{ "id": 9188390, "name": "MICHAEL KENNEDY and wife, MICHELE KENNEDY, Plaintiffs v. HAYWOOD COUNTY, a body politic and corporate within the State of North Carolina pursuant to N.C.G.S. \u00a7 153A-11, Defendant", "name_abbreviation": "Kennedy v. Haywood County", "decision_date": "2003-06-17", "docket_number": "No. COA02-875", "first_page": "526", "last_page": "530", "citations": [ { "type": "official", "cite": "158 N.C. App. 526" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "526 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "652", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "351 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155787 ], "year": 2000, "pin_cites": [ { "page": "465", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0462-01" ] }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "627", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "537-38", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "577 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "313" }, { "page": "314", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191523 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "566-67" }, { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0564-01" ] }, { "cite": "545 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684888, 685037, 685029 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0673-03", "/nc/352/0673-01", "/nc/352/0673-02" ] }, { "cite": "431 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526342 ], "year": 1993, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0707-01" ] }, { "cite": "529 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095610 ], "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0680-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "488 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "346 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139674 ], "year": 1997, "pin_cites": [ { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0767-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] } ], "analysis": { "cardinality": 549, "char_count": 9298, "ocr_confidence": 0.751, "pagerank": { "raw": 8.04001030520236e-08, "percentile": 0.4658420239944491 }, "sha256": "bdd9947680728a97dbeffb7e5e18822bb024913363a7422c20bb360a40975671", "simhash": "1:83114d634439066f", "word_count": 1395 }, "last_updated": "2023-07-14T17:16:33.883812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and MCCULLOUGH concur." ], "parties": [ "MICHAEL KENNEDY and wife, MICHELE KENNEDY, Plaintiffs v. HAYWOOD COUNTY, a body politic and corporate within the State of North Carolina pursuant to N.C.G.S. \u00a7 153A-11, Defendant" ], "opinions": [ { "text": "LEVINSON, Judge.\nPlaintiffs (Michael and Michele Kennedy) appeal from an order granting summary judgment in favor of defendant Haywood County. We affirm the trial court.\nPlaintiffs filed an amended complaint against defendant on 17 March 2000, alleging that they had hired Hart Construction Company (Hart) to build a house on plaintiffs property, and that Hart failed \u201cgenerally to complete and/or properly construct the dwelling and its load-bearing and structural elements.\u201d Plaintiffs alleged negligence on the part of defendant in issuing Hart a building permit; in its inspections of the construction; and in issuing a certificate of compliance. Plaintiffs alleged that defendant\u2019s negligence in failing to assure Hart\u2019s compliance with applicable building and construction codes had proximately caused damage to plaintiffs, in that their house was not structurally sound and had required substantial sums to \u201cattempt to correct or at least ameliorate\u201d the problems with the building.\nOn 12 June 2000, the case was transferred to superior court. Defendant moved for summary judgment on 5 January 2001, on the grounds that defendant was entitled to governmental immunity. On 22 February 2002 the trial court granted summary judgment for defendant on \u201ceach and every claim asserted by Plaintiff.\u201d From this order, plaintiffs appeal.\nPlaintiffs appeal from an order granting summary judgment. Summary judgment is properly granted where \u201cthe 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.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(c) (2001); Pacheco v. Rogers & Breece, Inc., - N.C. App. -, - S.E.2d - (2003). \u201cThe party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact.\u201d DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (citing Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997)). The moving party can meet this burden \u201cby proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\u201d Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). In the instant case, defendant raised the affirmative defense of sovereign immunity.\n\u201c \u2018As 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.\u2019 \u201d Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C. App. 680, 683, 529 S.E.2d 458, 461 (quoting Messiah v. Catawba County, 110 N.C. App. 707, 714, 431 S.E.2d 489, 493 (1993)), disc. review denied, 352 N.C. 673, 545 S.E.2d 423 (2000) (citation omitted). \u201cThe common law doctrine of sovereign immunity generally protects states and their political subdivisions, such as county governments, from suit for damages for tort liability based on performance of governmental functions.\u201d Norton v. SMC Bldg., 156 N.C. App. 564, 566-67, 577 S.E.2d 310, 313 (2003).\nPursuant to N.C.G.S. \u00a7 153A-435 (2001), a county may waive its sovereign immunity by purchasing liability insurance:\nA county may contract to insure itself and any of its officers, agents, or employees against liability[.] . . . The board of commissioners shall determine what liabilities and what. . . employees shall be covered by any insurance purchased[.] . . . Purchase of insurance . . . waives the county\u2019s governmental immunity, to the extent of insurance coverage[.] ... By entering into an insurance contract with the county, an insurer waives any defense based upon the governmental immunity of the county.\nN.C.G.S. \u00a7 153A-435(a) (2001) (emphasis added). However, \u201c[w]aiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.\u201d Guthrie v. State Ports Authority, 307 N.C. 522, 537-38, 299 S.E.2d 618, 627 (1983) (citation omitted).\nIn the case sub judice plaintiffs contend that defendant waived its sovereign immunity by purchasing liability insurance that covers their claims of negligent building inspection. Plaintiff argues that defendant\u2019s building inspectors are \u201claw enforcement officers,\u201d and thus are covered by the Law Enforcement Coverage part of defendant\u2019s Professional Liability policy. We disagree.\nPlaintiffs base their argument that building inspectors are law enforcement officers on the provisions of N.C.G.S. \u00a7 153A-352 (2001), directing local building inspectors \u201cto enforce within the county\u2019s territorial jurisdiction State and local laws and local ordinances and regulations relating to . . . [t]he construction of buildingsf,]\u201d and stating that their duties include \u201cbringing judicial actions against actual or threatened violations, ... [of building construction] laws and ordinances and regulations.\u201d However, a building inspector\u2019s authority to, e.g., issue an order to stop construction of a building, does not transform a county building inspector into a law enforcement officer. Building inspectors have no authority to issue arrest warrants or other criminal process; are not certified law enforcement officers as provided in N.C.G.S. \u00a7 17C; do not take the oath required of law enforcement officers under N.C.G.S. \u00a7 11-11; and are not charged with providing police protection or enforcing criminal laws. Moreover, the North Carolina Supreme Court has previously indicated that building inspectors are not law enforcement officers:\nThis Court has not heretofore applied, the public duty doctrine to a claim against a municipality or county in a situation involving any group or individual other than law enforcement. After careful review of appellate decisions on the public duty doctrine in this state and other jurisdictions, we conclude that the public duty doctrine does not bar this claim against Lee County for negligent inspection of plaintiffs\u2019 private residence.\nThompson v. Waters, 351 N.C. 462, 465, 526 S.E.2d 650, 652 (2000) (emphasis added). In Thompson, the Court held that (1) the public duty doctrine was applicable only to law enforcement officers, and (2) that it was not applicable to county building inspectors. We hold, therefore, that county building inspectors are not law enforcement officers. For this reason, defendant\u2019s purchase of liability insurance covering law enforcement officers did not serve to waive its sovereign immunity as regards claims of negligent building inspection.\nMoreover, defendant\u2019s insurance policy specifically excludes claims \u201cfor loss, damage to or destruction of any tangible property, or the loss of use thereof).]\u201d In Norton v. SMC Bldg., 156 N.C. App. 564, 577 S.E.2d 310 (2003), the plaintiff brought an action for damages based on defendant-county\u2019s negligent building inspection. This Court considered an identical provision in the county\u2019s liability insurance and held:\nThe words used in the exclusionary provision at issue here are non-technical and there is no evidence or assertion that they were intended to have a special meaning. . . . [T]he American Heritage Dictionary defines \u2018damage\u2019 as \u2018harm or injury to property . . ., resulting in loss of value or the impairment of usefulness.\u2019 American Heritage Dictionary of the English Language, 4th Ed. (2000). The disputed exclusionary provision is not ambiguous and, when construed and enforced according to its plain meaning, it clearly encompasses the construction defects plaintiffs allege resulted from the County\u2019s negligent building inspection.\nNorton, 156 N.C. App. at 569-70, 577 S.E.2d at 314 (emphasis added). We conclude that the holding of Norton \u2014 that the insurance policy exclusion of claims for property damage applies to claims of damage resulting from negligent inspection by county building inspectors\u2014 controls the outcome of the present case. Accordingly, we hold that the trial court did not err by granting summary judgment for defendant, and that the trial court\u2019s order is\nAffirmed.\nJudges McGEE and MCCULLOUGH concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Brown Queen Patten & Jenkins, PA, by Frank G. Queen, for plaintiffs-appellants.", "Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "MICHAEL KENNEDY and wife, MICHELE KENNEDY, Plaintiffs v. HAYWOOD COUNTY, a body politic and corporate within the State of North Carolina pursuant to N.C.G.S. \u00a7 153A-11, Defendant\nNo. COA02-875\n(Filed 17 June 2003)\nImmunity\u2014 sovereign \u2014 negligent building inspection\nBuilding inspectors are not law enforcement officers and defendant\u2019s purchase of liability insurance covering law enforcement officers did not serve to waive its sovereign immunity for claims of negligent building inspection. Moreover, exclusions for property damage claims have been held to include claims of damage from negligent inspection.\nAppeal by plaintiffs from order entered 22 February 2002 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 27 March 2003.\nBrown Queen Patten & Jenkins, PA, by Frank G. Queen, for plaintiffs-appellants.\nWomble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan, Jr., for defendant-appellee." }, "file_name": "0526-01", "first_page_order": 556, "last_page_order": 560 }