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Kephart v. Pendergraph12/15/1998
d the entire first $100,000.00, of plaintiffs' damages. Although defendants insist " t is undisputed that the SIR has not yet been exhausted by claims expenses," as the instant litigation proceeds attended by the inevitable accumulation of claim expenses, the SIR amount of $100,000.00 might indeed become "exhausted" by claim expenses. Such an event would thereby implicate the Policy provision affording indemnification "when damages together with `claim expenses' exceed the Self Insured Retention" (emphasis added). Accordingly, defendants' argument to the contrary, partial summary judgment in their favor on plaintiffs' claims for damages of "less than $100,000" would likewise have been inappropriate. The trial court was confronted with a genuine issue of material fact as to whether some portion of the SIR up to $100,000.00 might become "exhausted" by "claim expenses," see id.; see also Maddox, 303 N.C. at 650, 280 S.E.2d at 908 (any ambiguity in meaning of policy provision to be resolved against insurance company), thereby implicating attachment of the indemnification provision of the Policy to the equivalent portion of plaintiff's yet-to-be-determined damages.
In sum, sovereign immunity is waived "to the extent of insurance coverage." See G.S. ยง 153A-435(a),(b). The coverage of the Policy herein is, by its terms, dependent upon the amount of damages awarded to plaintiffs. We thus "cannot that plaintiff would fail to obtain an award greater than [the amount of self-insurance less claim expenses] as a matter of law." Wilhelm, 121 N.C. App. at 90, 464 S.E.2d at 301. Therefore, defendants have failed to show the absence of a genuine issue of material fact, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350, and the trial court did not err in denying defendants' summary judgment motion grounded upon sovereign immunity.
Plaintiffs also argue defendant Sheriff is not accorded sovereign immunity from suit arising out of his alleged violation of statutory standards. In light of the result reached above, it is unnecessary to address this issue. We note, however, defendants' concession for purposes of their motion to dismiss "that Sheriff Pendergraph's sovereign immunity is waived only up to the amount of his bond (defendant Peerless is the surety on the sheriff's bond)."
Affirmed.
Judges WYNN and MCGEE concur.
Judge WYNN concurred prior to 1 October 1998.
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