Ripellino v. SCHOOL BOARD ASS'N, INC.
| Decision Date | 17 June 2003 |
| Docket Number | No. COA02-1309.,COA02-1309. |
| Citation | 158 NC App. 423,581 S.E.2d 88 |
| Court | North Carolina Court of Appeals |
| Parties | Michael G. RIPELLINO, Louise A. Ripellino and Nicole Ripellino, Plaintiffs, 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. |
Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by Bradley N. Schulz and Don R. Wells, Smithfield, for plaintiffs.
Yates, McLamb & Weyher, LLP, by Barbara B. Weyher, Raleigh, for the Trust defendants.
Cranfill, Sumner & Hartzog, LLP, by Stephanie Hutchins Autry, Raleigh, for Johnston County Board of Education.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jill R. Wilson, Greensboro, for North Carolina Council of School Attorneys, amicus curiae.
Ferguson Stein Chambers Wallas Adkins Gresham & Sumter, P.A., by S. Luke Largess, Charlotte, for North Carolina Academy of Trial Lawyers, amicus curiae.
Michael G. Ripellino, Louise A. Ripellino, and Nicole Ripellino ("Nicole") (collectively "plaintiffs") appeal from an entry of summary judgment in favor of all defendants. We affirm in part, reverse in part, and remand.
At the end of classes on 9 March 1998, 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 ("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 and amended on 6 April 2001, plaintiffs filed suit against the Board, and The North Carolina School Boards Association, Inc., and The North Carolina School Board Trust and its self-funded trusts ("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 (" § 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. Based upon discovery affidavits, plaintiffs requested the deposition of Tom Davis.
On 19 February 2002, the trial court held a hearing regarding plaintiffs' request to depose Davis. At the end of the hearing, the trial court orally ruled that because the trial was bifurcated and there was nothing new to which Davis would be able to testify regarding immunity, plaintiffs would not be permitted to depose Davis.
The hearing on the Board's motion for summary judgment was continued until 8 March 2002. After the hearing, the trial court granted summary judgment in favor of all defendants on all claims. Plaintiffs appeal from both the denial of the request for deposition of Davis and the grant of summary judgment to all defendants on all issues.
Plaintiffs contend the trial court erred in (1) preventing defendant from deposing Davis, (2) granting summary judgment to the Board when the Board waived immunity by purchasing insurance, (3) granting summary judgment for the Board when the Board was estopped from denying payment of the claim, (4) granting summary judgment on the constitutional issues and the § 1983 claims, and (5) granting summary judgment to the Trust defendants.
Plaintiffs contend the trial court erred in denying their request to depose Davis. We disagree.
Rule 56 of the Rules of Civil Procedure provides:
cert. denied, 522 U.S. 824, 118 S.Ct. 82, 139 L.Ed.2d 40 (1997).
Because of the previously bifurcated discovery and trial, the only issues open for discovery and the summary judgment hearing were immunity and waiver of immunity. On appeal, plaintiffs contend that "Davis' deposition is necessary to determine the nature of the Board's interaction with Trust Defendants, as well as the arbitrary payment by the Board of claims." The Board had already provided through discovery a list of claims paid by the Board and that no claims had been paid by the Trust. The trial court did not err in denying plaintiffs' motion for a continuance to depose Davis when they failed to show that new information relevant to the limited issue presented in the summary judgment hearing would be discovered. This assignment of error is overruled.
"As a general rule, the doctrine of governmental, or sovereign immunity bars action against, inter alia, the state, its counties, and its public officials sued in their official capacity." Herring ex rel. Marshall v. Winston-Salem/Forsyth Bd. of Educ., 137 N.C.App. 680, 683, 529 S.E.2d 458, 461,disc. rev. denied, 352 N.C. 673, 545 S.E.2d 423 (2000) (citations omitted). "A local board of education is immune from suit and may not be liable in a tort action unless the Board has duly waived its governmental immunity." Hallman v. Charlotte-Mecklenburg Bd. Of Educ., 124 N.C.App. 435, 437, 477 S.E.2d 179, 180 (1996). The General Assembly has provided a means for a local board of education to waive immunity through N.C. Gen.Stat. § 115C-42 (2001), which provides in 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.
The statute expressly defines how a local board may procure insurance and from whom it may be procured:
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 and shall by its terms adequately insure the local board of education against liability for damages by reason of death or injury to person or property proximately caused by the negligent act or torts of the agents and employees of said board of education or the agents and employees of a particular school in a local administrative unit when acting within the scope of their authority.
(Emphasis supplied). N.C. Gen.Stat. § 115C-42.
N.C. Gen.Stat. § 115C-42 is the exclusive means of a local board of education to waive immunity. Lucas v. Swain County Bd. of Educ., 154 N.C.App. 357, 361, 573 S.E.2d 538, 541 (2002). "The Courts of North Carolina have applied a rule of strict construction to statutes authorizing waiver of sovereign immunity." Hallman, 124 N.C.App. at 438, 477 S.E.2d at 181. As a local board of education, the Board is immune from suit in a tort action unless it waived immunity.
Plaintiffs argue the Board's participation in the North Carolina School Boards Trust ("NCSBT") qualified as a purchase of insurance under N.C. Gen.Stat. § 115C-42 and waived the Board's immunity. We disagree.
Our Court has recently determined that "the only way a plaintiff can establish that a board has waived its immunity is by showing the contract of insurance was issued by (1) an entity licensed and authorized to execute insurance contracts in this State; or (2) a qualified insurer as determined by the Department of Insurance." Lucas, 154 N.C.App. at 361, 573 S.E.2d at 541. Plaintiffs have failed to forecast evidence that NCSBT meets either of these requirements.
The NCSBT provides:
local boards of education the opportunity to budget funds for the purpose of paying all or part of a Claim made or any civil judgment entered against any of its members or employees or former members or employees, when such a Claim is made or such judgment is rendered as Damages on account of any act done or omission made, or any act allegedly...
To continue reading
Request your trial
-
Stevens v. Cabarrus Cnty. Bd. of Educ.
...185 (2007) ; Willett v. Chatham Cnty. Bd. of Educ., 176 N.C.App. 268, 625 S.E.2d 900, 901–02 (2006) ; Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C.App. 423, 581 S.E.2d 88, 92–93 (2003). Stevens has made no response to this. As such, the court cannot conclude that she has alleged a prima facie......
-
Ortiz v. Vance Cnty. Sch.
...654-55, 648 S.E.2d 923, 925-26 (2007), rev'd on other grounds, 363 N.C. 334, 678 S.E.2d 351 (2009); Ripellino 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.App. ......
-
Biggs v. Edgecombe Cnty. Pub. Sch. Bd. of Educ.
...654-55, 648 S.E.2d 923, 925-26 (2007), rev'd on other grounds, 363 N.C. 334, 678 S.E.2d 351 (2009); Ripellino v. 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......
-
J.W. v. Johnston Cnty. Bd. of Educ.
...Willett v. Chatham Cnty. Bd. of Educ., 176 N.C. App. 268, 269, 625 S.E.2d 900, 901-02 (2006); Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 428-29, 581 S.E.2d 88, 92-93 (2003); Lucas, 154 N.C. App. at 361-62, 573 S.E.2d at 540-41. Accordingly, the Board's participation in the NCSBT ......