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Lyles v. City of Charlotte and Motorola Inc.11/8/1996
The plaintiff, as duly appointed administratrix of the estate of Milus Terry Lyles, brought this action for the wrongful death of her husband. Defendant City of Charlotte filed a motion for judgment on the pleadings or, in the alternative, motion for summary judgment.
The papers filed in support of and in opposition to the motion tended to show the following. The plaintiff's intestate was killed while on duty as a Charlotte police officer. While the plaintiff's intestate was transporting a prisoner in an automobile, the prisoner was able to get control of a pistol and shoot the plaintiff's intestate twice in the back. A bullet-proof vest kept the shots from entering the officer's back, but he lost control of the automobile. The officer left the vehicle and attempted to call for help on his portable radio as he had been instructed. The radio did not work, and the officer started towards his automobile to use the radio in the vehicle. He was then shot to death by the prisoner. The plaintiff alleged that the defendants had intentionally instructed her intestate to use the portable radio in a certain way, knowing that if used that way, the radio would not function and that there was a substantial certainty that this improper use would result in the death or serious injury of an officer.
The City of Charlotte had entered into an agreement with Mecklenburg County and the Charlotte-Mecklenburg Board of Education under the terms of which a Division of Insurance and Risk Management (DIRM) was created to handle liability claims asserted against the three entities. Each entity pays funds into separate trust accounts from which DIRM pays claims against each entity. The funds are not commingled. Each entity must pay from its trust account the first $500,000 of any claim against it. If an entity has a claim against it that exceeds $500,000 and that entity does not have sufficient funds in the DIRM to pay it, the entity may use funds that one of the other entities has in the DIRM in excess of $500,000. This money must be repaid with interest. The DIRM will not pay any claim in excess of $1,000,000.
The City also had in force at that time an insurance policy with General Reinsurance Corporation for claims by employees between $250,000 and $1,250,000. This policy paid for claims "because of bodily injury by accident or bodily injury by disease." It excluded coverage for "bodily injury intentionally caused or aggravated by or at the direction of the Insured."
The superior court denied the City's motion for judgment on the pleadings or, in the alternative, motion for summary judgment, and the Court of Appeals affirmed. We allowed the City's petition for discretionary review.
WEBB, Justice.
The Court of Appeals based its decision on its holding that the City of Charlotte had waived its sovereign immunity by participating in a local government risk pool. N.C.G.S. § 160A-485 provides that a city may waive its sovereign immunity for civil liability in tort by purchasing liability insurance or by participating in a local government risk pool pursuant to article 23 of General Statutes chapter 58. N.C.G.S. § 58-23-5 provides in part:
In addition to other authority granted pursuant to Chapters 153A and 160A of the General Statutes, two or more local governments may enter into contracts or agreements pursuant to this Article for the joint purchasing of insurance or to pool retention of their risks for property losses and liability claims and to provide for the payment of such losses of or claims made against any member of the pool on a cooperative or contract basis with one another . . . .
N.C.G.S. § 58-23-5 (1994). N.C.G.S. § 58-23-15
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