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McCoy v. Coker11/1/2005
immunity." Evans v. Hous. Auth. of Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004). When a county purchases liability insurance, however, it waives governmental immunity to the extent it is covered by that insurance. N.C. Gen. Stat. ยง 153A-435(a)(2004). In the instant case, defendant County of Wayne purchased an insurance policy (the policy) from St. Paul Fire and Marine Insurance Co. (St. Paul).
The dispositive issue concerns whether that policy covered defendant Wayne County for the acts alleged in plaintiff's complaint. If the policy did provide coverage against the alleged negligent acts of Wayne County's building inspector, then Wayne County has waived its governmental immunity and its motion for summary judgment was properly denied. It is defendants' burden to show that no genuine issue of material fact exists that the policy does not cover Wade's actions in the instant case. Marlowe v. Piner, 119 N.C. App. 125, 127-28, 458 S.E.2d 220, 222 (1995).
The policy is comprised of multiple coverage sections, each providing different coverages, limits, and exclusions. Each coverage is self-contained and will be examined separately. Two policy sections are at issue in this appeal, the "Public Entity Management Liability Protection" section [R. pp. 44-51], and the "Public Entity General Liability Protection" section [R. pp. 154-77]. The "Public Entity Management Liability Protection" sectionincludes a section titled Exclusions - What This Agreement Won't Cover.
Injury or Damage. We won't cover loss resulting from injury or damage.
Injury or Damage means:
* ... personal injury ...; or
* property damage.
Bodily Injury means any physical harm, including sickness or disease, to the physical health of any person.
Property Damage means:
* physical damage to tangible property of others, including all resulting loss of use of that property....
This Court has held that exclusionary provisions such as this prevent recovery under a policy for damages due to negligent building inspection. Norton v. SMC Bldg., 156 N.C. App. 564, 577 S.E.2d 310 (2003); Kennedy v. Haywood County, 158 N.C. App. 526, 529-30, 581 S.E.2d 119, 121 (2003). Thus as to the "Public Entity Management Liability Protection" section of the policy, there is no insurance coverage, and consequently no waiver of governmental immunity.
Wayne County also purchased coverage entitled "Public Entity General Liability Protection". The section entitled What This Agreement Covers contains the following:
Bodily injury and property damage liability.
We'll pay amounts any protected person is legally required to pay as damages for covered bodily injury or property damage that:
* happens while this agreement is in effect; and
* is caused by an event.
Event means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.
We note that the definitions of bodily injury and property damage are substantively identical to the definitions in the "Public Entity Management Liability Protection Coverage" section above, and that there is no dispute that Wayne County is a "protected person" as defined in the policy. We also note that there is an extensive list of exclusions in this section of the policy, including breach of contract and deliberately breaking the law. This section of the policy does not, however, contain any exclusion for injury or damage similar to that contained in the "Public Entity Management Liability Protection" section discussed above. Defendants make no argument that the "Public
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