 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Meyer v. Walls9/5/1997
We conclude that plaintiff sufficiently alleged a waiver of immunity by Buncombe County through the purchase of liability insurance. Therefore, the trial court improperly dismissed the claim against Buncombe County DSS for lack of subject matter jurisdiction.
Defendants DSS, Underwood, Barrow, and Miller argue that this claim may be brought against only DHR, as principal, and not defendants, as agents. This argument is contrary to clearly established law. Although a plaintiff may not receive a double recovery, he may seek a judgment against the agent or the principal or both. See Bowen v. Iowa Nat'l Mut. Ins. Co., 270 N.C. 486, 155 S.E.2d 238 (1967); Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810; Palomino Mills v. Davidson Mills Corp., 230 N.C. 286, 52 S.E.2d 915 (1949). Therefore, the fact that defendants may have been acting as agents of the State does not preclude a claim against defendants.
Furthermore, the fact that the Tort Claims Act provides for subject matter jurisdiction in the Industrial Commission over a negligence claim against the State does not preclude a claim against defendants in Superior Court. A plaintiff may maintain both a suit against a state agency in the Industrial Commission under the Tort Claims Act and a suit against the negligent agent or employee in the General Court of Justice for common-law negligence. See Wirth v. Bracey, 258 N.C. at 507-08, 128 S.E.2d at 813 (holding that plaintiff's suit against a state employee was not barred by the doctrine of election). As this Court explained in Wirth v. Bracey :
"The decisions generally are to the effect that in an action ex delicto, where the doctrine of respondeat superior is, or may be, invoked, the injured party may sue the servant alone or the master alone, or may bring a single action against both." Bullock v. Crouch, 243 N.C. 40, 42, 89 S.E.2d 749[, 751 (1955)].
Prior to the enactment of the Tort Claims Act the Highway Commission, as an agency or instrumentality of the State, enjoyed immunity to liability for injury or loss caused by the negligence of its employees. Even so, then as now, an employee of such agency was personally liable for his own actionable negligence. The Tort Claims Act, waiving governmental immunity to that extent, permitted recovery against the State agency as therein provided. The obvious intention of the General Assembly in enacting the Tort Claims Act was to enlarge the rights and remedies of a person injured by the actionable negligence of an employee of a State agency while acting in the course of his employment.
Wirth v. Bracey, 258 N.C. at 507-08, 128 S.E.2d at 813 (citations omitted). We note that the State may be joined as a third-party defendant in the state courts in an action for contribution or in an action for indemnification. See N.C.G.S. § 1A-1, Rule 14(c) (1990); N.C.G.S. § 1B-1(h) (1983); Guthrie v. N.C. State Ports Auth., 307 N.C. at 540, n.5, 299 S.E.2d at 628, n.5; Teachy v. Coble Dairies, Inc., 306 N.C. 324, 331, 293 S.E.2d 182, 186 (1982).
For the foregoing reasons, the fact that defendants may have been acting as agents of DHR does not render defendants immune from suit in Superior Court. Therefore, the trial court properly denied the motion to dismiss the claims against Underwood, Barrow, and Miller for lack of subject matter jurisdiction. Also, plaintiff sufficiently alleged a waiver of immunity by Buncombe County through the purchase of liability insurance. Therefore, the trial court improperly allowed the motion to dismiss the claim against Buncombe County DSS for lack of subject matter jurisdiction.
DEFENDANTS UNDERWOOD, BARROW, AND MILLER
The complaint stated in its caption and in
Page 1 2 3 4 5 6 7 8 9 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|