Ripellino v. N.C. School Boards Ass'n, Inc.

627 S.E.2d 225, 176 N.C. App. 443, 2006 N.C. App. LEXIS 537

• Court: Court of Appeals of North Carolina
• Decided: March 7, 2006
• Docket: COA04-1681.
• Status: Published

Opinions

CALABRIA, Judge.

Michael G. Ripellino, Louise A. Ripellino, and Nicole Ripellino (collectively "plaintiffs") appeal from orders granting summary judgment and judgment on the pleadings to the Johnston County Board of Education ("the Board") and to the North Carolina School Boards Association, Inc.; the North Carolina School Boards Trust; 1982 North Carolina School Boards Association Self-Funded Trust Fund; 1986 North Carolina School Boards Association Self-Funded Errors and Omissions/General Liability Trust Fund; and the 1997 North Carolina School Boards Association Self-Funded Auto/Inland Marine Trust Fund (collectively "Trust Defendants"). We reverse and remand.

A summary of the facts in this case are set out in Ripellino v. North Carolina School Boards Association, Inc., 158 N.C.App. 423 , 425, 581 S.E.2d 88 , 90 (2003) ( "Ripellino I" ) as follows:

At the end of classes on 9 March 1998, [Nicole Ripellino ("Nicole")] was departing from Clayton High School in Johnston County in her parent[s'] vehicle. A traffic control gate owned by the Johnston County Board of Education ("the Board") swung closed, struck the vehicle, and injured Nicole. In October 1998, the Ripellinos were paid $2,153.18 for property damage. The Board refused to pay medical expenses or other compensation.

On 26 March 2001 . . . plaintiffs filed suit against the Board, and [the Trust Defendants]. Plaintiffs alleged (1) a negligent personal injury claim against the Board on the part of Nicole, (2) a medical expenses claim on the part of Nicole's parents against the Board, (3) declaratory judgment that immunity had been waived through (a) participation in the trust and (b) the payment of property damages, (4) unfair and deceptive trade practices against all defendants, (5) 42 U.S.C. § 1983 claim . . . and constitutional claims against all defendants, and (6) punitive damages.

Upon motion of the Board, the trial court bifurcated the trial allowing the issues of whether the Board was immune from suit and whether the Board had waived sovereign immunity to be resolved while the other claims were stayed. . . . [T]he trial court granted summary judgment in favor of all defendants on all claims. Plaintiffs appeal[ed.] . . .

In Ripellino I, this Court held, inter alia: (1) the Board waived sovereign immunity to the extent that its insurance policies covered claims in excess of $100,000 and less than $1,000,000; (2) the Board could not use sovereign immunity as a defense against constitutional and 42 U.S.C. § 1983 claims; and (3) the Board was immune from punitive damages claims because it is a governmental entity. Id.

On remand to the trial court after Ripellino I, the Board and the Trust Defendants filed motions for summary judgment for all non-constitutional claims and judgment on the pleadings for claims under 42 U.S.C. § 1983 and the North Carolina Constitution. The trial court entered orders for summary judgment and judgment on the pleadings. Plaintiffs appeal.

I. Summary Judgment as to the Non-Constitutional Claims

Plaintiffs argue the trial court erred by granting the Board's and the Trust Defendants' motions for summary judgment regarding the non-constitutional claims. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005). "In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, taking the non-movant's asserted facts as true, and drawing all reasonable inferences in her favor." Glenn-Robinson v. Acker, 140 N.C.App. 606 , 611, 538 S.E.2d 601 , 607 (2000). On appeal, we review the granting of a summary judgment motion de novo. Granville Farms, Inc. v. County of Granville, 170 N.C.App. 109 , 110-12, 612 S.E.2d 156 , 158 (2005).

Plaintiffs specifically argue that the trial court erred by granting the Board's and the Trust Defendants' motions for summary judgment regarding the non-constitutional claims because the plaintiffs presented evidence on all the elements of a negligence claim and sovereign immunity is waived to the extent the Board's insurance policy provides coverage for claims in excess of $100,000 and less than $1,000,000. Plaintiffs additionally contend that their claim is within this monetary range and included in the broad wording of the Trust Agreement, which provides coverage for:

all or part of a Claim made or any civil judgment entered against any of its members . . . when such Claim is made or such judgment is rendered as Damages on account of any act done or omission made . . . in the scope of their duties as members of the local board of education or as employees.

The Board responds the trial court properly granted summary judgment because Exclusion Number 18 in the Coverage Agreement excludes coverage for "any Claim arising out of the ownership, maintenance, operation, use, loading or unloading of any Automobile" and Nicole was hit by a gate while driving an automobile. Plaintiffs contend, however, that the malfunctioning of the gate could have occurred even if Nicole had not been driving a car and the gate would have injured her even if she had been walking or riding a bicycle. We agree with plaintiffs and reverse because the forecast of evidence leaves no material dispute over the fact that plaintiffs' injuries did not "arise out of" the use of an automobile.

Our Supreme Court has held that "the standard of causation applicable to the ambiguous `arising out of' language . . . is one of proximate cause." State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534 , 547, 350 S.E.2d 66 , 74 (1986). "Proximate cause is a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed." Mattingly v. North Carolina R.R., 253 N.C. 746 , 750, 117 S.E.2d 844 , 847 (1961). Viewing the evidence in the light most favorable to defendants, no material dispute exists as to the proximate cause of plaintiffs' injury. Although defendants argue that plaintiff traveled in a car at the time of the incident, they have failed to show an automobile proximate cause, i.e., any action or omission by plaintiffs' automobile that would have resulted in a person of ordinary prudence foreseeing plaintiffs' injuries. Since there is no automobile proximate cause on these facts, plaintiffs' injury did not fall within the language of Exclusion 18, and we reverse the summary judgment in favor of the Board and remand for entry of summary judgment in favor of plaintiffs. Likewise, because the trial court erred in granting summary judgment in the Board's favor, it also erred in granting summary judgment in the Trust Defendants' favor, whose liability is derivative to the Board's liability. Accordingly, we reverse summary judgment in favor of the Trust Defendants and remand for entry of summary judgment in favor of plaintiffs.

II. Judgment on the Pleadings as to the Constitutional Claims

Plaintiffs argue that the trial court erred in granting judgment on the pleadings in favor of defendants regarding the state constitutional claims and United States constitutional claims under 42 U.S.C. § 1983 . "The granting of judgment on the pleadings is proper when there does not exist a genuine issue of material fact, and the only issues to be resolved are issues of law. In reviewing a motion for judgment on the pleadings, [this] court must consider the evidence in the light most favorable to the non-moving party, accepting as true the factual allegations as pled by the non-moving party." Davis v. Durham Mental Health/Dev. Disabilities/Substance Abuse Area Auth., 165 N.C.App. 100 , 105, 598 S.E.2d 237 , 241 (2004) (citations omitted). Moreover, when reviewing a trial court's granting of a Rule 12(c) motion, this Court considers, "only the pleadings and exhibits which are attached and incorporated into the pleadings[.]" See id., 165 N.C.App. at 104 , 598 S.E.2d at 240 (citations omitted).

Plaintiffs argue that their equal protection and due process rights have been violated under our federal and state constitution. Plaintiffs seek to use 42 U.S.C. § 1983 to enforce their federal constitutional rights. See Gonzaga University v. Doe, 536 U.S. 273 , 285, 122 S.Ct. 2268 , 2276, 153 L.Ed.2d 309 , 322 (2002) ("Section 1983 . . . provides a mechanism for enforcing individual rights `secured' elsewhere, i.e., rights independently secured by the Constitution and laws of the United States"). Plaintiffs' claims are based on their contentions that: (1) the Board has a "policy and custom of paying some claims but not paying others, when immunity could be raised in each one," and (2) the Board has "paid the property damage, but [has] asserted immunity in the remaining portion of Plaintiff's claim[.]"

They also seek to remedy these alleged deprivations directly under our state constitution, which states:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

N.C. Const. art. I, § 19.

Plaintiffs specifically allege, in pertinent part:

15. Upon information and belief, in the past, the Association, Trust Defendants, and The Johnston County Board of Education could have raised the doctrine of immunity on many tort claims, but chose instead, for various reasons that will be proven at trial, to pay claims even in light of the immunity defense. Upon information and belief, the Association and Trust Defendants, in conjunction with The Johnston County Board of Education, would examine each claim to see if the immunity doctrine could be raised . . . but thereafter some claims were nevertheless paid. This disparate treatment of claimholders is prohibited by the United States and North Carolina Constitutions, as well as 42 U.S.C. § 1983 . . . .

44. At all times pertinent hereto, [defendants] . . . in claiming immunity as to the Plaintiffs' claims for personal injury and medical expenses, . . . have subjected these Plaintiffs to the deprivation of their equal protection and substantive due process rights under the United States Constitution, as enforced by 42 U.S.C. § 1983 , and Article 1, [§] 19 of the North Carolina Constitution.

45. These Plaintiffs have been denied due process and equal protection of the law as the Defendants have paid the property damage, but have asserted immunity in the remaining portion of Plaintiffs' claim, but have, upon information and belief, customarily waived it for similarly situated individuals who have been compensated for tort damages.

46. [Defendants'] policy and custom of paying some claims but not paying others, when immunity could be raised in each one, has played a part in the violation of federal and state law. Additionally, the Defendants' conduct in this case, of paying the property damage, and assuming liability for the claim, and then refusing to pay the personal injury and medical expense portion of the claim, is a violation of Plaintiffs' federal and state constitutional rights, as a matter of law.

47. Upon information and belief, the [Defendants] have what amounts to be unbridled discretion to resolve claims filed with the local board of education.

48. As a result of the conduct of these Defendants, the Plaintiffs have been deprived of their right to recover for the bodily injury and medical expenses portion of the Ripellino claim.

49. The Fourteenth Amendment to the United States Constitution, Article I, [§] 19 of the North Carolina Constitution, and 42 U.S.C. § 1983 protect these Plaintiffs against intentional and arbitrary discrimination, being the conduct of the [defendants] as to these Plaintiffs.

50. As a proximate result of the Fifth and Fourteenth Amendments to the United States Constitution, Article 1.[§] 19 of the Constitution of the State of North Carolina, and 42 U.S.C. § 1983 violations by [defendants], the Plaintiffs are entitled to recover damages.

These allegations amount to more than "conclusory, unwarranted deductions of fact, or unreasonable inferences," Good Hope Hosp., Inc. v. N.C. Dep't. of Health and Human Serv., ___ N.C.App. ___, ___, 620 S.E.2d 873 , 880 (2005) (citations omitted), and comply with the liberal standard of notice pleading applied in this State, under which "a claim is adequate if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand its nature and basis and to file a responsive pleading." Mullis v. Sechrest, 347 N.C. 548 , 554, 495 S.E.2d 721 , 724 (1998) (citations omitted).

In regard to the judgment on the pleadings as to the claims under 42 U.S.C. § 1983 , we consider an issue of first impression, whether a school board is a person within the meaning of 42 U.S.C. § 1983 .

By federal statute,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983 (2005).

The Board argues that the trial court properly granted judgment on the pleadings because it is well-settled that neither the State of North Carolina nor its respective agencies are "persons" within the meaning of § 1983 when the remedy sought is monetary damages. In Will v. Michigan Dep't. of State Police, the United States Supreme Court held that states are not "persons" within the meaning of § 1983 and further noted that "in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration[.]" 491 U.S. 58 , 66-67, 109 S.Ct. 2304 , 2310, 105 L.Ed.2d 45 , 55 (1989). In Howlett v. Rose, the Supreme Court reemphasized that "the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity are not subject to suit under § 1983 in either federal court or state court." 496 U.S. 356 , 365, 110 S.Ct. 2430 , 2437, 110 L.Ed.2d 332 , 346 (1990). The opinion clarified which law applies: "[T]he elements of, and the defenses to, a federal cause of action [such as § 1983] are defined by federal law[,]" id., 496 U.S. at 375 , 110 S.Ct. at 2442 , 110 L.Ed.2d at 352 , and "[t]o the extent that the [state] law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law." Id., 496 U.S. at 377-78 , 110 S.Ct. at 2444 , 110 L.Ed.2d at 354 . Accordingly, we apply federal law to determine whether our local school boards should be considered "persons" within the meaning of § 1983.

In Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), the United States Supreme Court considered "whether [an Ohio city's] Board of Education [was] to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or [was] instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend." Id., 429 U.S. at 280 , 97 S.Ct. at 572 , 50 L.Ed.2d at 479 . The Court noted that, "the answer depends, at least in part, upon the nature of the entity created by state law." Id. The Court considered that under Ohio law the "State" did not include "political subdivisions." Local school boards were expressly considered part of "political subdivisions," and therefore, were not part of the State. The Court also found significant that even though the local school boards received money and guidance from the State, they could also issue bonds and levy taxes. These facts lead the Supreme Court to conclude that the Ohio local school board was "more like a county or city than it is like an arm of the State." Id.

Although we recognize that Eleventh Amendment immunity is a separate inquiry from whether or not a given entity is a "person" within the meaning of § 1983, Eleventh Amendment immunity is, nonetheless, a consideration in determining congressional intent under § 1983. See Will, supra. We, therefore, consider the nature of the local school boards under North Carolina law. See Mt. Healthy, supra.

There is conflicting authority from our Supreme Court about whether local school boards are considered local entities or part of the State. Our Supreme Court has most recently held, "County and city boards of education serve very important, though purely local functions. The State contributes to the school fund, but the local boards select and hire the teachers, other employees and operating personnel. The local boards run the schools." Turner v. Gastonia City Bd. of Educ., 250 N.C. 456 , 463, 109 S.E.2d 211 , 216 (1959). In Turner, our Supreme Court also held that the Tort Claims Act does not apply to local school boards, except as amended by N.C. Gen.Stat. § 143-300.1, because "[i]n no sense may we consider the Gastonia City Board of Education in the same category as the State Board of Education and the State Highway & Public Works Commission." Id. See also Crump v. Bd. of Educ. of Hickory Admin. Sch. Unit., 326 N.C. 603 , 392 S.E.2d 579 (1990) (applying § 1983 to remedy a due process violation by a local school board when it is not clear if the issue of a local school board being "a person" within the meaning of § 1983 was raised by the parties).

However, in an earlier decision, our Supreme Court said:

The public school system, including all its units, is under the exclusive control of the State, organized and established as its instrumentality in discharging an obligation which has always been considered direct, primary and inevitable. When functioning within this sphere, the units of the public school system do not exercise derived powers such as are given to a municipality for local government, so general as to require appropriate limitations on their exercise; they express the immediate power of the State, as its agencies for the performance of a special mandatory duty resting upon it under the Constitution and under its direct delegation.

Bridges v. Charlotte, 221 N.C. 472 , 478, 20 S.E.2d 825 , 830 (1942). See also Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1 , 10-11, 418 S.E.2d 648 , 655 (1992) (holding that the doctrine of nullum tempus applied to a local school board because it was "acting as an arm of the State and pursuing the governmental function of constructing and maintaining its schools." (Emphasis added)).

Since precedent is unclear whether school boards are considered part of the State, we consider the underlying structure of our school system. The North Carolina Constitution emphasizes the importance of education in our state: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged." N.C. Const. art. IX, § 1. Our forefathers further provided: "The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students." N.C. Const., art. IX, § 2(1).

Pursuant to these constitutional mandates, our General Assembly has enacted legislation for "[a] general and uniform system of free public schools . . . throughout the State." N.C. Gen.Stat. § 115C-1. The State Board of Education is vested with the powers to oversee "general supervision and administration of the free public school system." N.C. Gen.Stat. § 115C-12. Local boards of education responsibilities include the duty "to provide adequate school systems within their respective local school administrative units." N.C. Gen.Stat. § 115C-47(1). By statute, local boards are corporate bodies that can sue and be sued. N.C. Gen.Stat. § 115C-40. Yet, the fact that our local school boards are corporate bodies "does not mean that the Legislature has waived immunity from liability for torts for such boards." Fields v. Durham City Bd. of Educ., 251 N.C. 699 , 111 S.E.2d 910 (1960). It is noteworthy, however, that whether an entity has sovereign immunity under state law is not determinative of whether that entity is part of the State for purposes of federal law. For instance, entities, such as counties, have sovereign immunity under state law but are not part of the State under federal law. See Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C.App. 680 , 683, 529 S.E.2d 458 , 461 ("As a general rule, the doctrine of governmental, or sovereign immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity. The doctrine applies when the entity is being sued for the performance of a governmental function. But it does not apply when the entity is performing a ministerial or proprietary function"). But cf. Monell v. Dept. of Social Serv. of New York, 436 U.S. 658 , 690, 98 S.Ct. 2018 , 2035, 56 L.Ed.2d 611 , 635 (1978) ("Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies").

Also relevant to our discussion is the manner chosen by our General Assembly to select members of local boards of education. The members are elected in local elections. N.C. Gen.Stat. § 115C-37(b). However, there is some authority from our Supreme Court that members of local boards of education hold a public office under the State. See Edwards v. Bd. of Educ. of Yancey County, 235 N.C. 345 , 70 S.E.2d 170 (1952) (holding a "member of the county board of education holds a public office under the State"). But see Turner, supra.

The financing of the public school system is provided by State, local, and federal governments. Our General Assembly propounded a state policy "to provide from State revenue sources the instructional expenses for current operations of the public school system as defined in the standard course of study." N.C. Gen.Stat. § 115C-408 (2005). Another constitutional provision provides that the General Assembly has authority to require local governments to contribute to the costs of education. N.C. Const. art. IX, § 2(2). In accordance with this Constitutional provision, our legislature has said, "It is the policy of the State of North Carolina that the facilities requirements for a public education system will be met by county governments." N.C. Gen.Stat. § 115C-408. Moreover, local school boards have authority to have taxes "levied on [their] behalf as a school supplemental tax" by the county. N.C. Gen.Stat. § 115C-511. However, "[t]he board of county commissioners may approve or disapprove of this request in whole or in part," id., although local school boards can bring suit to enforce a county's obligation to raise funds. N.C. Gen.Stat. § 115C-431.

In considering the Eleventh Amendment for purposes of determining congressional intent under § 1983, we are mindful of the "twin reasons" for the amendment's adoption: (1) "the States' fears that `federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin,'" and (2) "the integrity retained by each State in our federal system," which includes the States' sovereignty from suit. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 , 39, 115 S.Ct. 394 , 130 L.Ed.2d 245 , 255 (1994) (quotations and citations omitted).

Although both state and local governments contribute to our school systems, there is no argument before us that any recovery in this matter would come directly from our State treasury. Rather, the local school board is a corporate entity that can sue and be sued, N.C. Gen.Stat. §§ 115C-40, and our legislature has empowered local boards to waive sovereign immunity by obtaining insurance, N.C. Gen.Stat. § 115C-42 (2005), which the Johnston County board has done in this case. Moreover, as to the issue of maintaining the integrity of North Carolina within the federal system, we are convinced that suit against a local school board that performs "very important, though purely local functions," see Turner, supra, and that is its own corporate body separately liable from the State will not hinder our State's integrity within the federal system. Accordingly, we hold that a local school board is a "person" within the meaning of § 1983.

In regard to the state constitutional claims, the Board argues that plaintiffs cannot seek redress under the state constitution because "plaintiffs have an adequate state remedy. But for the Board's assertion of immunity, plaintiffs' cause of action in negligence would redress the complained of injury." Our Supreme Court has said, "[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution." Corum v. Univ. of N.C., 330 N.C. 761 , 782, 413 S.E.2d 276 , 289 (1992). In considering whether an adequate state remedy exists, we consider whether, if any state remedy, if successful, would compensate a plaintiff for the same injury alleged in the direct constitutional claim. Rousselo v. Starling, 128 N.C.App. 439 , 447, 495 S.E.2d 725 , 731 (1998).

The Board's argument confuses the issues presented. Plaintiffs have claimed damages for both negligence and "intentional and arbitrary discrimination" by the Board against the tort claim. Plaintiffs seek to remedy the injury incurred by the alleged arbitrary and unequal application of the Board's immunity. There is no adequate remedy for such conduct in a negligence action or in any other state law cause of action. Accordingly, we hold that plaintiffs have no adequate state remedy and may proceed directly under the State constitution.

Having determined that a local school board is a person within the meaning of § 1983 and that plaintiffs have no adequate state remedy preventing them from proceeding under the State constitution, we consider whether judgment on the pleadings was otherwise appropriate. In Dobrowolska v. Wall, this Court held that summary judgment was inappropriate where there was no evidence in the record that the City of Greensboro applied a set criteria in deciding when to settle claims. 138 N.C.App. 1 , 18, 530 S.E.2d 590 , 602 (2000). Similarly, in this case, viewing the evidence in the light most favorable to the plaintiffs, there is a material issue of fact as to whether the Board applied a reasonable criteria to its evaluation of claims. See Dobrowolska, supra. Accordingly, judgment on the pleadings was inappropriate as to the constitutional claims. See Davis, supra ("The granting of judgment on the pleadings is [only] proper when there does not exist a genuine issue of material fact, and the only issues to be resolved are issues of law").

We additionally address the dissent's reliance on Clayton v. Branson, 170 N.C.App. 438 , 613 S.E.2d 259 (2005). Branson, in pertinent part, dealt with the issue of whether a trial court properly denied a defendant's motion for JNOV regarding claims arising under 42 U.S.C. § 1983 . This Court held that on the Branson facts the trial court erred in denying the defendant's motion for JNOV. The standard of review for a motion for JNOV and a motion for judgment on the pleadings are substantially different. When considering a motion for JNOV:

all the evidence must be considered in the light most favorable to the nonmoving party. The nonmovant is given the benefit of every reasonable inference ... from the evidence and all contradictions are resolved in the nonmovant's favor. If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for ... judgment notwithstanding the verdict should be denied.

Branson, 170 N.C.App. at 442 , 613 S.E.2d at 263-64 (citations omitted). As we have previously stated, however, judgment on the pleadings is only proper when there are no genuine issues of material fact, and the only issues to be resolved are issues of law. Davis, supra. In this case, judgment on the pleadings was inappropriate because there are genuine issues of material fact presented by the pleadings as to whether defendants applied an appropriate, non-arbitrary criteria on an equal basis to all claimants. Accordingly, we remand this issue to the trial court.

Reversed and remanded.

Judge HUDSON concurs.

Judge LEVINSON concurs in part and dissents in part with a separate opinion.