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Kephart v. Pendergraph12/15/1998
Appeal by defendants from order filed 20 March 1997 by Judge Ronald K. Payne in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 February 1998.
Defendants appeal the trial court's denial of their motion for summary judgment grounded exclusively upon the defense of sovereign immunity. For the reasons set forth herein, we affirm the order of the trial court.
Detailed exposition of the factual background is unnecessary to determination of this appeal. In brief, plaintiff Michael Edward Kephart was arrested 17 April 1995 for violation of probation and taken to the Mecklenburg County Intake Center (the Center). The Center is the initial processing facility for the Mecklenburg County Jail (the Jail). During a prior incarceration at the Jail, plaintiff had attempted suicide and been diagnosed as depressed and suicidal.
After being processed at the Center following his arrest, plaintiff was placed in a holding cell fully dressed and unmonitored. Plaintiff attempted to commit suicide by hanging himself from a ceiling grate by his necktie. He was discovered approximately ten minutes later, having suffered a severe anoxic brain injury . As a result, plaintiff is permanently disabled and will require lifetime medical, nursing and custodial treatment and supervision.
At the time of the foregoing incident, defendant Mecklenburg County (the County) had in place a Self-Funded Loss Program (the Program) and was covered by a Genesis Insurance Company insurance policy (the Policy). Effective 1 July 1993, the County and the Division of Insurance and Risk Management (DIRM) of the City of Charlotte Finance Department entered into an Administration Agreement which established and implemented the Program. The County delegated to DIRM the necessary authority to provide certain risk management services on behalf of the County in conjunction with the Program.
Contained within the Program was a provision that
he establishment of this Program shall not be deemed to be a waiver of immunity through the purchase of insurance within the meaning of N.C. Gen. Stat. § 153A-435 . . . or the waiver of any defense or rule of governmental or sovereign immunity available to County or to a Member with respect to any Claim asserted against County or a Member. The establishment of this Program shall not constitute the establishment of a Local Government Risk Pool within the meaning of N.C. Gen. Stat. § 58-23-1 et seq.
The Policy, a commercial general liability coverage policy, included the following conditions:
4. Other Insurance.
a. Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. . . .
b. Excess Insurance
This insurance is excess over any of the other insurance, whether primary, excess, contingent on any other basis:
(1) That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work";
Our obligation is to indemnify the insured for damages to which this insurance applies that the insured becomes legally obligated to pay and that exceed the self-insured retention amount(s) . . . up to but not more than the amounts set forth as Limits of Insurance . . . . The insured may make claim for indemnity under this policy as soon as it is determined that damages exceed the self-insured retention amounts . . . . The insured's obligation to pay shall have been determined by judgment against the insured after actual trial or by written agreement of the insured, the claimant and us.
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