Appeal by plaintiff from order entered 15 March 2000 by Judge
Steve A. Balog in Orange County Superior Court. Heard in the Court
of Appeals 29 March 2001.
Pulley, Watson, King & Lischer, P.A., by Tracy K. Lischer and
F. Edward Kirby, Jr., for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, by Burley B. Mitchell, Jr.,
Robert H. Sasser, III, and Mark A. Davis, for defendant-
appellee Orange County.
MARTIN, Judge.
Plaintiff brought this action seeking damages for physical and
emotional injuries sustained after she was brutally attacked and
raped in a restroom at the Orange County Courthouse in
Hillsborough, North Carolina on 14 September 1998. In her
complaint, plaintiff alleged that defendant Rodney Jenkins followed
her into a women's restroom at the courthouse, locked the door from
the inside and, armed with a small knife, repeatedly raped,stabbed, and beat her. Plaintiff alleged claims against Jenkins
for assault and battery and false imprisonment; as to defendant
Orange County (“defendant County”), plaintiff alleged a breach of
duty to use reasonable care to protect lawful visitors against the
reasonably foreseeable criminal acts of third parties while on the
courthouse premises. The complaint also alleged defendant County
had waived its governmental immunity through the purchase of
liability insurance. Due to the nature of the case, and with
defendant County's consent, plaintiff was permitted to proceed
through the use of a pseudonym. Defendant County filed an answer
in which it denied negligence and asserted, as an affirmative
defense, governmental immunity “[t]o the extent that Orange County
has not waived its sovereign immunity through the purchase of
liability insurance.”
Defendant County moved for judgment on the pleadings, based
upon the public duty doctrine, and for summary judgment, based on
the defense of governmental immunity. The motion for summary
judgment was supported by the affidavit from the County's Director
of Purchasing and Central Services, attached to which was a copy of
the liability insurance coverage contract issued to defendant
County by the North Carolina Counties Liability and Property
Insurance Pool, which was in effect on the date of the occurrence.
The policy contained the following exclusion:
E. Exclusions Applicable to General Liability
This coverage does not apply to any of the
following:
. . .
15. Errors and Omissions to any liab
ility for any actual or alleged
error, misstatement, or misleading statement,
act, or omission, or neglect or breach of duty
by the Participant, or by any other person for
whose acts the Participant is legally
responsible arising out of the discharge of
duties as a political subdivision or a duly
elected or appointed member or official
thereof.
In response, plaintiff submitted, inter alia, affidavits from two
experts in insurance-related issues in which the affiants stated
their opinions that the exclusion was inapplicable to plaintiff's
claim.
The trial court granted defendant County's motions for
judgment on the pleadings and for summary judgment based on
sovereign immunity and dismissed plaintiff's claims against
defendant County. The trial court certified its order as a final
judgment pursuant to G.S. § 1A-1, Rule 54(b). Plaintiff appeals.
_______________
Plaintiff contends the trial court erred in granting defendant
County's motions for judgment on the pleadings and for summary
judgment. She argues that the basis of her claim against defendant
County is premises liability, rather than the public duty of
providing police protection, so that judgment on the pleadings
based upon application of the public duty doctrine was error. In
addition, she contends defendant County's purchase of liability
insurance coverage waived the County's sovereign immunity, so that
summary judgment on the basis of immunity was also error.
[1]With respect to plaintiff's first argument, this Court has
recently addressed the issue of the applicability of the public
duty doctrine to a county's duty to provide security at premiseswhich it owns and maintains. In
Wood v. Guilford County, 143 N.C.
App. 507, 546 S.E.2d 641 (2001) we held that because the defendant
county was not acting in its law enforcement capacity in providing
security at the county courthouse, but rather was acting as the
owner and operator of the premises, the county could not invoke the
public duty doctrine as a defense against charges that it failed to
protect the plaintiff from an attempted sexual assault at the
courthouse. Accordingly, judgment on the pleadings in the instant
case, based on the defense of the public duty doctrine, was error.
Id.
[2]With respect, however, to plaintiff's argument that
defendant County has waived its sovereign immunity, we conclude the
plain language of the insurance policy excludes coverage for the
negligent acts alleged by plaintiff so that defendant County's
purchase of insurance did not operate to waive its sovereign
immunity for the claim asserted by plaintiff. We must, therefore,
affirm the trial court's grant of summary judgment based on
sovereign immunity.
This case involves no novel principles of law; it is
determined by application of well-established rules of law in North
Carolina. Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to
judgment as a matter of law.”
Meares v. Jernigan, 138 N.C. App.
318, 320, 530 S.E.2d 883, 885 (2000); N.C. Gen. Stat. § 1A-1, Rule
56(c) (1999). The moving party has the burden of establishing thatno genuine issue of material fact exists, and can meet the burden
by proving that the opposing party “'cannot surmount an affirmative
defense which would bar the claim.'”
Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)
(quoting
Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 376
S.E.2d 425 (1989)).
Sovereign immunity bars claims brought against the state or
its counties, “where the entity sued is being sued for the
performance of a governmental, rather than a proprietary,
function.”
Messick v. Catawba County, 110 N.C. App. 707, 714, 431
S.E.2d 489, 493,
disc. review denied, 334 N.C. 621, 435 S.E.2d 336
(1993) (citing
Robinson v. Nash County, 43 N.C. App. 33, 35, 257
S.E.2d 679, 680 (1979)). A county may, however, waive such
immunity through the purchase of liability insurance. N.C. Gen.
Stat. § 153A-435 (“Purchase of insurance pursuant to this
subsection waives the county's governmental immunity, to the extent
of insurance coverage, for any act or omission occurring in the
exercise of a governmental function”). But “[i]mmunity is waived
only to the extent that the [county] is indemnified by the
insurance contract for the acts alleged.”
Davis v. Messer, 119
N.C. App. 44, 61-62, 457 S.E.2d 902, 913,
disc. review denied, 341
N.C. 647, 462 S.E.2d 508 (1995) (citation omitted). Defendant
County acknowledges its purchase of liability insurance in this
case, but contends it does not provide coverage for the claim
asserted by plaintiff due to the exclusion contained in the
coverages contract.
“Counties, like cities, exist solely as political subdivisionsof the State and are creatures of statute.&#
148;
Davidson County v.
City of High Point, 321 N.C. 252, 257, 362 S.E.2d 553, 557 (1987).
The obligation of a county in this State to provide and maintain
courthouses for the conducting of judicial proceedings is a duty
imposed by statute. N.C. Gen. Stat. § 7A-302. Our Supreme Court
has determined that “activities held to be governmental functions
. . . are those historically performed by the government, and which
are not ordinarily engaged in by private corporations.”
Sides v.
Cabarrus Memorial Hospital, Inc., 287 N.C. 14, 23, 213 S.E.2d 297,
303 (1975) (citation omitted). Thus, the operation of the Orange
County Courthouse must be viewed as a governmental function of
defendant County acting in its role as a political subdivision.
Accordingly, sovereign immunity would apply to bar plaintiff's
claim in the absence of a waiver by defendant.
If an insurance policy is not ambiguous, “then the court must
enforce the policy as written and may not remake the policy under
the guise of interpreting an ambiguous provision.”
Nationwide Mut.
Ins. Co. v. Mabe, 342 N.C. 482, 492, 467 S.E.2d 34, 40 (1996)
(citing
Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276
N.C. 348, 354, 172 S.E.2d 518, 522 (1970)). The language of the
exclusion in the present case unambiguously limits the coverage
provided by the coverages contract. Relevant to plaintiff's
complaint, the exclusion states explicitly that “coverage does not
apply to . . . any liability for . . . neglect or breach of duty .
. . arising out of the discharge of duties as a political
subdivision . . . .” Plaintiff contends the heading “Errors andOmissions” has a technical meaning connoting a specific type
of
coverage which does not apply to exclude coverage in the instant
case. Although our courts have not addressed this precise issue,
other courts have stated that “[a]n insured is not entitled to read
only the heading and ignore the operative language of the provision
itself.”
Town of Wallingford v. Hartford Acc. and Indem. Co., 649
A.2d 530, 533 (fn. 4) (Conn. 1994) (citation omitted). In this
case the language of the applicable provision of the coverage
contract relied upon by defendant County excludes coverage for the
conduct of which plaintiff complains and we are bound to read, and
give effect to, each word in the insurance policy.
Wachovia Bank
& Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E.2d
518 (1970). Accordingly, because the insurance policy does not
indemnify defendant against the negligent acts alleged in
plaintiff's complaint, defendant has not waived its sovereign
immunity and the trial court's grant of summary judgment must be
affirmed.
Judgment on the pleadings is reversed.
Summary judgment is affirmed.
Judges BIGGS and JOHN concur.
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