Bass v New Hanover County Bd. of Educ., (02-978) 06/03/2003

Appeal by plaintiff from order entered 3 April 2002 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 17 April 2003.

    Culbreth Law Firm, by Stephen E. Culbreth, for plaintiff appellant.

    Hogue, Hill, Jones, Nash & Lynch, by Wayne A. Bullard, for defendant appellees.

            Yates McLamb & Weyher, L.L.P., by Barbara B. Weyher; and Allison Schafer for N.C. School Boards Association, amicus curiae.

    McCULLOUGH, Judge.

    Plaintiff Christine M. Bass was employed as a teacher by the New Hanover County school system in 1998. On 21 April 2001, plaintiff was teaching a class at E.A. Laney High School when a female student in the hallway became extremely disruptive. Plaintiff left her class, went out into the hallway, and asked the girl to quiet down. According to plaintiff, the student began physically and verbally assaulting her, and teacher's assistant KayCarlton and student Stephen Kaman had to come into the hallway to assist plaintiff. Kaman physically restrained the student to prevent her from continuing her attack on plaintiff. As the student was being escorted to Principal Maryann Nunnally's office, she began screaming that plaintiff had slapped her face. She repeated this accusation to other school officials and to the New Hanover County Sheriff's Deputy assigned to the school. Both Ms. Carlton and Mr. Kaman stated they never saw plaintiff strike the student.
    Principal Nunnally told plaintiff that she feared there would be racial tension within the student body because plaintiff was white and the student was black. Ms. Nunnally stated that her apprehension of racial tension, coupled with the student's irrational behavior, caused her to be concerned for plaintiff's safety, as well as the safety of plaintiff's son, who was a student at Laney High School. Soon after speaking with plaintiff, Ms. Nunnally asked the sheriff's deputy to escort plaintiff and her son off the campus. Plaintiff and her son were not allowed to return to campus for several days, though plaintiff was never suspended or otherwise disciplined for the 21 April incident. However, the New Hanover County Board of Education's (the Board) public information officer reported to various media sources that plaintiff was suspended because she engaged in a “fight” with a student.
    On 1 March 2001, plaintiff filed a complaint alleging negligence, negligent infliction of emotional distress, and possibly defamation. On 2 May 2001, defendants answered, deniedliability, and asserted a number of affirmative defenses, including official, governmental, and sovereign immunity; the statute of limitations as to any claim of defamation; truth; contributory negligence; and intervening and superceding causation. On 5 July 2001, defendants served plaintiff with their First Set of Interrogatories and Request for Production of Documents. Plaintiff requested and received an extension of time, which gave her until 4 September 2001 to file her responses. Plaintiff did not respond by that date, and on 18 September, defendants wrote to plaintiff's attorney and requested that the responses be filed. When no response was filed, defendants filed a Motion To Compel discovery on 23 October. When plaintiff finally provided a response on 29 October, defendants believed her answers were incomplete and inadequate.
    On 7 November 2001, the trial court entered a consent order wherein plaintiff agreed to serve complete supplemental responses to several of the interrogatories and to produce the requested documents no later than 21 November 2001. On 11 December 2001, defendants moved for sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 37 (2001) because plaintiff failed to comply with the consent order. On 8 January 2002, the trial court entered an order finding that plaintiff “clearly failed to comply with the Court's Order Compelling Discovery” and granted defendants' motion for sanctions in part. Specifically, the trial court's order gave plaintiff thirty days from the date of the order to fully comply with the 7 November 2001 consent order, and ordered that plaintiff paydefendants a reasonable attorney's fee of $1,000.00 within sixty days of entry of the order. On 19 March 2002, defendants moved for summary judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001) and based their motion on governmental immunity for all claims asserted against the Board and Ms. Nunnally in her official capacity, official immunity for all claims asserted against Ms. Nunnally in her individual capacity, and the statute of limitations for the possible defamation claim. Defendants' motion for summary judgment was accompanied by supporting affidavits from Ms. Nunnally, Dr. D. John Morris, Jr., the Superintendent of the New Hanover County Schools, and Mr. Edwin Dunlap, Jr., the Treasurer of the North Carolina School Boards Trust (NCSBT). Thereafter, on 3 April 2002, the trial court granted defendants' motion for summary judgment “on the basis of the statute of limitations as to any claim of defamation and on the basis of governmental and official immunity as to all other claims.” Plaintiff appealed.
    On appeal, plaintiff argues the trial court committed reversible error by (I) granting defendants' motion for summary judgment because there was an issue of fact regarding whether the Board purchased liability insurance; and (II) granting defendants' motion for sanctions for failure to produce discovery. For the reasons stated herein, we disagree with plaintiff's arguments and affirm the order of the trial court.
    Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuineissue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c). In making this determination, “the evidence presented by the parties must be viewed in the light most favorable to the non- movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact, which may be satisfied by showing that the party cannot overcome an affirmative defense which would bar the claim. Taylor v. Ashburn, 112 N.C. App. 604, 606-07, 436 S.E.2d 276, 278 (1993), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). “Once the movant has established its right to summary judgment, the non- movant may not rest upon conclusory allegations but must come forward with affidavits showing that a material factual dispute exists.” Pierce Concrete, Inc. v. Cannon Realty & Construction Co., 77 N.C. App. 411, 412, 335 S.E.2d 30, 31 (1985). With this standard of review in mind, we turn to the case before us.

    By her first assignment of error, plaintiff contends the trial court erred by granting defendants' motion for summary judgment because there was an unresolved issue of fact regarding whether the Board purchased liability insurance and therefore waived governmental immunity. We do not agree.
    “[T]he doctrine of governmental, or sovereign, immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity. . . . It isinapplicable, however, where the state has consented to suit or has waived its immunity through the purchase of liability insurance.” Messick v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 492-93, disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). A local board of education, such as the Board in this case, is a governmental agency and is immune from suit and cannot be liable in tort unless it duly waives its governmental immunity. Fields v. Board of Education, 251 N.C. 699, 700, 111 S.E.2d 910, 911 (1960). An effective waiver of immunity is achieved through the purchase of liability insurance pursuant to N.C. Gen. Stat. § 115C-42 (2001), which states, in part:
            Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort.

“Waiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.” Guthrie v. State Ports Authority, 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983). This rule of strict construction has specifically been applied to N.C. Gen. Stat. § 115C-42. See Beatty v. Charlotte- Mecklenburg Bd. of Education, 99 N.C. App. 753, 394 S.E.2d 242(1990). N.C. Gen. Stat. § 115C-42 provides that the contract for insurance “shall be issued by a company or corporation duly licensed and authorized to execute insurance contracts in this State or by a qualified insurer as determined by the Department of Insurance[.]”
    In the present case, the Board was a participant in the NCSBT, a risk management program that was effective from 1 July 2000 to 1 July 2001 and covered wrongful acts or omissions subject to a number of terms and conditions. Pursuant to N.C. Gen. Stat. § 160A-462 (2001), local boards of education have the authority to establish a “joint agency” to administer an undertaking, including a self-insurance program to pay claims and judgments as allowed under N.C. Gen. Stat. § 115C-43 (2001). The NCSBT is such a “joint agency.” Mr. Edwin Dunlap, the Treasurer of the Trust and Executive Director of the North Carolina School Boards Association, signed an affidavit which explained the NCSBT as follows:
            5. The NCSBT is a risk management program that provides a local board of education with the opportunity to budget funds, as provided in N.C. Gen. Stat. § 115C-43(b), for the purpose of paying all or part of a claim made or a civil judgment entered against any of its members or employees, or former members or employees, pursuant to the terms of the trust fund coverage agreement, when such claim is made or such judgment is rendered as damages on account of an act done or omission made, or an act allegedly done or omission allegedly made, in the scope of their duties as members of the local board of education or as employees of the local board of education. The NCSBT does not provide any coverage for any claim that cannot be paid by a local board of education pursuant to N.C. Gen. Stat. § 115C-43 or a successor statute.
            6. The NCSBT is not, and has never been, regulated by the Commissioner of Insurance. The NCSBT is not, and has never been, licensed and supervised by the Commissioner of Insurance, as N.C. Gen. Stat. § 58-2-125 requires all insurance companies to be licensed and supervised. The NCSBT is not, and has never been, a qualified insurer as determined by the Department of Insurance of North Carolina. The NCSBT has never been authorized to execute insurance contracts in North Carolina.

            * * * *

            9. These trust fund coverage agreements, including the New Hanover County agreement referred to above, are not, and have never been, contracts of insurance issued by a company or corporation duly licensed and authorized to execute insurance contracts in North Carolina or by a qualified insurer as determined by the Department of Insurance in North Carolina.

            10. These trust fund coverage agreements, including the New Hanover County agreement referred to above, specifically incorporate the retention of governmental immunity and are not intended to constitute a waiver of governmental immunity by the participating boards of education, as provided in N.C. Gen. Stat. § 115C-42.

    Plaintiff argues the Board's participation in the NCSBT qualified as the purchase of liability insurance under N.C. Gen. Stat. § 115C-42 and effectively waived any governmental immunity the Board previously enjoyed. Recognizing that strict statutory construction applies and that previous cases have made conclusions unfavorable to her position, plaintiff attempts to distinguish Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C. App. 435, 477 S.E.2d 179 (1996), which held that the Charlotte-Mecklenburg Board of Education's participation in an insurance program similarto the NCSBT did not constitute the purchase of insurance and did not waive its governmental immunity. Plaintiff points out that the NCSBT is a statewide program available to all school boards and argues that the North Carolina School Boards Association (which developed, implemented and managed the Trust) attempted to engage in the insurance business without being held to the standards or responsibility of that industry.
    However, upon review of these arguments, we do not believe they are persuasive. As indicated by Mr. Dunlap's affidavit, the NCSBT was never regulated, licensed, or supervised by the Commissioner of Insurance. The NCSBT was never a qualified insurer as determined by the Department of Insurance, and was never authorized to execute insurance contracts in North Carolina. In the absence of contrary evidence, we hold that the Board's participation in the NCSBT “is not tantamount to the purchase of liability insurance as authorized by G.S. § 115C-42 and does not constitute a waiver of its governmental immunity[.]” Hallman, 124 N.C. App. at 439, 477 S.E.2d at 181. As the Board has established the complete defense of governmental immunity, its motion for summary judgment was properly granted by the trial court.
    We further note that Principal Nunnally was granted summary judgment on the basis of governmental and official immunity. Governmental immunity shields the officers or employees of a governmental entity when those individuals are sued in their official capacities for torts committed while performing a governmental function. Taylor v. Ashburn, 112 N.C. App. at 607,436 S.E.2d at 278. “[W]hen an action is brought against individual officers in their official capacities, the action is one against the state for the purposes of applying the doctrine of sovereign immunity.” Whitaker v. Clark, 109 N.C. App. 379, 381-82, 427 S.E.2d 142, 143-44, disc. review denied, cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). In the present case, plaintiff's complaint contained allegations against Ms. Nunnally in her official capacity, rather than her individual capacity. As plaintiff cannot overcome the complete defense of sovereign immunity, summary judgment was properly granted in defendants' favor. Accordingly, plaintiff's first assignment of error is overruled.

    By her second assignment of error, plaintiff contends the trial court erred by granting defendants' motion for sanctions because the motion was unjust and violated N.C. Gen. Stat. § 1A-1, Rule 37(b) (2001). Plaintiff contends she answered defendants' interrogatories and request for documents to the best of her ability; however, a number of the documents were not in her possession and she requested them several times without success. She argues that, because she informed defendants that the documents were not in her possession (through no fault of her own), she was not obstructing or delaying discovery and the sanctions were therefore unwarranted.
    Defendants served their First Set of Interrogatories and First Request for Production of Documents on plaintiff on 5 July 2001. Plaintiff duly obtained an extension of time, which gave her until 4 September 2001 to file her responses. When plaintiff did not respond, defendants sent her a letter on 18 September and requested the responses. On 23 October, defendants filed a Motion To Compel discovery because plaintiff failed to respond. On 29 October, plaintiff provided responses that defendants believed were inadequate and incomplete. On 31 October, defendants informed plaintiff that several of her answers were “insufficient.” On 7 November 2001, the parties went to court for a hearing on defendants' Motion To Compel. Before the hearing, the parties entered into a consent order which required plaintiff to serve complete supplemental responses to several questions and to produce the documents requested by defendants by 21 November 2001. On 11 December, when defendants still had not received the requested information from plaintiff, they filed their motion for sanctions.
    On 8 January 2002, the trial court determined that plaintiff had “clearly failed to comply with the Court's Order Compelling Discovery” and granted defendants' motion in part. Plaintiff was given 30 days from entry of the 8 January 2002 order to fully comply with the trial court's 7 November 2001 order compelling discovery and was ordered to pay defendants' reasonable attorney's fee of $1,000.00 within 60 days of entry of the 8 January 2002 order.
    Sanctions are governed by N.C. Gen. Stat. § 1A-1, Rule 37 (2001). Subsection (b)(2) allows the trial court to impose “just” sanctions upon parties who “fail[] to obey an order to provide orpermit discovery[.]” We review the trial court's actions for an abuse of discretion. Segrest v. Gillette, 96 N.C. App. 435, 442, 386 S.E.2d 88, 92 (1989), rev'd on other grounds, 331 N.C. 97, 414 S.E.2d 334 (1992).
    In the present case, plaintiff had over five months to provide the discovery sought by defendants. Plaintiff entered into a consent order with defendants on 7 November 2001 and agreed to provide the requested discovery by 21 November 2001. On 8 January 2002, plaintiff still had failed to comply with the consent order and faced sanctions. N.C. Gen. Stat. § 1A-1, Rule 37(d) provides that “[i]n lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”
    Defendants point out that plaintiff voluntarily entered into the consent order on 7 November 2001 and specifically agreed to provide the discovery by 21 November 2001. Upon our review of the record, we discern no evidence that plaintiff was ordered to provide information she could not obtain, nor is there any evidence that her failure to provide the discovery was “substantially justified.” Thus, we believe the trial court was fully within its power to require plaintiff to comply with the consent order and pay $1,000.00 in attorney's fees. The reasonableness of the trial court's order for sanctions is further bolstered by the fact that the trial court implicitly denied defendants' request thatplaintiff's complaint be dismissed. The fact that the trial court passed over a more severe sanction adequately demonstrates that the trial court's order was reasonable and fully within its discretion. See Hursey v. Homes by Design, Inc., 121 N.C. App. 175, 464 S.E.2d 504 (1995). Plaintiff's final assignment of error is, therefore, overruled.
    Upon careful review of the record and the arguments presented by the parties, we believe the trial court acted properly in all respects. The order of the trial court is hereby
    Affirmed.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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