Mullis v. Sechrest , 126 N.C. App. 91 ( 1997 )

EAGLES, Judge.

Plaintiffs contend the trial court erred by: 1) allowing defendants’ motion to amend their answer to assert the defense of governmental immunity; 2) determining that defendant Board was entitled to governmental immunity for all claims of $1,000,000 or less; and 3) determining that defendant Sechrest was entitled to summary judgment as a “public officer” immune from suit. We conclude that defendant Sechrest is not entitled to immunity in that he is a public employee being sued in his individual capacity, and therefore, the trial court incorrectly granted summary judgment for defendant Sechrest. We discern no other error and affirm partial summary judgment as to the Board.

We first note that because the order appealed from is not a final judgment as to all parties, it is interlocutory. Moreover, we note that the appeal here is not from the denial of a dispositive motion on the issue of governmental immunity. Nevertheless, in our discretion we elect to treat plaintiffs’ appeal as a petition for a writ of certiorari under N.C.R. App. P. 21 and grant the petition.

I.

Plaintiffs first argue the trial court should not have allowed defendants to amend their answer to assert the defense of sovereign immunity. Plaintiffs contend sovereign immunity is a matter of personal jurisdiction, and by failing to include this defense in their original answer or in an amended answer within 30 days of service of the original answer, defendants have waived their right to assert this defense pursuant to G.S. 1A-1, Rule 12(h)(1) (1975).

Although our Supreme Court has not ruled whether sovereign immunity involves personal or subject matter jurisdiction, see Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982); Colombo v. Dorrity, 115 N.C. App. 81, 83, 443 S.E.2d 752, 754, disc. review denied, 337 N.C. 689, 448 S.E.2d 517 (1994), a number of decisions of this Court have held that sovereign immunity is a matter of personal jurisdiction. See, e.g., Hawkins v. State, 117 N.C. App. 615, 622, 453 S.E.2d 233, 237 (1995). However, the issue in those cases was whether a denial of a defendant’s motion to dismiss the plaintiffs action based on sovereign immunity was immediately appealable. By holding that sovereign immunity involved personal rather than subject matter jurisdiction, this Court found the motions to dismiss to be immediately appealable. E.g., Hawkins, 117 N.C. App. at 622, 453 S.E.2d at 237.

Nevertheless, a number of decisions of this Court have also characterized sovereign immunity as an affirmative defense. See, e.g., Davis v. Messer, 119 N.C. App. 44, 58, 457 S.E.2d 902, 911, disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995) (“[I]t is well established that public official immunity [a subset of sovereign immunity] is an affirmative defense.”). Here, defendants amended their answer to plead sovereign immunity as a defense “pleaded in bar of any recovery by the plaintiffs,” not as a challenge to the court’s personal jurisdiction over the defendants. Accordingly, and because this Court has previously characterized sovereign immunity as an affirmative defense, for the purposes of this appeal we treat defendants’ amended answer as raising sovereign immunity as an affirmative defense.

The trial court did not err in allowing defendants to amend their answer. “Whether a motion to amend a pleading is allowed or denied is addressed to the sound discretion of the trial court and is accorded great deference.” North River Ins. Co. v. Young, 117 N.C. App. 663, 670, 453 S.E.2d 205, 210 (1995). This Court has also held that unpled affirmative defenses may be raised for the first time on a motion for summary judgment, even if not asserted in the answer, if both parties are aware of the defense. Dickens v. Puryear, 45 N.C. App. 696, 698, 263 S.E.2d 856, 857-58, rev’d on other grounds, 302 N.C. 437, 276 S.E.2d 325 (1981). In this case, both parties knew or should have known that an action against a governmental entity and its officers and employees raises a question of sovereign immunity. Further, the trial court also allowed plaintiffs to amend their complaint to include an allegation that defendants had waived sovereign immunity by purchasing liability insurance. Without this amendment, plaintiffs’ complaint would have been subject to dismissal for failure to state a cause of action against the Board and also against Sechrest if he were determined to be a public official rather than a public employee. E.g., Fields v. Board of Education, 251 N.C. 699, 701, 111 S.E.2d 910, 912 (1960). On this record, we find no abuse of discretion and accordingly affirm the order of the trial court on this issue. This assignment of error is overruled.

II.

Plaintiffs also contend the trial court erred in determining the Board was entitled to sovereign immunity for all claims of $1,000,000 or less. Plaintiffs argue that by participating in a risk management agreement with the City of Charlotte and the County of Mecklenburg, the Board waived immunity under G.S. 115C-42 (1985) by purchasing liability insurance. We disagree.

Under the authority granted by G.S. 115C-42, a local board of education may waive its governmental immunity from liability by obtaining liability insurance. Beatty v. Charlotte-Mecklenburg Bd. of Education, 99 N.C. App. 753, 755, 394 S.E.2d 242, 244 (1990), disc. review improvidently allowed, 329 N.C. 691, 406 S.E.2d 579 (1991). However, as with all state statutes waiving sovereign immunity, we must strictly construe G.S. 115C-42. Id. A board of education may only incur liability under the statute if the board has “procured liability insurance pursuant to this section . . . .” G.S. 115C-42. The statute further requires that “[a]ny contract of insurance purchased pursuant to this section 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 . . . .” G.S. 115C-42.

Here, the City of Charlotte, Mecklenburg County, and the Board entered into an agreement creating the Division of Insurance and Risk Management (“DIRM”) to handle liability claims against the three entities. Under the agreement, each entity pays funds into separate trust accounts and DIRM pays claims from these accounts. Each entity pays the first $500,000 of any claim against it from its own trust account. If a claim exceeds $500,000 and the entity has insufficient funds in its trust account to pay the claim, the entity may use DIRM funds belonging to the other entities to pay the balance. However, any borrowed funds must be repaid with interest within five years. DIRM will not pay any claims in excess of $1,000,000. This risk management agreement is not a “contract of insurance . . . issued by a company or corporation duly licensed and authorized to execute insurance contracts in this State ... .” Therefore, under a strict construction of G.S. 115C-42, the Board has not waived immunity by purchasing a contract of insurance. See Hallman v. Charlotte-Mecklenburg Bd. of Education, 124 N.C. App. 435, 438-39, 477 S.E.2d 179, 181 (1996). Further, we note that our Supreme Court has ruled the agreement involved in this case is not a local government risk pool and the participating governmental entities have not waived their sovereign immunity by their involvement in the agreement. Lyles v. City of Charlotte, 344 N.C. 676, 681, 477 S.E.2d 150, 153 (1996). Local boards of education are not eligible to participate in risk pools. Id. at 680, 477 S.E.2d at 153.

III.

Plaintiffs next argue the trial court erred in holding defendant Sechrest was entitled to summary judgment “because he is a public officer immune from suit by the plaintiffs.” We agree.

We have long recognized that public officers and public employees are generally afforded different protections under the law when sued in their individual capacities.

A public officer is shielded from liability unless he engaged in discretionary actions which were allegedly: (1) corrupt, Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985); (2) malicious, id.-, (3) outside of and beyond the scope of his duties, id.) (4) in bad faith, Hare, 99 N.C. App. at 700, 394 S.E.2d at 236; or (5) willful and deliberate, Harwood v. Johnson, 92 N.C. App. 306, 310, 374 S.E.2d 401, 404 (1988).

Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119, disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993). A public employee, on the other hand, “is personally liable for his negligence in the performance of his duties proximately causing injury . . . .” Givens v. Sellars, 273 N.C. 44, 49, 159 S.E.2d 530, 534-35 (1968); Hare v. Butler, 99 N.C. App. 693, 700, 394 S.E.2d 231, 236, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). This is so “even though his employer is clothed with immunity and not liable on the principle of respondeat superior.” Pharr v. Worley, 125 N.C. App. 136, 138, 479 S.E.2d 32, 34 (1997).

Here, we recognize that defendant Sechrest is a public employee, not a public official. As such, he is not entitled to individual immunity because his duties at the time the alleged negligence occurred are not considered in the eyes of the law to involve the exercise of the sovereign power; instead, while we dislike the term applied, defendant’s duties as a public employee are historically characterized as “ministerial.” Daniel v. City of Morganton, 125 N.C. App. 47, 55, 479 S.E.2d 263, 268 (1997). As a public employee acting within the scope of his duties as a public school teacher, defendant Sechrest here performs the significant and important job of teaching and educating the youth of our State, but he does not usually exercise the sovereign power and so cannot be fairly characterized as a public official. Accordingly, the mere fact that the negligence here is alleged to have occurred in the course of defendant’s performance of his duties as a public schoolteacher does not mitigate in favor of an official capacity claim.

Rather, allegations that a public employee acted negligently in the performance of his duties is in keeping with a traditional claim against a public employee in his individual capacity. Plaintiff’s complaint here does not allege negligence relating to any official duty that defendant Sechrest might still perform on occasion despite his general role as a public employee. Harwood v. Johnson, 326 N.C. 231, 237, 388 S.E.2d 439, 443 (1990). Accordingly, we conclude that plaintiffs’ complaint is a claim against defendant Sechrest in his individual capacity as a public employee and that sovereign immunity does not bar further prosecution of plaintiff’s claim in this regard.

Finally, we note that Taylor v. Ashburn, 112 N.C. App. 604, 436 S.E.2d 276 (1993), disc. review denied, 336 N.C. 77, 445 S.E.2d 46 (1994), could be read to support a contrary result in this case. We are careful, however, not to read Taylor and its progeny to mean that any time a complaint alleges negligence only in the performance of a public employee’s duties, the claim is only against the defendant in his official capacity. Such a reading would of course fly in the face of well-established precedent holding that a public employee “is personally liable for his negligence in the performance of his duties proximately causing injury . . . .” Givens, 273 N.C. at 49, 159 S.E.2d at 534-35.

Effecting fundamental change in the law of North Carolina to expand or restrict the application of the doctrine of sovereign immunity is a suitable activity for the General Assembly or for a Court of last resort, but not for this Court. We are bound by prior decisions of the Supreme Court and of this Court. E.g., In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989); Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1985).

We find no error in the order as to the Board and affirm the trial court’s grant of partial summary judgment in favor of the Board for all claims of $1,000,000 or less. We vacate the court’s grant of summary judgment for defendant Sechrest and remand for further proceedings.

Affirmed in part, vacated in part, and remanded.

Judge WALKER concurs. Judge McGEE concurs in part and dissents in part.