Craig Ex Rel. Craig v. New Hanover County Board of Education

648 S.E.2d 923, 185 N.C. App. 651, 2007 N.C. App. LEXIS 1941
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 2007
DocketCOA07-80
StatusPublished
Cited by18 cases

This text of 648 S.E.2d 923 (Craig Ex Rel. Craig v. New Hanover County Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Craig Ex Rel. Craig v. New Hanover County Board of Education, 648 S.E.2d 923, 185 N.C. App. 651, 2007 N.C. App. LEXIS 1941 (N.C. Ct. App. 2007).

Opinions

HUNTER, Judge.

The New Hanover County Board of Education (“defendant” or “the Board”) appeals from an order denying its motion for summary judgment. After careful review, we reverse.

Jon-Paul Craig (“plaintiff’) is a 14-year-old mentally disabled boy. Beginning in sixth grade, he was enrolled in the mainstream school Roland Grise Middle School. In December 2003, he and his mother moved to a new home, putting plaintiff’s placement in the school at risk due to transportation issues. Before this issue could be resolved, on 6 January 2004, plaintiff’s mother, Kimberly Craig, was called by an assistant principal from Roland Grise and told there had been some “ ‘sexual experimentation’ ” between plaintiff and another boy in his class. The following day, the same assistant principal informed Ms. Craig that plaintiff was being suspended for ten days; eventually, defendant decided to deny him placement at Roland Grise for the remainder of the school year.

Plaintiff’s mother and next friend, Ms. Craig, brought suit against defendant, making two claims: First, that plaintiff was denied his constitutional right to and liberty interest in education free from harm, and second, that defendant and its employees had negligently [653]*653allowed the assault to occur.1 Defendant moved for summary judgment, and the trial court denied the motion. Defendant appeals that ruling.

While denial of a summary judgment motion is interlocutory and thus ordinarily not appealable at this stage, because defendant is claiming sovereign immunity as a complete defense, it can immediately appeal the order per N.C. Gen. Stat. § 7A-27(d)(l) (2005). See, e.g., Williams v. Scotland Cty., 167 N.C. App. 105, 106, 604 S.E.2d 334, 335 (2004) (holding that denial of a city’s summary judgment motion constituted a “substantial right” for purposes of the statute), disc. review denied, 359 N.C. 327, 611 S.E.2d 168 (2005).

Defendant makes two arguments to this Court, each of which applies to only one of its claims: The argument that defendant has not waived its immunity to suit applies only to plaintiff’s common-law negligence claim, and the argument that plaintiff has an adequate remedy at state law applies only to plaintiff’s constitutional claim. We consider each argument in turn.

I.

First, defendant argues that it has not waived its immunity to suit, including plaintiff’s potential suit for common-law negligence, because its insurance policy does not cover the actions at issue. “A county or city board of education is a governmental agency and its employees are not ordinarily liable in a tort action unless the board has waived its sovereign immunity.” Herring v. Liner, 163 N.C. App. 534, 537, 594 S.E.2d 117, 119 (2004) (citations omitted). This immunity may be waived if the conditions in N.C. Gen. Stat. § 115C-42 (2005) are met. That statute provides in pertinent part:

Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort.

[654]*654Id. (emphasis added). Both parties agree that defendant has purchased liability insurance: Defendant has $150,000.00 of indemnification through the North Carolina School Boards Trust (“NCSBT”), as well as $850,000.00 through Folksamerica Reinsurance Policy (both parties refer to this as the “excess insurance policy”) for certain claims of negligence against defendant and its employees that exceed $150,000.00. Both parties agree, as do this Court’s prior holdings, that the purchase of insurance through NCSBT does not constitute waiver because NCSBT does not qualify as liability insurance under the definition given in N.C. Gen. Stat. § 115C-42. See, e.g., Ripellino v. N.C. School Bds. Ass’n, 158 N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003), cert. denied, 358 N.C. 156, 592 S.E.2d 694-95 (2004) (holding that a school board’s participation in NCSBT did not qualify as a purchase of insurance per definition in N.C. Gen. Stat. § 115C-42); Lucas v. Swain Cty. Bd. of Educ., 154 N.C. App. 357, 361-62, 573 S.E.2d 538, 540-41 (2002) (same); Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C. App. 435, 439, 477 S.E.2d 179, 181 (1996) (holding that a school board’s participation in a risk management program similar to NCSBT did not constitute the purchase of liability insurance as defined by N.C. Gen. Stat. § 115C-42). As such, defendant has not waived immunity for the first $150,000.00 of coverage. Thus, we are concerned only with the terms of the excess insurance policy for the next $850,000.00.

Defendant states that the excess insurance policy excludes

any Claim arising out of or in connection with:... (c) sexual acts, sexual molestation, sexual harassment, sexual assault, or sexual misconduct of any kind; or (d) acts of deliberate indifference... . The Excess Insurance (if any) does not provide coverage in any amount for Claims to which this exclusion applies, including[,] but not limited to[,] claims for negligent hiring, negligent retention and/or negligent supervision.

Thus, the issue before this Court is whether this policy covers the negligence claim that plaintiff would bring under state law. If it does, the Board has waived immunity, and plaintiff may continue the suit; if it does not, the Board has not waived immunity, and summary judgment must be granted in favor of the Board.

Plaintiff asserts that his claim “sounds in negligence because of the negligent failure to supervise.” The negligent failure to supervise is explicitly excluded by the language above. In his argument to this [655]*655Court, plaintiff does not make an argument for any claim he might bring that would not fall under the exclusionary language above.

The dissent argues at length that sovereign immunity cannot bar a constitutional claim, which is indeed true; however, that is not the issue in this case. As explained above, our consideration of the Board’s sovereign immunity applies only to plaintiffs common-law negligence claim.

From plaintiff’s complaint and the plain language of the contract, it is clear that the policy excludes any claim plaintiff might bring against the Board, and as such, the Board has not waived immunity and the claim must fail.

II.

Defendant next addresses the issue of whether an adequate state remedy exists.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Britt v. Wake Cnty. Sheriff's Off.
Court of Appeals of North Carolina, 2026
Sharpe v. Best
E.D. North Carolina, 2025
York v. Lutz
E.D. North Carolina, 2023
Bernstein v. Sims
E.D. North Carolina, 2023
A. G. v. The City of Statesville
W.D. North Carolina, 2021
Taylor v. Wake Cty.
811 S.E.2d 648 (Court of Appeals of North Carolina, 2018)
Barrett v. Board of Education
13 F. Supp. 3d 502 (E.D. North Carolina, 2014)
Craig Ex Rel. Craig v. New Hanover County Board of Education
678 S.E.2d 351 (Supreme Court of North Carolina, 2009)
Frye v. Brunswick County Board of Education
612 F. Supp. 2d 694 (E.D. North Carolina, 2009)
Copper Ex Rel. Copper v. Denlinger
667 S.E.2d 470 (Court of Appeals of North Carolina, 2008)
Carl v. State
665 S.E.2d 787 (Court of Appeals of North Carolina, 2008)
Keystone Builders Resource Group, Inc. v. Town of Indian Trail
663 S.E.2d 14 (Court of Appeals of North Carolina, 2008)
Iglesias v. Wolford
539 F. Supp. 2d 831 (E.D. North Carolina, 2008)
Craig v. NEW HANOVER COUNTY BOARD OF EDUCATION
659 S.E.2d 439 (Supreme Court of North Carolina, 2008)
Craig Ex Rel. Craig v. New Hanover County Board of Education
648 S.E.2d 923 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
648 S.E.2d 923, 185 N.C. App. 651, 2007 N.C. App. LEXIS 1941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craig-ex-rel-craig-v-new-hanover-county-board-of-education-ncctapp-2007.