We have previously interpreted similar provisions in liability insurance contracts. SeePatrick v. Wake Cty. Dep't of Human Servs., 188 N.C. App. 592, 655 S.E.2d 920 (2008) ; Wright v. Gaston Cty. , 205 N.C. App. 600, 698 S.E.2d 83 (2010). ยถ 20 In Patrick , the plaintiff filed a complaint against the defendants in their official capacities as supervisors of the Child Protective Services of the Wake County Department of Human Services.
Stated differently, "[c]ounties only waive immunity to the extent that [they are] indemnified by the insurance contract from liability for the acts alleged." Wright v. Gaston Cty., 698 S.E.2d 83, 87 (N.C. Ct. App. 2010); accord. Dawes v. Nash Cty., 584 S.E.2d 760, 763 (N.C. Ct. App. 2003); Combs v. Town of Belhaven, 415 S.E.2d 91, 92 (N.C. Ct. App. 1992).
North Carolina Child Support enforcement procedures are a creature of statute. N.C. Gen. Stat. ยง 110-128 et seq. As such, the activities carried out pursuant to statute are governmental by nature. See Wright v. Gaston County, 205 N.C. App. 600, 604, 698 S.E.2d 83, 88 (2010) (holding that providing for the health and welfare of the citizens of the county is a legitimate and traditional function of county government); Dalenko, 157 N.C. App. at 56, 578 S.E.2d at 603 (holding a social worker whose discretion is created by statutory authority has governmental immunity). Here, Plaintiff alleged in his amended complaint Cumberland County waived governmental immunity by the purchase of liability insurance.
See Meyer v. Walls , 347 N.C. 97, 489 S.E.2d 880, 884 (1997). Relevant here, a county sheriff's office may waive its governmental immunity by purchasing liability insurance, Wright v. Gaston County , 205 N.C.App. 600, 698 S.E.2d 83, 87 (2010), or a surety bond (as it is statutorily mandated to do), see N.C. Gen. Stat. ยง 162โ8 ; White v. Cochran , 229 N.C.App. 183, 748 S.E.2d 334, 339โ40 (2013). The district court granted summary judgment to Defendants on all official capacity claims, finding that neither the Macon County Sheriff's Office's liability insurance policy nor its surety bond waived its governmental immunity.
A government function is a โdiscretionary, political, legislative, or publicโ activity โperformed for the public good [on] behalf of the State rather than for itself.โ Wright v. Gaston Cty., 698 S.E.2d 83, 87 (N.C. Ct. App. 2010) (quoting Britt v. Wilmington, 73 S.E.2d 289, 293 (N.C. 1952)). Plaintiffs do not dispute that Defendants' police and paramedic services are government functions.
In light of the clear precedent established by the North Carolina Court of Appeals, the Court concludes that the exclusionary provisions in the County's insurance policy are affective to defeat an argument of waiver. See Wright v. Gaston Cnty., 205 N.C. App. 600, 608, 698 S.E.2d 83, 89โ90 (2010). For all these reasons, the Court concludes that the County has not waived its governmental immunity from suit for the state tort claims.
The court explained that "[a] public entity does not waive its sovereign immunity by maintaining an insurance policy where that policy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity." Id.; see also Hammer v. City of Osage Beach, 318 F.3d 832, 841 (8th Cir. 2003) (finding city's insurance policy contained language expressly limiting city's liability beyond specific statutes); Wright v. Gaston Cty., 698 S.E.2d 83, 89 (N.C. Ct. App. 2010) (holding plaintiff's claim barred by insurance provision stating that statutory and common law immunities were not waived); Lunsford v. Renn, 700 S.E.2d 94, 100 (N.C. Ct. App. 2010) (granting summary judgment for defendant when insurance policy made clear it did not waive governmental immunity). Plaintiff alleges that whether Defendant waived sovereign immunity by buying liability insurance creates a disputed issue of fact.
However, such a waiver is effective only to the extent that tort liability is actually covered by the applicable insurance policy; "governmental immunity is not waived if the insurance policy has a clear provision excluding claims that would qualify for governmental immunity." Poole v. Cty., No. 315CV00309FDWDCK, 2016 WL 4267792, at *5 (W.D.N.C. Aug. 11, 2016) (citing Wright v. Gaston Cty., 698 S.E.2d 83, 88 (N.C. Ct. App. 2010)).
N.C. Gen. Stat. ยง 153A-435(b) ("To the extent of the coverage of insurance . . . governmental immunity may not be a defense to the action. Otherwise, however, the county has all defenses available to private litigants in any action brought pursuant to this section without restriction, limitation, or other effect . . . ."); see also Wright v. Gaston Cty., 698 S.E.2d 83, 87 (N.C. Ct. App. 2010). This limitation on waiver includes exclusionary clauses reserving all rights to assert sovereign immunity.
Even if a municipality has insurance coverage, governmental immunity is not waived if the insurance policy has a clear provision excluding claims that would qualify for governmental immunity. Poole v. Gaston Cnty., 2016 U.S. Dist. LEXIS 106334, at *13-15 (W.D.N.C. Aug. 11, 2016) (citing Wright v. Gaston Cnty., 698 S.E.2d 83, 88 (N.C. App. 2010)).