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Meyer v. Walls9/5/1997
ere negligence. We reverse the Court of Appeals' decision as it pertains to the claim against DSS because we hold that since DSS is not a state agency, the Tort Claims Act does not apply to the claim against DSS, and we affirm the Court of Appeals' decision as it pertains to the claims against Underwood, Barrow, and Miller in their official and individual capacities.
DEFENDANT BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES
The trial court dismissed the claim against DSS based on lack of subject matter jurisdiction on the grounds that the action must be brought in the Industrial Commission. The Court of Appeals, however, concluded that jurisdiction depends on the statutory authority for waiver of immunity, that the jurisdictional provisions of N.C.G.S. § 153-435(b) control over those of N.C.G.S. § 143-291(a) where there is a conflict, and that a remand is necessary for a determination as to whether the amount of insurance coverage exceeded the $100,000 cap on recovery under the Tort Claims Act. We disagree with the Court of Appeals' interpretation of the law governing this issue.
The issue before us is whether jurisdiction for the suit against DSS lies before the Industrial Commission pursuant to the Tort Claims Act or before the Superior Court as originally filed by plaintiff. We conclude that jurisdiction resides in the Superior Court. Under the doctrine of sovereign immunity, the State is immune from suit absent waiver of immunity. E.g., Gammons v. N.C. Dep't of Human Resources, 344 N.C. 51, 54, 472 S.E.2d 722, 723 (1996). Under the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity. E.g., State ex rel. Hayes v. Billings, 240 N.C. 78, 80, 81 S.E.2d 150, 152 (1954). An action against a commission or board created by statute as an agency of the State where the interest or rights of the State are directly affected is in fact an action against the State. Prudential Ins. Co. of America v. Powell, 217 N.C. 495, 8 S.E.2d 619 (1940). Likewise, an action against a county agency which directly affects the rights of the county is in fact an action against the county.
N.C.G.S. § 143-291(a) of the Tort Claims Act provides a limited waiver of immunity for negligence claims against all departments, institutions, and agencies of the State. N.C.G.S. § 153A-435 provides that a county's governmental immunity may be waived by the purchase of liability insurance. "Waiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed." Guthrie v. N.C. State Ports Auth., 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983). We hold that because Buncombe County DSS is not a state agency, the Tort Claims Act does not apply.
The Tort Claims Act provides in pertinent part:
(a) The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State. The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.
N.C.G.S. § 143-291(a) (1996) (emphasis added).
This Court has held th
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