Taylor v. Ashburn

Decision Date16 November 1993
Docket NumberNo. 9221SC1266,9221SC1266
Citation112 N.C.App. 604,436 S.E.2d 276
CourtNorth Carolina Court of Appeals
PartiesJames Quentin TAYLOR, Plaintiff, v. Terry Kenneth ASHBURN, Defendant.

Peebles & Schramm, by Todd M. Peebles, Winston-Salem, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, by Gusti W. Frankel and Dale E. Nimmo, Winston-Salem, for defendant-appellant.

GREENE, Judge.

Terry Kenneth Ashburn (defendant) appeals from the trial court's denial of his motion for summary judgment on the grounds of sovereign immunity and public officers' immunity in James Quentin Taylor's (plaintiff) negligence action against him.

On 25 September 1989, plaintiff was driving a 1983 Audi automobile on Hawthorne Road in Winston-Salem, North Carolina. Around the same time, defendant, a fire engineer, was operating a fire truck owned by the City of Winston-Salem (the City) and was responding to a fire alarm at a high rise housing complex for the elderly. The fire truck driven by defendant had its emergency equipment--siren, flashing lights, and horn--in full operation. At the intersection of Hawthorne Road and Northwest Boulevard, plaintiff's automobile and defendant's fire truck collided.

On 21 January 1992, plaintiff filed a complaint against defendant, alleging that the accident occurring on 25 September 1989 resulted from defendant's negligent operation of the fire truck and caused plaintiff "substantial bodily injury, property loss, loss of income, and other incidental damages." Although plaintiff did not specify anywhere in his complaint whether he was suing defendant in his individual capacity or in his capacity as a fire engineer for the City, plaintiff alleged in paragraph 4 of his complaint that "[d]efendant was operating an emergency vehicle, to wit: a fire truck owned by the City of Winston-Salem and was operating said vehicle with the permission of the City of Winston-Salem in connection with his employment as a fireman and was in the course and scope of his employment and agency."

On 12 March 1992, defendant filed an answer, and on 9 April 1992, defendant filed an amended answer pleading the affirmative defenses of governmental immunity for any claims resulting in damages up to and including $1,000,000, and of immunity from liability for acts committed in the course and scope of defendant's capacity as a public officer. In an affidavit, Bryce A. Stuart, City Manager of Winston-Salem since January 1980, testified that at the time of the accident between plaintiff and defendant, the City had not purchased liability insurance for tort damages up to $1,000,000, but did have in effect excess insurance coverage, subject to a $1,000,000 retention per accident. On 5 October 1992, defendant, based on his affirmative defenses, filed a motion for summary judgment which was denied by the trial court on 29 October 1992.

________

The issue presented by this appeal is whether plaintiff's complaint, which alleges that defendant was operating a fire truck in the course and scope of his employment as a fireman for the City when the accident between plaintiff and defendant occurred, constitutes suing defendant in his official capacity so that he shares in the City's governmental immunity.

Because the grounds for defendant's motion for summary judgment are governmental immunity and public officers' immunity, the denial of defendant's motion is immediately appealable. Corum v. University of North Carolina, 97 N.C.App. 527, 531, 389 S.E.2d 596, 598 (1990), aff'd in part, rev'd in part, and remanded, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664 (1992); see Mitchell v. Forsyth, 472 U.S. 511, 525-26, 105 S.Ct. 2806, 2814-16, 86 L.Ed.2d 411, 424-25 (1985) (denial of substantial claim of absolute immunity, which if successful entitles defendant to immunity from suit rather than mere defense to liability, appealable before final judgment).

To succeed in a summary judgment motion, the movant has the burden of showing, based on pleadings, depositions, answers, admissions, and affidavits, that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56(c) (1990); Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992). Defendant may meet this burden by showing either (1) an essential element of the non-movant's claim is nonexistent, (2) the non-movant cannot produce evidence to support an essential element of his claim, or (3) the non-movant cannot surmount an affirmative defense which would bar his claim. Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

Under the doctrine of governmental immunity, a municipality is not liable for the torts of its officers and employees if the torts are committed while they are performing a governmental function, Herndon v. Barrett, 101 N.C.App. 636, 640, 400 S.E.2d 767, 769 (1991); Wiggins v. City of Monroe, 73 N.C.App. 44, 49, 326 S.E.2d 39, 43 (1985), which includes the organization and operation of a fire department. Great American Ins. Co. v. Johnson, 257 N.C. 367, 370, 126 S.E.2d 92, 94 (1962). Any city may, however, waive its immunity from civil tort liability by purchasing liability insurance. N.C.G.S. § 160A-485 (1987). The City purchased liability insurance for claims in excess of $1,000,000 and since July, 1988, has been self-insured through the City's Risk Acceptance Management Corporation for claims of $1,000,000 or less. The parties do not dispute and we therefore accept in this case that the City has not waived its governmental immunity for claims of $1,000,000 or less. See Blackwelder v. City of Winston-Salem, 332 N.C. 319, 321-22, 420 S.E.2d 432, 434-35 (1992) (self-funding claims program identical to the one in this case does not waive immunity for claims of $1,000,000 or less).

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