Opinion
No. COA09-292.
Filed February 2, 2010.
Pender County No. 04 CVS 727.
Appeal by Defendants from order entered 11 November 2008 by Judge Cressie H. Thigpen, Jr. in Superior Court, Pender County. Heard in the Court of Appeals 3 November 2009.
No brief for Plaintiff-Appellee. Stott, Hollowell, Palmer Windham, L.L.P., by Martha Raymond Thompson and Aaron C. Low, for Defendants-Appellants.
Plaintiff alleged in the complaint in this matter that he was married to Wendy Coleman (Coleman), but that they were separated at the time the events transpired that gave rise to this action. Plaintiff and Coleman had two children, Donovan and Dillan. Coleman had primary custody of the children, and she and the children lived with Coleman's boyfriend, Robert Goodman (Goodman). The children visited Plaintiff in May of 2002 and Plaintiff noticed bruises "about the children's face, neck and bodies." Plaintiff contacted Gaston County Department of Social Services (DSS) on 28 May 2002, and DSS initiated an investigation.
Coleman and Goodman left Gaston County with the children and moved to Surf City, in Pender County, without informing DSS. Upon learning that Coleman, Goodman and the children could not be located in Gaston County, DSS "`closed' their investigation into the abuse and neglect of Dillan and Donovan Coleman." Goodman beat Dillan severely on the night of 22 October 2002 and Dillan died on 23 October 2002 as a result of the injuries he suffered from the beating.
Plaintiff initially filed this action on 22 October 2004 against Coleman, Goodman, DSS, and the following employees of DSS: Keith Moon (Moon), Sharon Nash (Nash), Rita Ferguson (Ferguson), Shawn Bumgardner (Bumgardner), Ann Freeman (Freeman), Matthew Crabtree (Crabtree), and Dianne Fegan (Fegan); as well as against the Town of Surf City; the Surf City Police Department, and individual employees of the Surf City Police Department. In the complaint, Plaintiff alleged negligence on the part of Defendants that resulted in the murder of Plaintiff's minor son, Dillan, by Goodman. All claims against the Town of Surf City, and the Surf City Police Department, including its individual employees, were dismissed with prejudice following a mediated settlement agreement between Plaintiff and those Defendants.
DSS, Moon, Nash, Ferguson, Bumgardner, Freeman, Crabtree, and Fegan moved to dismiss the complaint on 25 September 2006, pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1) and (6), based upon a lack of subject matter jurisdiction, "qualified immunity, public official immunity, governmental immunity, the public duty doctrine, and the law." By order entered 29 June 2007, the trial court dismissed with prejudice all claims against the remaining individual Defendants in their individual capacities, ruling that they were protected by the public officials immunity doctrine. All claims against DSS were dismissed with prejudice by the trial court, which stated: "As to the 12(b)(1) and (6) motion to dismiss [the claim against DSS], as the proper party is the Director of [DSS], naming [DSS] is redundant, and the Motion should be GRANTED[.]" All claims against Crabtree were dismissed with prejudice based upon the trial court's finding that Crabtree had never been served with process. Plaintiff did not appeal the 29 June 2007 order.
Northern Insurance Company of New York (Northern), which had provided liability insurance coverage for DSS for at least some of the period that DSS was involved in investigating the allegations of abuse concerning the children, moved for summary judgment based in part on its claim that it was no longer providing insurance to DSS at the time of Dillan's death, and its policy explicitly excluded coverage for the acts leading to Plaintiff's claim. By order entered 2 May 2008, the trial court granted summary judgment in Northern's favor for all acts that occurred after 1 July 2002, the date that Northern's policy coverage period for DSS ended.
The remaining Defendants, being Moon, Nash, Bumgardner, Ferguson, Freeman, and Fegan, moved on 15 September 2008 to dismiss all claims against them for lack of personal jurisdiction. By order entered 24 November 2008, the trial court granted Defendants' motion for all claims pertaining to the remaining Defendants' actions on or after 1 July 2002, which included the wrongful death claim, "on the grounds of sovereign or governmental immunity[.]" However, the trial court further stated that "the Motions to Dismiss are denied to the extent that any claims may exist for an alleged assault that may have occurred to Plaintiff's decedent between May 28, 2002 and June 30, 2002, as no sovereign immunity bars such claims." Defendants appeal.
In Defendants' sole argument, they contend that the trial court erred in failing to dismiss Plaintiff's entire action against them outright, because Plaintiff's action contained no claims against Defendants for any assault that may have occurred between 28 May 2002 and 30 June 2002, the time period between Plaintiff's report to DSS of abuse to the children and the termination date of Northern's liability coverage for DSS. We agree.
We first note that although on its face this appeal is interlocutory, it affects a substantial right because it involves the defense of sovereign immunity, and therefore is properly before us. Murray v. County of Person, 191 N.C. App. 575, 577, 664 S.E.2d 58, 60 (2008) (citations omitted). Furthermore, as we determine below that the 24 November 2008 order constitutes a final order, we hold that this appeal is not interlocutory.
We review de novo the grant of a motion to dismiss. . . . "The system of notice pleading affords a sufficiently liberal construction of complaints so that few fail to survive a motion to dismiss." Accordingly, when entertaining "a motion to dismiss, the trial court must take the complaint's allegations as true and determine whether they are sufficient to state a claim upon which relief may be granted under some legal theory." "This rule . . . generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery."
Lea v. Grier, 156 N.C. App. 503, 507, 577 S.E.2d 411, 414-15 (2003) (internal citations omitted).
It is an established principle of jurisprudence, resting on grounds of sound public policy, that a state may not be sued in its own courts or elsewhere unless it has consented by statute to be sued or has otherwise waived its immunity from suit. . . . Waiver of sovereign immunity may not be lightly inferred and statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.
Battle Ridge Cos. v. N.C. Dep't of Transp., 161 N.C. App. 156, 157, 587 S.E.2d 426, 427 (2003) (internal citations omitted). The State, and its agencies, waive sovereign immunity to the extent insurance coverage is purchased providing liability protection for the acts for which claims are brought against the State or a State agency. Cowell v. Gaston County, 190 N.C. App. 743, 744, 660 S.E.2d 915, 917 (2008). Therefore, if Defendants committed any acts in the scope of their employment with DSS that were covered by the Northern policy during the coverage period of the Northern policy, sovereign immunity would have been waived for those acts, and suit could have been properly pursued on any claims based upon those acts.
In order for Plaintiff to pursue any claims against Defendants based on acts they may have committed prior to the termination of the Northern policy, Plaintiff must have sufficiently alleged those claims in his complaint. Governor's Club, Inc. v. Governor's Club Ltd. P'ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 786 (2002) (citations omitted). We must therefore review Plaintiff's complaint to determine if Plaintiff has alleged that any cognizable claims exist "for an alleged assault that may have occurred to Plaintiff's decedent between May 28, 2002 and June 30, 2002[.]"
This Court has previously held that where, upon reading the complaint as a whole, the complaint appeared to allege only a single claim for wrongful death, a plaintiff had not stated a claim for a survivorship action. In Locust v. Pitt County Memorial Hospital, 154 N.C. App. 103, 107, 571 S.E.2d 668, 672 (2002), rev'd on other grounds, 358 N.C. 113, 591 S.E.2d 543 (2004), this Court undertook to "determine whether Plaintiff's complaint alleged damages solely under the Wrongful Death Act [N.C. Gen. Stat. § 28A-18-2] or included a survival action as well." The Court found that "[i]n her complaint, Plaintiff states a claim `for the wrongful death of [Lester] Tyson' and then proceeds to plead all the damages listed in section 28A-18-2(b)." Id. at 108, 571 S.E.2d at 672. Similarly, in In re Estate of Parrish, 143 N.C. App. 244, 255, 547 S.E.2d 74, 81 (2001), proceeds from an action were held to be wrongful death proceeds rather than assets of the decedent's estate where the "damages pled by [Plaintiff] are virtually identical to those available under the Wrongful Death Statute," and the prayer for relief requested "all damages recoverable for [Parrish's] wrongful death." Id. The Court in Locust noted that damages were alleged only once without any indication as to what amount of damages was sought pursuant to the wrongful death act and what amount was related to the survivorship claim. The Court stated, "it appears the damages sought were lumped together because they related to a single claim: wrongful death." Locust, 154 N.C. App. at 108, 571 S.E.2d at 672.
Alston v. Britthaven, Inc., 177 N.C. App. 330, 336-37, 628 S.E.2d 824, 829-30 (2006).
Plaintiff's sole claim against Defendants alleged negligence and negligent supervision. Plaintiff concluded this claim by stating: "The conduct of [Defendants], as set out above, directly and proximately caused the death of the deceased child and, prior to his death, he suffered great pain of mind and body and his estate is entitled to the damages, general, special and punitive, as set out above." In the fact portion of Plaintiff's complaint, Plaintiff alleged:
As a result of the negligent acts of omission and commission of the defendants, as set out herein, and as a result of the assault that the defendant Goodman inflicted upon Dillan Coleman, the child suffered extreme pain, suffering and emotional distress until he died. Further, Dillan Coleman is entitled to recover general and special damages for his lost income, compensation for his medical and funeral expenses, loss of his care, society, companionship and comfort.
Plaintiff requested the following relief for all of his claims:
1. For compensatory damages as set forth in N.C.G.S. § 28A-18-2(b);
2. For Punitive Damages from [D]efendants Wendy Coleman and Robert Goodman;
3. For attorney's fees and costs as allowed by law;
4. For a jury trial on all matters; and
5. For such other and further relief the court deems just and proper.
N.C. Gen. Stat. § 28A-18-2 (2005) states:
When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony.
N.C. Gen. Stat. § 28A-18-2(a) (emphasis added). Reading Plaintiff's complaint as a whole, it is clear to this Court that Plaintiff limited his claim against Defendants to their alleged negligence leading to the wrongful death of Dillan, and did not include in his complaint a claim related to any assault not resulting in the death of Dillan. Alston, 177 N.C. App. at 336-37, 628 S.E.2d at 829-30. Furthermore, the damages requested directly track those provided for in N.C. Gen. Stat. § 28A-18-2(b), and Plaintiff specifically limits the compensatory damages sought to those provided for in N.C. Gen. Stat. § 28A-18-2(b). Following the precedent set by the cases cited in Alston, we hold that Plaintiff's complaint contained a single claim against Defendants — wrongful death based upon negligence and negligent supervision. Therefore, the trial court erred in allowing this action to proceed "for an alleged assault that may have occurred to Plaintiff's decedent between May 28, 2002 and June 30, 2002[,]" as there was no such claim included in Plaintiff's complaint against Defendants.
Because the trial court dismissed the only claim against Defendants that was alleged in Plaintiff's complaint, there were no further matters for the trial court to decide, and the action should have been dismissed. We vacate that portion of the 24 November 2008 order which purported to deny Defendants' motions to dismiss "to the extent that any claims may exist for an alleged assault that may have occurred to Plaintiff's decedent between May 28, 2002 and June 30, 2002[,]" as we hold Plaintiff included no such claims in his complaint. That part of the 24 November 2008 order dismissing the claims for wrongful death has not been challenged, and therefore stands. Because no issues remain to be decided, the trial court's 24 November 2008 order, excluding the portion vacated, constitutes a final order.
Affirmed in part, vacated in part.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).