Williams v. Holsclaw

• Citation: 495 S.E.2d 166,128 N.C.App. 205
• Decision Date: 06 January 1998
• Docket Number: No. COA96-1534,COA96-1534
• Court: Court of Appeal of North Carolina (US)
• Parties: Michael Anthony WILLIAMS and Katherine Williams, Plaintiffs, v. Ronald Floyd HOLSCLAW and City of Raleigh, Defendants.

Page 166

495 S.E.2d 166

128 N.C.App. 205

Michael Anthony WILLIAMS and Katherine Williams, Plaintiffs, v. Ronald Floyd HOLSCLAW and City of Raleigh, Defendants.

No. COA96-1534.

Court of Appeals of North Carolina.

Jan. 6, 1998.

Fuller, Becton, Slifkin & Bell by James C. Fuller, Asa L. Bell, Jr., and Maria J. Mangano, Raleigh, for plaintiff-appellants.

Raleigh City Attorney Thomas A. McCormick by Associate City Attorney Dorothy K. Woodward, Raleigh, for defendant-appellees.

Law Offices of Robert E. Ruegger by Robert E. Ruegger, Raleigh, for unnamed defendant-appellee Integon Indemnity Corporation.

Glenn, Mills & Fisher, P.A. by Stewart W. Fisher, amicus curiae, Durham, for North Carolina Academy of Trial Lawyers.

MARK D. MARTIN, Judge.

Plaintiffs appeal from orders granting summary judgment to defendants Ronald Holsclaw (Officer Holsclaw) and the City of Raleigh (collectively the municipal defendants) and dismissing unnamed defendant Integon Indemnity Corporation (Integon).

On 13 November 1994 plaintiff Michael Williams (Williams) was involved in an automobile accident with Officer Holsclaw, an on-duty City of Raleigh (City) police officer. Officer Holsclaw, while responding to a call, switched channels on his police radio to monitor the situation. After changing the channel, he saw Williams' vehicle ahead of him but was unable to avoid impact. As a result of this collision, Williams suffered injuries and his automobile was damaged.

On 19 December 1995 Williams and his wife, Katherine, filed suit against the municipal defendants alleging Officer Holsclaw's negligence caused the collision. Defendants answered and alleged the claims were barred by sovereign immunity and public officer immunity. Plaintiffs then served the uninsured motorist carrier, unnamed defendant Integon.

On 18 July 1996 Integon filed a motion to dismiss pursuant to North Carolina Rule of Civil Procedure 12(b)(6). On 9 August 1996 the municipal defendants filed a motion for summary judgment. On 4 October 1996 the trial court granted the municipal defendants' motion for summary judgment on the grounds of governmental immunity and public officers' immunity. On 24 October 1996 the trial court granted Integon's motion to dismiss. Specifically, as plaintiffs were legally prevented from recovering against the municipal defendants, Williams' uninsured motorist (UM) carrier, Integon, was also shielded from liability under the UM statute.

On appeal, plaintiffs contend the doctrine of sovereign immunity does not shield the municipal defendants from liability.

"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." Taylor v. Ashburn, 112 N.C.App. 604, 607, 436 S.E.2d 276, 278 (1993), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994). Law enforcement is well established as a governmental function. Hare v. Butler, 99 N.C.App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990).

Officer Holsclaw was performing his official duties as a police officer when he responded to a call at the time of the collision. Therefore, the City and Officer Holsclaw, in his official capacity, are generally immune from suit under the governmental immunity doctrine. Taylor, 112 N.C.App. at 607, 436 S.E.2d at 279 (police officers, as public officers, share in the immunity of their governing municipalities).

A municipality may waive immunity, however, by purchasing liability insurance or by joining a local government risk pool. N.C.Gen.Stat. § 160A-485 (1994); Combs v. Town of Belhaven, 106 N.C.App. 71, 73, 415 S.E.2d 91, 92 (1992) (discussing the purchase of insurance). The municipality generally retains civil tort liability immunity to the extent it does not participate in a local governmental risk pool or purchase liability insurance. N.C.Gen.Stat. § 160A-485 (1994).

The record in the instant action indicates the City purchased liability insurance for claims between $1,000,000 and $10,000,000, but is wholly uninsured for claims under or above this range. Because plaintiffs seek damages less than $1,000,000, immunity has not been waived and the City and Officer Holsclaw, in his official capacity, are entitled to summary judgment.

Although Officer Holsclaw is immune from suit in his official capacity, we must still determine whether he can be held personally liable in his individual capacity. Our Supreme Court recently noted, "[the] crucial question for determining whether a defendant is sued in an individual or official capacity is the nature of the relief sought, not the nature of the act or omission alleged." Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997) (quoting Anita R. Brown-Graham & Jeffrey S. Koeze, Immunity from Personal Liability under State Law for Public Officials and Employees: An Update, Loc. Gov't L. Bull. 67, at 7 (Inst. of Gov't, Univ. of N.C. at Chapel Hill), Apr. 1995).

If money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant. If the former, it is an official-capacity claim; if the latter, it is an individual-capacity claim; and if it is both, then the claims proceed in both capacities.

Id.

The caption of the present complaint is silent as to whether Officer Holsclaw is sued in his official or individual capacity. Plaintiffs do indicate, however, they are seeking monetary damages from both the City and Officer Holsclaw. As a result, plaintiffs are seeking recovery from Officer Holsclaw in both his individual and official capacities.

It is undisputed that Officer Holsclaw is a public official. See Jones v. Kearns, 120 N.C.App. 301, 305, 462 S.E.2d 245, 247, disc. review denied, 342 N.C. 414, 465 S.E.2d 541 (1995). " 'As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority and acts without malice or corruption, he is protected from liability.' " Collins v. North Carolina Parole Commission, 344 N.C. 179, 183, 473 S.E.2d 1, 3 (1996)(quoting Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976)).

After careful review of the record, we conclude Officer Holsclaw's actions fall within the scope of his official discretion as a police officer. In addition, plaintiffs do not advance allegations of corruption or malice. Accordingly, summary judgment was properly granted in favor of Officer Holsclaw in his individual capacity.

Plaintiffs alternatively contend that Integon, as Williams' UM carrier, should not benefit from the defense of governmental and public officer immunity, and, consequently, should be obligated to provide UM coverage to Williams. We agree.

The UM statute, N.C.Gen.Stat. 20-279.21(b)(3), states, in broad, declaratory terms, "[n]o policy of bodily injury liability insurance ... shall be delivered or issued for delivery in this State ... unless coverage is provided therein or supplemental thereto ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles...." (emphasis added).

According to Brown v. Lumbermens Mutual Casualty Co., 285 N.C. 313, 319, 204 S.E.2d 829, 834 (1974), a plaintiff's right to recover against his insurer under the UM endorsement is derivative and conditional on plaintiff being legally entitled to recover against the tortfeasor.

Because Officer Holsclaw was immune from suit and plaintiffs were therefore not legally entitled to recover, the trial court dismissed plaintiffs' claims against Integon. Notwithstanding the "legally entitled to recover" restriction imposed by section 20-279.21, plaintiffs submit that Integon should be responsible for payment under its UM policy with Williams.

The "legally entitled to recover" restriction was first reviewed in Brown, a wrongful death action where plaintiff did not file his complaint against the tortfeasor within the statute of limitations. In determining the UM carrier was not liable, the Supreme Court noted

[t]o be "legally entitled to recover damages", a plaintiff must not only have a cause of action but a remedy by which he can reduce his right to damage to judgment.... Plaintiff's right to recover against his intestate's insurer under the uninsured motorist endorsement is derivative and conditional.... Any defense available to the uninsured tortfeasor should be available to the insurer. The argument that a plea of the statute of limitations is personal to the tortfeasor and not available to the insurance company flies in the face of the policy.

Brown, 285 N.C. at 319-320, 204 S.E.2d at 833-834.

Subsequent North Carolina cases have strictly interpreted the "legally entitled to recover" language. For example, in Spivey v. Lowery, 116 N.C.App. 124, 446 S.E.2d 835 (1994), an underinsured motorist (UIM) coverage case, plaintiff's general release of the tortfeasor barred any claim against the carrier. In reaching this conclusion, the Spivey court reaffirmed the rule that an insurance carrier's liability is derivative of the tortfeasor's liability. Id. at 128, 446 S.E.2d at 838.

Similarly, in Grimsley v. Nelson, 342 N.C. 542, 467 S.E.2d 92, reh'g denied, 343 N.C. 128, 468 S.E.2d 774 (1996), plaintiffs' complaint was dismissed where they failed to properly serve the alleged tortfeasor. The Court affirmed the dismissal of plaintiffs' UM carrier because its only obligation was to pay any potential judgment against the defendant, which was no longer possible due to lack of jurisdiction. Id. at 548, 467 S.E.2d at 96.

An exception to strict interpretation of the "legally entitled to recover" restriction was noted in Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 294, 378 S.E.2d 21, 25 (1989), a wrongful death action involving an...