise out of" the use of an automobile.

Our Supreme Court has held that "the standard of causation applicable to the ambiguous `arising out of' language . . . is one of proximate cause." State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 547, 350 S.E.2d 66, 74 (1986). "Proximate cause is a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed." Mattingly v. North Carolina R.R., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961). Viewing the evidence in the light most favorable to defendants, no material dispute exists as to the proximate cause of plaintiffs' injury. Although defendants argue that plaintiff traveled in a car at the time of the incident, they have failed to show an automobile proximate cause, i.e., any action or omission by plaintiffs' automobile that would have resulted in a person of ordinary prudence foreseeing plaintiffs' injuries. Since there is no automobile proximate cause on these facts, plaintiffs' injury did not fall within the language of Exclusion 18, and we reverse the summary judgment in favor of the Board and remand for entry of summary judgment in favor of plaintiffs. Likewise, because the trial court erred in granting summary judgment in the Board's favor, it also erred in granting summary judgment in the Trust Defendants' favor, whose liability is derivative to the Board's liability. Accordingly, we reverse summary judgment in favor of the Trust Defendants and remand for entry of summary judgment in favor of plaintiffs.

II. Judgment on the Pleadings as to the Constitutional Claims

Plaintiffs argue that the trial court erred in granting judgment on the pleadings in favor of defendants regarding the state constitutional claims and United States constitutional claims under 42 U.S.C. § 1983. "The granting of judgment on the pleadings is proper when there does not exist a genuine issue of material fact, and the only issues to be resolved are issues of law. In reviewing a motion for judgment on the pleadings, [this] court must consider the evidence in the light most favorable to the non-moving party, accepting as true the factual allegations as pled by the non-moving party." Davis v. Durham Mental Health/Dev. Disabilities/Substance Abuse Area Auth., 165 N.C.App. 100, 105, 598 S.E.2d 237, 241 (2004) (citations omitted). Moreover, when reviewing a trial court's granting of a Rule 12(c) motion, this Court considers, "only the pleadings and exhibits which are attached and incorporated into the pleadings[.]" See id., 165 N.C.App. at 104, 598 S.E.2d at 240 (citations omitted).

Plaintiffs argue...