Appeal and Error--appealability--summary judgment--partial sovereign immunity
An appeal from the denial of partial and total summary judgment for defendant-Town in
an action arising from injuries suffered in a park was dismissed where defendant admitted the
purchase of liability insurance in an amount less than that sought by plaintiffs, thereby
establishing the Town's entitlement to only partial immunity. The rationale for allowing
immediate appeal of the denial of summary judgment based upon sovereign immunity is the
entitlement not to have to answer for conduct in a civil damages action, but partial immunity
serves only to limit the damage award and does not operate as a bar to the claim. Appeal by defendant Town of Andrews from order entered 20
August 1998 by Judge Forrest A. Ferrell in Cherokee County
Superior Court. Heard in the Court of Appeals 26 April 1999.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Larry
McDevitt and Michelle Rippon, for plaintiffs-appellees.
Roberts & Stevens, P.A., by Frank P. Graham and Sarah M.
Washburn, for defendant-appellant Town of Andrews.
SMITH, Judge.
This is defendant Town of Andrew's (hereinafter “defendant
town”) second interlocutory appeal in this matter. Those facts
necessary for adjudication of the present appeal are as follows:
Plaintiffs filed this action against defendants seeking damages
from injuries suffered by plaintiff Jessica Sierra Hope Anderson
while visiting a park maintained by defendant Town of Andrews.
Defendant town answered and moved to dismiss various paragraphs
of the complaint under N.C.R. Civ. P. 12(b)(6). Defendant town
also moved to dismiss the entire action under N.C.R. Civ. P.
19(b)(2) and (6) based upon sovereign immunity. When these
motions were denied, defendant town appealed. This Court held
that the trial court had properly denied defendant town's motion
to dismiss the action since the complaint sufficiently alleged
that the town had waived its sovereign immunity. Anderson v.
Town of Andrews, 127 N.C. App. 599, 492 S.E.2d 385 (1997).
Subsequently, defendant town filed a “Request for Statement
of Monetary Relief Sought by Plaintiff.” Plaintiffs responded
that plaintiff Jessica Anderson sought compensatory damages in
the amount of five million dollars for lifetime care, and tenmillion dollars for pain, suffering, and disfigurement. Her
parents, plaintiffs Tammy and Dale Anderson, sought compensatory
damages in the amount of one million dollars for medical
expenses, five hundred thousand dollars each for emotional
distress, and approximately nine thousand dollars in lost wages
to Mrs. Anderson, and approximately twenty-five thousand in lost
wages to Mr. Anderson. Thereafter, defendant town moved for
partial summary judgment as to the issue of sovereign immunity
based upon plaintiffs' statements regarding the monetary relief
sought. Defendant town attached the affidavit of the Mayor of
the Town of Andrews, Jim Dailey, wherein he admitted that the
town “carried a $1 million insurance policy with the Hartford
Insurance carrier[.]” Also attached was an affidavit of Town
Consultant Robert Gardner, which indicated that the pool area was
not open to the public and that no non-governmental activities
were being conducted during the summer of 1994. At the hearing
on the motion, defendant town also moved for total summary
judgment on the ground that plaintiffs have failed to prove an
essential element of their negligence claims. By order entered
20 August 1998, defendant town's motion for partial and total
summary judgment were denied. Defendant purports to appeal from
this order.
It is well-settled that an order denying a motion for
summary judgment is interlocutory, and therefore, is not
generally immediately appealable. Wallace v. Jarvis, 119 N.C.
App. 582, 584, 459 S.E.2d 44, 46, disc. review denied, 341 N.C.
657, 462 S.E.2d 527 (1995). The purpose of this rule is “'toprevent fragmentary, premature and unnecessary appeals by
permitting the trial court to bring the case to final judgment
before it is presented to the appellate courts.'” Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d
252, 253 (1994)(quoting Fraser v. Di Santi, 75 N.C. App. 654,
655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337
S.E.2d 856 (1985)). A party may, however, be entitled to
immediate appellate review, even in instances where the trial
court has not provided certification under N.C.R. Civ. P. 54,
where the order potentially works injury to a substantial right.
Troy v. Tucker, 126 N.C. App. 213, 215, 484 S.E.2d 98, 99
(1997)(citing N.C. Gen. Stat. § 7A-27(d)(1)). This Court has
previously held that “the denial of a summary judgment motion on
the grounds of sovereign and qualified immunity is an exception
to the rule and is immediately appealable.” Davis v. Town of
Southern Pines, 116 N.C. App. 663, 674, 449 S.E.2d 240, 247
(1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995).
In Epps v. Duke University, the Court explained its rationale for
allowing immediate appellate review in such cases: “We allow
interlocutory appeals in these situation because 'the essence of
absolute immunity is its possessor's entitlement not to have to
answer for his conduct in a civil damages action.'” 122 N.C.
App. 198, 201, 468 S.E.2d 846, 849 (citations omitted), disc.
review denied, 344 N.C. 436, 476 S.E.2d 115 (1996). The presence
of such entitlement is noticeably absent in cases involving
partial immunity. Notably, partial immunity “does not operate to
bar [a] plaintiff's claim,” it serves only to limit the damageaward recoverable from a defendant. Wilhelm v. City of
Fayetteville, 121 N.C. App. 87, 90, 464 S.E.2d 299, 301 (1995).
In the instant case, this Court has previously held that
plaintiffs had sufficiently pled waiver of sovereign immunity by
the purchase of liability insurance. Anderson, 127 N.C. App.
599, 492 S.E.2d 385. Moreover, defendant town has admitted to
the purchase of liability insurance in the amount of one million
dollars, thereby establishing defendant town's entitlement to
only partial immunity. As this Court has previously held that
partial immunity only limits the possible award recoverable from
defendant town, and does not bar plaintiffs' claims entirely,
Wilhelm, 121 N.C. App. at 90, 464 S.E.2d at 301, the necessity
for immediate appellate review is lacking in this case.
In sum, since defendant town cannot show the affectation of
a substantial right, this appeal is dismissed.
Dismissed.
Judges GREENE and WALKER concur.
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