Meyer v. Walls9/5/1997
E.2d 422, 427 (1996). In support of this statement, the Court of Appeals cited Vaughn v. N.C. Dep't of Human Resources, 296 N.C. 683, 690, 252 S.E.2d 792, 797 (1979); EEE-ZZZ Lay Drain Co. v. N.C. Dep't of Human Resources, 108 N.C. App. 24, 28, 422 S.E.2d 338, 341 (1992); and Coleman v. Cooper, 102 N.C. App. 650, 657-58, 403 S.E.2d 577, 581-82, disc. rev. denied, 329 N.C. 786, 408 S.E.2d 517 (1991).
In Vaughn and Gammons, the plaintiffs sued the Department of Human Resources ("DHR") in the Industrial Commission under the Tort Claims Act. The issue in Vaughn and Gammons was whether DHR could be held vicariously liable as principal for the acts of a county DSS as agent. In the case at bar, plaintiff is seeking recovery directly against a county DSS, the alleged agent, rather than DHR, the alleged principal. Thus, Vaughn and Gammons do not support a holding that the Tort Claims Act applies to a suit against the alleged agent. In fact, in Vaughn and Gammons, this Court held that the county departments of social services were agents of DHR. The Tort Claims Act lists agents in a category with officers, employees, and involuntary servants, rather than with state departments, institutions, and agencies. An agent of the State and a state agency are fundamentally different and are treated differently by the Tort Claims Act.
As we stated above, a statutory waiver of sovereign immunity must be strictly construed. Therefore, the Tort Claims Act applies only to actions against state departments, institutions, and agencies and does not apply to claims against officers, employees, involuntary servants, and agents of the State. To the extent that any cases are inconsistent with this holding, they are overruled. See Robinette v. Barriger, 116 N.C. App. 197, 447 S.E.2d 498 (1994) (holding that the Alexander County Health Department is a state agency, rather than a county agency, and that because the Industrial Commission has exclusive jurisdiction of negligence actions against the State, the trial court did not err in granting summary judgment for the county based on a lack of subject matter jurisdiction), aff'd per curiam without precedential value, 342 N.C. 181, 463 S.E.2d 78 (1995); EEE-ZZZ Lay Drain Co. v. N.C. Dep't of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (holding that because the Transylvania County Health Department acted as an agent of the North Carolina Department of Environment, Health, and Natural Resources ("DEHNR"), the county health department was, like DEHNR, immune from suit); Coleman v. Cooper, 102 N.C. App. 650, 658, 403 S.E.2d 577, 582 (holding that a cause of action against Wake County as a subordinate division of the State must be brought before the Industrial Commission under the Tort Claims Act). We note that in Gammons, this Court stated that in Coleman, the Court of Appeals correctly applied Vaughn in determining that Wake County DSS was acting as an agent of DHR; however, we made no reference to whether Wake County could be sued under the Tort Claims Act.
For the foregoing reasons, the Tort Claims Act does not apply to the claim against Buncombe County DSS, regardless of whether Buncombe County DSS was acting as an agent of DHR. However, under the doctrine of governmental immunity, the claim would still be subject to dismissal unless Buncombe County waived immunity. In the complaint, plaintiff alleged that Buncombe County waived immunity pursuant to N.C.G.S. § 153A-435(a) through the purchase of liability insurance. N.C.G.S. § 153A-435(a) provides in pertinent part that the "purchase of insurance pursuant to this subsection waives the county's immunity, to the extent of insurance coverage, for any act or omission occurring in the exercise of a governmental function."
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