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McCoy v. Coker11/1/2005
evant insurance policy where plaintiff alleged a government authority (Washington Housing Authority) charged with maintaining a low income housing project was negligent in its repair of plumbing leaks, termite control, and maintenance of the property grounds, all resulting in significant damages. In holding that this conduct constituted an "accident" under the policy, this Court reasoned that though Washington Housing Authority's actions were intentional, "the resulting damage to the property occasioned thereby was not." Id. at 285-86, 502 S.E.2d at 631. We hold that this reasoning applies in the instant case. Though defendant Wade's acts inspecting plaintiff's propertyand issuing a certificate of occupation were intentional, it was neither intended nor expected that as a result of these acts plaintiff's property would be rendered uninhabitable and plaintiff would suffer health problems. Washington Hous. Auth., 130 N.C. App. at 285, 502 S.E.2d at 630.
We note that to the extent the language of the instant policy differs from that of the cited cases (by omitting "which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured"), the case for defining "accident" under the policy as covering the instant facts is strengthened, not diminished. Further, even were we to conclude that it is impossible on the facts at bar to determine whether the conduct in the instant case constituted an "accident" under the policy, we would be compelled to hold in favor of coverage. Wachovia, 276 N.C. at 354, 172 S.E.2d at 522, Roach, 248 N.C. at 701, 104 S.E.2d at 824-25.
We hold that the policy covers the conduct in question, and that Wayne County has waived immunity to the extent of the insurance coverage purchased. The trial court properly denied the motion for summary judgment. This argument is without merit.
In defendants' first argument, they argue that the trial court erred in denying defendant Wade's motion to dismiss. We agree in part.
Defendant Wade moved pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure to dismiss the claims against him in both his official and individual capacity. Defendants firstcontend that the trial court erred in failing to dismiss the claims against him in his official capacity because they are duplicative of plaintiff's claims against Wayne County. Defendants base their argument on cases such as Moore v. City of Creedmoor, 345 N.C. 356, 481 S.E.2d 14 (1997) and Reid v. Town of Madison, 137 N.C. App. 168, 527 S.E.2d 87 (2000). Defendants are mistaken in this reliance. These cases simply hold that because "official-capacity suits 'generally represent only another way of pleading an action against an entity of which an officer is an agent[,]'" Moore, 345 N.C. at 367, 481 S.E.2d at 21 (citations omitted), the officer holds the same immunity, if any, that the governmental entity holds. Therefore, if the governmental entity is immune from suit, an officer properly acting in his official capacity is immune as well. Reid, 137 N.C. App. at 172, 527 S.E.2d at 90. This does not mean that a plaintiff may not bring suit against both the governmental entity and its officer. Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888 (1997). Of course, judgment against the officer would be recovered from the governmental entity, and plaintiff may have but one recovery. Because we have determined that Wayne County is not immune from suit, we must also hold that Wade is not immune in his official capacity. This argument is without merit.
Defendants next argue that the trial court erred in failing to dismiss plaintiff's claims against Wade in his individual capacity because he was entitled to imm
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