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Childs v. Johnson12/31/2002
PUBLISHED
Gloria L. Childs and Kimberly F. Childs (plaintiffs) were traveling in a westerly direction on New Walkertown Road in Winston-Salem, North Carolina in a 1989 Chevrolet driven by Gloria F. Childs at about 8:00 a.m. on the morning of 12 December 1997. At that same time, defendant Jarvis Eugene Johnson, Jr. (Johnson) was traveling on New Walkertown Road from the opposite direction, driving a 1997 Ford sports utility vehicle (SUV) owned by defendant Forsyth County. Johnson made a left turn across New Walkertown Road to enter a bank parking lot. Johnson claimed that traffic was stopped in two of the three westbound lanes of New Walkertown Road, and that cars in those lanes motioned Johnson to cross in front of them. While crossing the westbound lanes, the front of plaintiffs' Chevrolet struck Johnson's SUV. The collision resulted in both property damage to the vehicles involved and personal injury to both plaintiffs.
At the time of the collision, Johnson was an employee of Forsyth County, serving as Forsyth Emergency Medical Services (EMS) director. Forsyth EMS is a governmentally-operated provider of paramedic emergency health care. Johnson stated that he was on call twenty-four hours a day while in Forsyth County. The SUV he was operating was owned by Forsyth County and was provided for Johnson's use within the borders of the county at Forsyth County's expense in connection with Johnson's position as Forsyth EMS director. At the time of the collision, Johnson was driving to his office. However, Johnson took a detour from the drive to his office and turned into the bank parking lot for the purpose of conducting his own personal financial business. Johnson stated that he was going to "obtain cash for his daily needs."
At the time of the collision, Forsyth County had an insurance policy in place with a "self insured retention" of $250,000.00. However, there was evidence presented that Forsyth County had an additional policy as well, which had a "self insured retention" of $10,000.00. Forsyth County admitted that it had provided ambulance service to individuals outside of Forsyth County and that it had paid claims related to the operation of its EMS vehicles both before and after the collision on 12 December 1997. However, Forsyth County contends it has not paid any claims for personal injury related to collisions involving its EMS vehicles since our Court's holding in McIver v. Smith, 134 N.C. App. 583, 584, 518 S.E.2d 522, 524 (1999), review improvidently granted, McIver v. Smith, 351 N.C. 344, 525 S.E.2d 173 (2000).
Plaintiffs filed a complaint on 14 November 2000 seeking, inter alia, damages from defendant Johnson, and pursuant to the doctrine of respondeat superior, from Johnson's employer, Forsyth County, as a result of the collision between Johnson and plaintiffs. Plaintiffs alleged that Forsyth County had waived governmental immunity by purchasing insurance, and that Johnson was not operating the countyowned SUV for public benefit at the time of the collision. Plaintiffs also served the complaint on the unnamed defendant Windsor Insurance Company (Windsor), a potential uninsured motorist carrier.
Johnson and Forsyth County filed their answer on 4 December 2000 asserting the defense of governmental immunity as a complete bar to recovery by plaintiffs. Defendants also filed a request for the amount of monetary relief sought by each plaintiff pursuant to N.C. Gen. Stat. ยง 1A-1, Rule 8. Plaintiffs served their notice of monetary relief sought on defendants, demanding compensatory damages of $25,000.00 for plaintiff Gloria L. Childs and compensatory damages of $5,000.00 for plaintiff Kimberly F. Childs. The notice stated that, in accordance with N
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