Tort/Negligence – Civil Practice – Sovereign Immunity – Municipal – Medical Malpractice – EMTs – Insurance – Exclusion & Exception – Personal Liability

Even though the county’s insurance policy states that the exclusion from coverage of medical malpractice claims “shall not apply to liability of county employed or county volunteer emergency medical technicians,” this exception to the exclusion only applies to the personal liability of county-employed EMTs; therefore, the county retains sovereign immunity as to the plaintiff’s medical malpractice claims arising out of her decedent’s treatment by county EMTs.

Summary judgment for the county affirmed.

The plaintiff filed a medical malpractice action against defendant Nash County based on the alleged negligence of county-employed emergency medical technicians (EMTs). The county had liability insurance which the plaintiff claimed waived the county’s sovereign immunity.

“In the absence of some statute that subjects them to liability, the state, its municipalities, and the officers and employees thereof sued in their official capacities are shielded from tort liability when discharging or performing a governmental function…. This court has previously held that county-operated ambulance service is a governmental activity shielded from liability by governmental immunity.”

Pursuant to G.S. 153A-435, “a county may waive its governmental immunity for tort actions by the purchase of liability insurance for certain actions and specific claim amounts.”

The county’s liability policy provided coverage for “incidental malpractice,” defined as “emergency professional medical services rendered … by any duly qualified medical practitioner (except any physician, radiologist, osteopath, dentist, pharmacist, medical resident or student, or any individual licensed to practice medicine), nurses or technicians employed by or acting on behalf of the [county].” However, the policy excluded coverage for “personal injury to any person arising out of the rendering of or failure to render … medical … treatment….” Yet, at the end of the exclusion section, the policy stated, “However, this exclusion shall not apply to liability of county employed or county volunteer emergency medical technicians.”

“We agree with Nash County that the exclusionary clause operates to remove from coverage all claims against Nash County arising out of the rendering of medical services, but the exception to the exclusionary clause operates to retain coverage for the personal liability of EMTs employed by Nash County…. The exception to the exclusionary clause … expressly states that the exclusion shall not apply to the ‘liability’ of county employed EMTs. By its terms, the exception only applies to the personal liability of county employed EMTs, and not to the liability of Nash County arising out of the provision of medical services by its EMTs. Further, the exclusionary clause unambiguously removes from coverage all claims against Nash County arising out of the provision of medical services by EMTs.”

Affirmed.

Dissent

“Defendants’ insurance policy excludes coverage for ‘personal injury to any person arising out of the rendering of … any … medical … treatment’ but states unambiguously that ‘this exclusion shall not apply to liability of county employed or county volunteer emergency medical technicians [(EMTs)].’ The policy contains no language from which one could infer … that the EMT exception to the exclusion of coverage applies only to an EMT’s personal liability. As such, the policy provision should be accorded its plain meaning of providing coverage for personal injuries arising out of the medical treatment provided by defendants’ EMTs.

“Even if the term ‘liability’ were ambiguous, it would have to be construed liberally so as to provide coverage whenever possible by reasonable construction. It is reasonable to construe the term ‘liability’ as including an individual’s personal liability as well as liabilities incurred in an individual’s official capacity.”

Dawes v. Nash County. (Lawyers Weekly No. 2-07-0262, 13 pp.) (Hugh Campbell, J.) Appealed from Nash County Superior Court. (Quentin Sumner, J.)