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Dawes v. Nash County2/19/2002
nary clause or its exception, and keeping in mind the general rule that waiver of governmental immunity is not to be lightly inferred, we conclude that the trial court was correct in its conclusion that the Policy does not cover the acts complained of by Plaintiff, and that Nash County is entitled to governmental immunity as a defense to Plaintiff's suit.
Affirmed.
Judge McCULLOUGH concurs.
Judge GREENE dissents in a separate opinion.
GREENE, Judge, dissenting.
As I believe the trial court erred in granting Defendants' motion for summary judgment based on the doctrine of governmental immunity, I dissent.
When the language used in a provision of an insurance policy is clear and unambiguous, it will be accorded its plain meaning. Walsh v. Ins. Co., 265 N.C. 634, 639, 144 S.E.2d 817, 820 (1965). In this case, Defendants' insurance policy excludes coverage for " ersonal 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, as Defendants contend, 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." State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986). 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. Consequently, I believe the trial court erred in finding Defendants were shielded by governmental immunity and summary judgment should therefore be reversed.
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