Municipal – Sovereign Immunity – Insurance Policy Exclusion – Sheriff’s Deputy – Record on Appeal – Interlocutory Appeal

Smith v. Heath. (Lawyers Weekly No. 10-07-1165, 6 pp.) (Sanford A. Steelman Jr., J.) Appealed from Pitt County Superior Court. (Clifton W. Everett Jr., J.) N.C. App. Click here for the full text of the opinion.

Holding: Because an insurance policy must be construed in its entirety, a defendant relying on an exclusion provision in the policy in his defense must include the entire policy as part of the record on appeal.

Appeal dismissed.

Background

Plaintiff and another prisoner were being transported from Lenoir County to another facility in 2008 while defendant Heath, a Lenoir County Sheriff’s deputy, was driving. Defendant Heath saw what he believed was a body in the roadway, and when he attempted to avoid hitting it, he lost control of the car. The car ran off the road, struck a tree and overturned. Plaintiff complained of low back pain and was taken to a hospital.

Plaintiff filed a complaint against Heath in his official capacity as a deputy with Lenoir County as well as against the sheriff of Lenoir County and the department, seeking damages for personal injuries he alleged were the result of negligence by defendant Heath.

The trial court granted defendants’ motion for summary judgment as to the sheriff and the department, but denied the motion as to Heath, finding that an issue of material fact exists as to whether a special relationship existed between plaintiff and Heath.

Heath appeals based on sovereign immunity. Although this is an interlocutory appeal, this court has held that appeals raising issues of governmental or sovereign immunity affect a substantial right so as to warrant immediate appellate review.

Insurance Policy

Heath contends the trial court erred based on sovereign immunity and the exclusion contained in the county’s liability insurance policy. He alleges the county purchased a plan of insurance and has thus waived its immunity from civil liability. Tort claims against governmental entities are generally barred by the doctrine of sovereign immunity, but statutes provide that the purchase of liability insurance waives governmental immunity, to the extent of insurance coverage, for any act involving the exercise of a governmental function.

In this case, Lenoir County had such a policy, but Heath relies on an exclusion that would in effect retract this waiver of sovereign immunity. It is well settled that an insurance policy must be construed as a whole. However, defendant Heath provided only the exclusion, and not the entire liability policy.

The Rules of Appellate procedure require that the record on appeal contain evidence necessary for an understanding of all issues presented. Without the entire policy before us, we cannot determine whether the exclusion serves to retract a waiver of sovereign immunity.

Dismissed.