The City of Raleigh ("defendant") appeals from a trial court's order granting in part its motion for summary judgment but denying its "motion for summary judgment . . . based on immunity[.]" For the following reasons, we reverse and remand the trial court's order.
Plaintiff, individually and as an administrator of Nyles Arrington's estate, filed a complaint against Rosalinda Martinez, the owner of La Rosa Linda's Mexican Restaurant; Michelle Peele, in her capacity as an officer for the Raleigh Police Department and as security for La Rosa Linda's Mexican Restaurant; the City of Raleigh; and the Raleigh Police Department (collectively referred to herein as "defendants") on 11 December 2006, alleging several claims arising out of the fatal shooting of plaintiff's decedent, Nyles Arrington, by Officer Michele Peele on 28 August 2005. Peele was a full-time law enforcement officer with the Raleigh Police Department working on a part time basis as a "uniformed armed security guard" at La Rosa Linda's Mexican Restaurant. Plaintiff's complaint alleged claims of (1) respondeant superior against La Rosa Linda's; (2) premises liability against La Rosa Linda's; (3) a civil rights violation under 42 U.S.C. § 1983 against all defendants; (4) violations of the North Carolina Constitution, Art. I, Sections 19, 20, 21, 35 and 36 against Peele, the Raleigh Police Department ("the Police Department") and the City of Raleigh ("the City"); (5) wrongful death against Peele, the Police Department, and the City; (6) negligence in "hiring, retaining, and/or supervising" Peele against the City and Police Department; and (7) punitive damages against all defendants. On 9 January 2007, the City and Police Department gave notice of removal of plaintiff's claim to the United States District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. § 1441(b) based upon plaintiff's claim under 42 U.S.C. § 1983. Thereafter, on 22 January 2007, plaintiff filed in federal court an amended complaint which did not include the 42 U.S.C. § 1983 claim. The other claims were the same as in the original complaint, although the amended complaint made additional allegations as to the third claim under the North Carolina Constitution. Plaintiff did not seek remand to the state court, so the case proceeded in federal court.
The City filed its answer to the amended complaint on 12 February 2007. The City denied plaintiff's substantive factual allegations and alleged 19 separate affirmative defenses. We will not list each affirmative defense raised, as most are not relevant to the arguments in this appeal. The affirmative defense which is pertinent to this appeal is as follows:
On 10 April 2007, plaintiff voluntarily dismissed all claims against the Raleigh Police Department with prejudice. On 25 March 2008, the District Court granted defendant Peele's motion for judgment on the pleadings, dismissing plaintiff's North Carolina Constitutional claims against her and granted the City's motion for judgment on the pleadings, dismissing plaintiff's North Carolina Constitutional and punitive damages claims against it. The parties conducted discovery in the federal action and two defendants, the City and Peele, moved for summary judgment on 14 July 2008. On 26 January 2009, the United States District Court partially granted the City's motion but denied summary judgment on the City's sovereign immunity defense and denied Peele's motion for summary judgment. Both the City and Peele filed interlocutory appeals as to the denial of sovereign immunity, and on 5 March 2010, the United States Court of Appeals for the Fourth Circuit issued an opinion which vacated the District Court's summary judgment order and remanded the action to Wake County Superior Court, holding that "the district court should not have maintained jurisdiction over this action upon the early dismissal by the plaintiff of the
Upon remand to Superior Court, Wake County, on 1 April 2010, the City filed a motion for summary judgment. On 3 May 2010, the City filed an amended motion for summary judgment. On 20 May 2010, the Superior Court entered an order recognizing and adopting the "pleadings filed, discovery conducted, and certain orders entered while this action was pending" before the federal court. The trial court adopted
(Emphasis in original.)
The City's motion for summary judgment was heard on 17 May 2010; by order entered on 11 June 2010, the Superior Court granted summary judgment allowing the City's motion in part, dismissing "all claims asserted by Christi Arrington in her individual capacity against all Defendants[;]" "all claims of negligent hiring, training, supervision, or retention of an incompetent employee" against the City; denying the City's motion "based on a lack of agency and based on immunity[;]" and denying "Defendant Martinez's verbal motion to dismiss[.]" The City timely filed notice of appeal from the 11 June 2010 order which "denied the City's motion seeking summary judgment on grounds of sovereign or governmental immunity."
We first address the interlocutory nature of the City's appeal. We have stated that
Gregory v. Penland, 179 N.C. App. 505, 509, 634 S.E.2d 625, 628 (2006) (citations and quotation marks omitted). As plaintiff's wrongful death claim, as administrator of Nyles Arrington's estate, against the City, as well as various other claims against defendants Peele and Rosalinda Martinez, have not been resolved, the Superior Court's 11 June 2010 ruling on summary judgment was not a final order and the City's appeal is interlocutory. However, a defendant's appeal from denial of summary judgment on grounds of sovereign immunity is immediately appealable, as "it represents a substantial right[.]" Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351, 354 (2009). Accordingly, the City's appeal is properly before us.
We have noted that
Kirkpatrick v. Town of Nags Head, ___ N.C.App. ___, ___, 713 S.E.2d 151, 155 (2011). The City claims that it is entitled to summary judgment because plaintiff's claims are barred by governmental immunity. The City argues that providing police service is a governmental function for which is immune from suit. Although the facts surrounding Officer Peele's shooting of decedent are certainly in dispute, there is no genuine issue of material fact as to the facts which are relevant to a determination of governmental immunity. We will thus review the trial court's order de novo to determine whether the city is "entitled to judgment as a matter of law[,]" see id, on the grounds of governmental immunity.
The provision of police services is a governmental function which is protected by governmental immunity, although this immunity can be waived in whole or in part.
Lunsford v. Lori Renn, ___ N.C.App. ___, ___, 700 S.E.2d 94, 100 (2010), disc. review denied, 365 N.C. 193, 707 S.E.2d 244 (2011).
By statute, a City may, but is not required to, waive governmental immunity. North Carolina General Statutes § 160A-485 sets forth how a City may waive immunity:
N.C. Gen.Stat. § 160A-485 (2009) (emphasis added). Here, the Raleigh City Council adopted a resolution waiving governmental immunity to a limited extent, established a self-funded reserve ("SFR") for claims up to $1 million, and obtained insurance for claims above this amount, up to $11 Million ("the resolution"). Specifically, the resolution provides in pertinent part as follows:
The resolution above provided for waiver of immunity as to claims covered by the SFR up to $1,000,000.00. The City had no insurance to cover claims under $1,000,000.00 or in excess of $11,000,000.00. The City had two policies of excess insurance. The policy issued by Genesis Insurance Company covered claims from $1,000,000.00 to $2,000,000.00; the policy issued by the Insurance Company of the State of Pennsylvania provided coverage from claims above $2,000,000.00 up to $11,000,000.00. However, these policies do not provide coverage until and unless the SFR has been exhausted.
Our courts have consistently held that a waiver of sovereign immunity extends only as far as the municipality has determined. In addition, statutes as to waiver of governmental immunity are strictly construed against waiver. See Hallman v. Charlotte—Mecklenburg Bd. of Educ., 124 N.C. App. 435, 438-39 477 S.E.2d 179, 181 (1996); Overcash v. Statesville City Bd. of Educ., 83 N.C. App. 21, 25-26, 348 S.E.2d 524, 527 (1986) (noting that "`[w]aiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the right to sovereign immunity, must be strictly construed.' Guthrie v. State Ports Authority, 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983). See also Floyd v. Highway Commission, 241 N.C. 461, 85 S.E.2d 703 (1955); Construction Co. v. Dept. of Administration, 3 N.C. App. 551, 165 S.E.2d 338 (1969)."). The terms of N.C. Gen.Stat. § 160A-485 make it clear that immunity is waived "only to the extent that the city is indemnified by the insurance contract from tort liability." A City is permitted to determine the extent of its waiver of immunity, as the statutes states that "[a]doption of such a resolution waives the city's governmental immunity only to the extent specified in the council's resolution, but in no event greater than funds available in the funded reserve for the payment of claims." Id.
The City argues that it has not waived immunity as to plaintiff's claims because those claims do not fall within the conditions of its limited waiver resolution for several reasons. First, the resolution provides that immunity will be waived and certain types of damages paid only if a plaintiff or claimant agrees to certain conditions, including execution of a release. Even then, the City has agreed to pay only specified types of damages. Section 5 of the resolution states that "[i]f a claimant or plaintiff agrees to execute a release of all claims against all persons, firms, and corporations on account of the incident giving rise to the claim, the City will pay for" certain specific types of damages proximately caused by the incident. Thus, the plaintiff has to agree to accept only the specific damages which the City has agreed to pay, and to waive recovery of any additional damages from any other party, in order to receive the benefit of the waiver. The City argues that plaintiff has not executed such a release and has not agreed to limit damages recovered to those specified by the resolution. Instead, plaintiff has itemized the damages sought in discovery responses filed just 13 days prior to the summary judgment hearing as follows:
Los[t] Wages: $620,000.00 Funeral Expenses: $3[,]210.00 Medical Expenses: $15,115.68 Out of Pocket Expenses: $34,242.00 Loss of Consortium: $500,000.00 Punitive Damages: $1,512,120.00 Pain and Suffering: $1,000,000.00
It is undisputed that plaintiff has not executed any sort of release of her claims arising out of this incident as to any party. On 5 October 2007, plaintiff answered requests for admissions regarding this issue as follows:
Plaintiff filed an affidavit on 13 April 2010 in which she alleges that "On this date I agree to execute release of all persons, firms and corporations on account of the incident which is the subject of this litigation for the damages enumerated in the waiver of immunity and to the extent required by the waiver." She claims that her affidavit does not contradict her prior answer to the request of admissions quoted above because "[t]he plain language of the waiver resolution does not require that a claimant agrees [sic] to execute a release during a certain period of time. It does not preclude a person from agreeing to execute a release at the conclusion, in the middle or in the beginning of litigation." She further claims that "I have never refused to agree to execute a release of all claims against all persons, firms, and corporations on account of the August 28, 2005 [sic]." In addition, plaintiff states that she will not execute a release in compliance with the terms required by the resolution, as she states that "[t]his affidavit is not intended to limit any damages in excess of $1,000,000.00 which are covered by any insurance policies in effect at time of this incident." Based upon this affidavit, plaintiff argues before this Court that "[t]he resolution requires that claimants or plaintiff agree to execute a release. It does not require the plaintiff to execute a release." (emphasis added.)
Plaintiff's argument as to the interpretation of the resolution has no basis in law or logic. Essentially, she claims that she agrees to execute a release, but she has not done so and will not actually execute a release until she decides to do so—even as late as the conclusion of this litigation which has already been pending for over four years. Even then, she agrees to execute a release which is not in accord with the terms required by the resolution. Plaintiff's argument overlooks the basic nature of governmental immunity as a defense. Governmental immunity is an immunity from suit—not just immunity from having to pay damages at the conclusion of years of litigation. See Craig, 363 N.C. at 337-38, 678 S.E.2d at 354 (stating that "[a]s noted by the United States Supreme Court, such immunity is more than a mere affirmative defense, as it shields a defendant entirely from having to answer for its conduct at all in a civil suit for damages. See Mitchell v. Forsyth, 472 U.S. 511, 525 [105 S.Ct. 2806, 2814-15], 86 L.Ed.2d 411, 424 (1985). Thus, unlike affirmative defenses explicitly listed in our Rules of Civil Procedure, see N.C.G.S. § 1A-1, Rule 8(c) (2007), the denial of summary judgment on grounds of sovereign immunity is immediately appealable, though interlocutory, because it represents a substantial right, as `[t]he entitlement is an immunity from suit rather than a mere defense to liability; and. . . it is effectively lost if a case is erroneously permitted to go to trial.' Mitchell, 472 U.S. at 526 [105 S.Ct. at 2815], 86 L.Ed.2d at 425."). Waiver of immunity must be established at the outset of a lawsuit. In fact, our courts have held that immunity raises a jurisdictional issue, although it is unsettled as to whether it is personal or subject matter jurisdiction. See Zimmer v. North Carolina Dept. of Transp., 87 N.C. App. 132, 133-34, 360 S.E.2d 115, 116-17 (1987). However, for purposes of this case, it is irrelevant whether immunity implicates personal or subject matter jurisdiction. Because it is a jurisdictional matter, a plaintiff's complaint must affirmatively demonstrate the basis for the waiver of immunity when suing a governmental entity which has immunity. See Eaker v. Gower, 189 N.C. App. 770, 774, 659 S.E.2d 29, 32 (2008) (noting that "[w]hen jurisdiction is challenged, plaintiff has the burden of proving prima facie that a statutory basis for jurisdiction exists. The failure to plead the particulars of personal jurisdiction is not necessarily fatal, so long as the facts alleged permit the reasonable inference that jurisdiction may be acquired." (citation omitted)). Plaintiff made the required allegations in her complaint that the City had purchased a policy of general liability insurance and had thereby "waived any applicable immunity defenses in tort[.]" The City, in its answer, denied waiver of
Plaintiff also argues that the City's purchase of insurance to cover damages in excess of the limited waiver resolution has waived its immunity. Apparently, plaintiff takes the position that she can skip over the first million, which is self-insured by the City by the SFR, and recover only upon the policies which provide excess coverage for damages in excess of $1 million. Although the City has insurance policies which cover claims in excess of $1,000,000.00, the City argues that it has no coverage for plaintiff's claim because the terms of the policies require that the City first pay its entire SFR on a claim before the insurance will provide any indemnification. The Genesis policy reads:
(Bold in original.) The "retained limit" as noted in the agreement, is the City's $1,000,000.00 SFR and is specifically listed on the agreement's "Declarations Page[.]" The definition of "retained limit" contained in the Genesis policy reiterates that
(Bold in original.) Likewise the Pennsylvania policy states the following:
The Pennsylvania policy required an "expenditure" of the City's $2,000,000.00 retained limit "by means of payments for judgments, settlements, or defense costs before providing indemnification.
Plaintiff's position is that she should be able to benefit from the City's SFR and insurance for all types of damages she claims and also to preserve her rights to recover against other potentially liable parties. Plaintiff argues that the City "cannot arbitrarily and capriciously prohibit parties from recovering under its laws." Yet plaintiff has not presented any legal basis for claiming that the City's SFR and insurance coverage
We recognize that not all claims against the sovereign are barred by governmental immunity. In particular, our Courts have determined that some types of claims under the North Carolina constitution are not barred by governmental immunity. See Craig, 363 N.C. at 338, 678 S.E.2d at 354 (stating that "[i]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution." (quoting Corum v. University of North Carolina Through Bd. of Governors, 330 N.C. 761, 782, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992))). Plaintiff's complaint did include a claim under the North Carolina Constitution against Peele and the City. However, we will not address this potential constitutional issue for two reasons. First, the superior court entered an order dismissing plaintiff's constitutional claims on 20 May 2010, so at this point these claims are not before the court. See Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 243, 113 S.E.2d 689, 700 (1960) (stating that "[t]he courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter arise, or give abstract opinions." (citation omitted)). In addition, plaintiff has not argued or even mentioned in the record or her brief as an alternative basis for the trial court's denial of summary judgment the theory that the City's governmental immunity may not be applicable to her constitutional claims.
We thus conclude "that there is no genuine issue of material fact concerning the extent to which Defendant is entitled to rely on a defense of governmental immunity in opposition to Plaintiff['s] claim, that Defendant is entitled to judgment as a matter of law with respect to that defense, and that the trial court erred by reaching a contrary conclusion. As a result, the trial court's order should be, and hereby is, reversed and this case should be, and hereby is, remanded to the [Wake] County Superior Court with instructions that judgment be entered in favor of Defendant." Kirkpatrick, ___ N.C.App. at ___, 713 S.E.2d at 161.
REVERSED AND REMANDED.
Judges HUNTER, JR., Robert N. and THIGPEN concur.
