Vester by Carlisle v. Nash/Rocky Mount Bd. of Educ.

• Decision Date: 05 November 1996
• Docket Number: No. COA95-1355,COA95-1355
• Citation: 477 S.E.2d 246,124 N.C.App. 400
• Court: North Carolina Court of Appeals
• Parties: , 113 Ed. Law Rep. 1324 Christopher Thomas VESTER, by his Guardian ad Litem, Sam Q. CARLISLE, II and Thomas H. Vester, Plaintiffs-Appellants, v. NASH/ROCKY MOUNT BOARD OF EDUCATION, Defendant-Appellee.

Page 246

477 S.E.2d 246

124 N.C.App. 400, 113 Ed. Law Rep. 1324

Christopher Thomas VESTER, by his Guardian ad Litem, Sam Q CARLISLE, II and Thomas H. Vester, Plaintiffs-Appellants, v. NASH/ROCKY MOUNT BOARD OF EDUCATION, Defendant-Appellee.

No. COA95-1355.

Court of Appeals of North Carolina.

Nov. 5, 1996.

Anderson & Anderson by Michael J. Anderson, Raleigh, for plaintiffs-appellants.

Valentine, Adams, Lamar, Etheridge, Sykes & Britt, L.L.P. by L. Wardlaw Lamar, Nashville, for defendant-appellee.

JOHNSON, Judge.

On 26 May 1993, plaintiff Christopher Thomas Vester, a fourteen-year-old student of Southern Nash Junior High School in Spring Hope, North Carolina, rode on a school bus driven by Warnita Alston. Chris and several of the other students on the bus started passing one of the student's hat back and forth. As Chris passed the hat, the hat flew out of the bus window. Shortly thereafter, it is alleged that Braxton Gilliam grabbed Chris, and Martez Scott struck Chris in the stomach. Defendant Board of Education alleges that the horseplay on the moving school bus was in violation of school bus safety rules and school policy.

Plaintiffs allege that prior to 26 May 1993, Ms. Alston had "a lot of trouble" with Martez Scott. Plaintiffs also allege that Ms. Alston reported Martez to the principal many times for a variety of discipline problems, including hitting other students. Martez was suspended from riding the bus a few times, but more often than not, no disciplinary action was taken. Other students were afraid and uneasy when they were around Martez. Defendant answered plaintiffs' complaint admitting that on two prior occasions, Ms. Alston had reported Martez for inappropriate action on the school bus--throwing objects (broken pencils and thumbtacks), and striking other students with the objects and causing a potential hazard. For each such incident, W. Thomas Finch, assistant principal of Southern Nash Senior High School, suspended Martez from riding on the bus for five days.

Defendant alleges that while Martez had some discipline problems, the bus driver did not have "a lot of trouble" with him and did not report him to the principal "many times" as alleged by plaintiffs. There were no disciplinary actions or reports of violence concerning Martez. Defendant also denied having any knowledge that other students were afraid of Martez. Moreover, defendant adds that for the thirty-one (31) year period prior to the injury to Chris Vester, there were no serious injuries resulting from an assault on a school bus operated by defendant.

As a result of the assault, Chris Vester suffered a ruptured spleen which resulted in a splenectomy. He also incurred medical and other expenses. Additionally, Thomas H. Vester, Chris' father, incurred medical expenses as a result of the injuries sustained by his son.

Plaintiffs filed an action for personal injuries and resulting damages suffered by Chris Vester and for damages suffered by his father, Thomas H. Vester. Defendant filed a motion to dismiss, an answer, a motion for summary judgment and affidavits. At the hearing on the motions, the parties agreed that the hearing was limited to defendant's motion to dismiss for lack of jurisdiction over the person and subject matter, for failure to state a claim, for failure to join a necessary party and for summary judgment based on sovereign immunity. Subsequently, the trial court dismissed plaintiffs' action on the basis that defendant was immune from prosecution and that no jurisdiction over the person existed. Plaintiffs' appeal.

Plaintiffs argue that the trial court erred by dismissing their action because defendant waived its sovereign immunity by purchasing insurance. We disagree.

Plaintiffs first contend that defendant waived its sovereign immunity by its purchase of liability insurance. Thus, we must determine whether plaintiffs have a viable claim in light of the exclusion in defendant's insurance policy for actions arising from the ownership, maintenance, operation, use, loading or unloading of an automobile.

The Nash/Rocky Mount Board of Education purchased liability insurance from the North Carolina School Boards Insurance Trust, Agreement # 92/93-EOGL-640. This policy provides general liability insurance for "the Ultimate Net Loss resulting from any Claim or Claims ... for any Personal Injuries ... [or] for any Wrongful Act ... of the Member or any other person for whose actions the Member is legally responsible ... [.]" An exclusion set out in the policy provides that "Coverage Agreement does not apply: ... 25. To any Claim arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile." (emphasis added). "Automobile," as defined in the policy, "means a land motor vehicle, trailer or semitrailer designed for travel on public roads but does not include mobile equipment." For purposes of the policy, the school bus is an automobile.

The injuries allegedly sustained in this action were sustained by a student engaged in behavior "while being transported by a school bus." Thus, the alleged negligent act, the assault, occurred while the student was being transported by the school bus. Therefore, the issue is whether the assault arose out of the ownership, maintenance, operation, use, loading or unloading of the bus.

Plaintiffs argue that the exclusion is...