Immunity_sovereign_negligent building inspection
Building inspectors are not law enforcement officers and defendant's purchase of liability
insurance covering law enforcement officers did not serve to waive its sovereign immunity for
claims of negligent building inspection. Moreover, exclusions for property damage claims have
been held to include claims of damage from negligent inspection.
Brown Queen Patten & Jenkins, PA, by Frank G. Queen, for
plaintiffs-appellants.
Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan,
Jr., for defendant-appellee.
LEVINSON, Judge.
Plaintiffs (Michael and Michele Kennedy) appeal from an order
granting summary judgment in favor of defendant Haywood County. We
affirm the trial court.
Plaintiffs filed an amended complaint against defendant on 17
March 2000, alleging that they had hired Hart Construction Company
(Hart) to build a house on plaintiff's property, and that Hart
failed “generally to complete and/or properly construct the
dwelling and its load-bearing and structural elements.” Plaintiffs
alleged negligence on the part of defendant in issuing Hart a
building permit; in its inspections of the construction; and in
issuing a certificate of compliance. Plaintiffs alleged thatdefendant's negligence in failing to assure Hart's compliance with
applicable building and construction codes had proximately caused
damage to plaintiffs, in that their house was not structurally
sound and had required substantial sums to “attempt to correct or
at least ameliorate” the problems with the building.
On 12 June 2000, the case was transferred to superior court.
Defendant moved for summary judgment on 5 January 2001, on the
grounds that defendant was entitled to governmental immunity. On
22 February 2002 the trial court granted summary judgment for
defendant on “each and every claim asserted by Plaintiff.” From
this order, plaintiffs appeal.
Plaintiffs appeal from an order granting summary judgment.
Summary judgment is properly granted 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 a
judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2001);
Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 447, 579
S.E.2d 505, 507 (2003). “The party moving for summary judgment
bears the burden of establishing that there is no triable issue of
material fact.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681,
565 S.E.2d 140, 146 (citing Nicholson v. American Safety Utility
Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997)). The moving
party can meet this burden “by proving that an essential element of
the opposing party's claim is nonexistent, or by showing through
discovery that the opposing party cannot produce evidence to
support an essential element of his claim or cannot surmount anaffirmative defense which would bar the claim.” Collingwood v.
G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427
(1989). In the instant case, defendant raised the affirmative
defense of sovereign immunity.
“'As a general rule, the doctrine of governmental, or
sovereign immunity bars actions against, inter alia, the state, its
counties, and its public officials sued in their official
capacity.'” Herring v. Winston-Salem/Forsyth County Bd. of Educ.,
137 N.C. App. 680, 683, 529 S.E.2d 458, 461 (quoting Messick v.
Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493
(1993)), disc. review denied, 352 N.C. 673, 545 S.E.2d 423 (2000)
(citation omitted). “The common law doctrine of sovereign immunity
generally protects states and their political subdivisions, such as
county governments, from suit for damages for tort liability based
on performance of governmental functions.” Norton v. SMC Bldg.,
156 N.C. App. 564, 566-67, 577 S.E.2d 310, 313 (2003).
Pursuant to N.C.G.S. § 153A-435 (2001), a county may waive its
sovereign immunity by purchasing liability insurance:
A county may contract to insure itself and any
of its officers, agents, or employees against
liability[.] . . . The board of commissioners
shall determine what liabilities and what . .
. employees shall be covered by any insurance
purchased[.] . . . Purchase of insurance . . .
waives the county's governmental immunity, to
the extent of insurance coverage[.] . . . By
entering into an insurance contract with the
county, an insurer waives any defense based
upon the governmental immunity of the county.
N.C.G.S. § 153A-435(a) (2001) (emphasis added). However, “[w]aiver
of sovereign immunity may not be lightly inferred and State
statutes waiving this immunity, being in derogation of thesovereign right to immunity, must be strictly construed.” Guthrie
v. State Ports Authority, 307 N.C. 522, 537-538, 299 S.E.2d 618,
627 (1983) (citation omitted).
In the case sub judice plaintiffs contend that defendant
waived its sovereign immunity by purchasing liability insurance
that covers their claims of negligent building inspection.
Plaintiff argues that defendant's building inspectors are “law
enforcement officers,” and thus are covered by the Law Enforcement
Coverage part of defendant's Professional Liability policy. We
disagree.
Plaintiffs base their argument that building inspectors are
law enforcement officers on the provisions of N.C.G.S. § 153A-352
(2001), directing local building inspectors “to enforce within the
county's territorial jurisdiction State and local laws and local
ordinances and regulations relating to . . . [t]he construction of
buildings[,]” and stating that their duties include “bringing
judicial actions against actual or threatened violations, . . . [of
building construction] laws and ordinances and regulations.”
However, a building inspector's authority to, e.g., issue an order
to stop construction of a building, does not transform a county
building inspector into a law enforcement officer. Building
inspectors have no authority to issue arrest warrants or other
criminal process; are not certified law enforcement officers as
provided in N.C.G.S. § 17C; do not take the oath required of law
enforcement officers under N.C.G.S. § 11-11; and are not charged
with providing police protection or enforcing criminal laws. Moreover, the North Carolina Supreme Court has previously indicated
that building inspectors are not law enforcement officers:
This Court has not heretofore applied the
public duty doctrine to a claim against a
municipality or county in a situation
involving any group or individual other than
law enforcement. After careful review of
appellate decisions on the public duty
doctrine in this state and other
jurisdictions, we conclude that the public
duty doctrine does not bar this claim against
Lee County for negligent inspection of
plaintiffs' private residence.
Thompson v. Waters, 351 N.C. 462, 465, 526 S.E.2d 650, 652 (2000)
(emphasis added). In Thompson, the Court held that (1) the public
duty doctrine was applicable only to law enforcement officers, and
(2) that it was not applicable to county building inspectors. We
hold, therefore, that county building inspectors are not law
enforcement officers. For this reason, defendant's purchase of
liability insurance covering law enforcement officers did not serve
to waive its sovereign immunity as regards claims of negligent
building inspection.
Moreover, defendant's insurance policy specifically excludes
claims “for loss, damage to or destruction of any tangible
property, or the loss of use thereof[.]” In Norton v. SMC Bldg.,
156 N.C. App. 564, 577 S.E.2d 310 (2003), the plaintiff brought an
action for damages based on defendant-county's negligent building
inspection. This Court considered an identical provision in the
county's liability insurance and held:
The words used in the exclusionary provision
at issue here are non-technical and there is
no evidence or assertion that they were
intended to have a special meaning. . . .
[T]he American Heritage Dictionary defines
'damage' as 'harm or injury to property . . .,resulting in loss of value or the impairment
of usefulness.' American Heritage Dictionary
of the English Language, 4th Ed. (2000). The
disputed exclusionary provision is not
ambiguous and, when construed and enforced
according to its plain meaning, it clearly
encompasses the construction defects
plaintiffs allege resulted from the County's
negligent building inspection.
Norton, 156 N.C. App. at 569-70, 577 S.E.2d at 314 (emphasis
added). We conclude that the holding of Norton _ that the
insurance policy exclusion of claims for property damage applies to
claims of damage resulting from negligent inspection by county
building inspectors _ controls the outcome of the present case.
Accordingly, we hold that the trial court did not err by granting
summary judgment for defendant, and that the trial court's order is
Affirmed.
Judges McGEE and McCULLOUGH concur.
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