{ "id": 8351925, "name": "ALICE McCOY, Plaintiff v. JERRY COKER, individually and JERRY COKER d/b/a JERRY COKER, and JIMMY L. WADE, individually and in his capacity as a building inspector for the County of Wayne, THE COUNTY OF WAYNE, through its manager Lee Smith, Defendants", "name_abbreviation": "McCoy v. Coker", "decision_date": "2005-11-01", "docket_number": "No. COA04-1367", "first_page": "311", "last_page": "320", "citations": [ { "type": "official", "cite": "174 N.C. App. 311" } ], "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": "488 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "627" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 304", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11795119 ], "year": 1997, "pin_cites": [ { "page": "306-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0304-01" ] }, { "cite": "273 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "754-55" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2673404 ], "year": 1981, "pin_cites": [ { "page": "404-05" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0401-01" ] }, { "cite": "517 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "127", "parenthetical": "citations omitted" }, { "page": "127", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132031 ], "year": 1999, "pin_cites": [ { "page": "609-10", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0601-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "527 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "137 N.C. 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App.", "case_ids": [ 12170704 ], "year": 1981, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0688-01" ] }, { "cite": "307 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527335 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0587-01" ] }, { "cite": "326 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521674 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0044-01" ] }, { "cite": "502 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "630" }, { "page": "630" }, { "page": "631" }, { "page": "630" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 9191523 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/156/0564-01" ] }, { "cite": "458 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913803 ], "year": 1995, "pin_cites": [ { "page": "127-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0125-01" ] }, { "cite": "602 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "359 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798216 ], "year": 2004, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0050-01" ] }, { "cite": "251 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "422", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "pin_cites": [ { "page": "470", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "535 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "599", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122230 ], "year": 2000, "pin_cites": [ { "page": "109", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0106-01" ] }, { "cite": "271 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "57", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564678 ], "year": 1980, "pin_cites": [ { "page": "202", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0200-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 87-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 967, "char_count": 22074, "ocr_confidence": 0.757, "pagerank": { "raw": 2.0952613313550327e-07, "percentile": 0.7609240924857009 }, "sha256": "66af41c88f6bf35076d51f4587c7a143f17cbbb6b1bbe9f1edc023d498d6b8bc", "simhash": "1:4fe1d72fc53e8ad6", "word_count": 3481 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and MCCULLOUGH concur." ], "parties": [ "ALICE McCOY, Plaintiff v. JERRY COKER, individually and JERRY COKER d/b/a JERRY COKER, and JIMMY L. WADE, individually and in his capacity as a building inspector for the County of Wayne, THE COUNTY OF WAYNE, through its manager Lee Smith, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiffs residence was damaged by fire on 29 April 1998. Plaintiff hired defendant Jerry Coker (Coker), an unlicensed contractor holding himself out as being licenced, to rebuild and repair her residence for $62,000.00. Coker applied for a building permit from the Wayne County Inspections Department, listing the cost of repair for the residence at $29,000.00, which was just under the $30,000.00 limit requiring licensure. N.C. Gen. Stat. \u00a7 87-1 et. seq (2004). As Coker proceeded with the repairs, defendant Wayne County (Wayne County) periodically inspected the work. The majority of these inspections were conducted by defendant Jimmy L. Wade (Wade, and together with Wayne County, defendants). On 29 June 1999, Wade conducted a final inspection of the residence and issued a Certificate of Occupancy.\nPlaintiff\u2019s complaint alleges multiple claims against each of the defendants. As to Coker, it is alleged that he performed faulty work, resulting in \u201cextensive toxic mold growth\u201d at the residence. As to defendants, plaintiff alleges negligence and gross negligence for failure to properly inspect Coker\u2019s work, wilful or negligent misrepresentations, and unfair and deceptive trade practices. Wade was sued in both his individual and his official capacity as a building inspector. Plaintiff seeks monetary damages for property damage, personal injuries, exemplary damages, and attorney\u2019s fees.\nPlaintiff filed this action on 16 March 2004. Defendants filed answer and motions to dismiss on 6 May 2004. These motions sought dismissal of the claims against Wade in both his individual and official capacity. On 20 June 2004, defendants filed a motion for summary judgment based in governmental immunity. On 18 August 2004, the trial court dismissed plaintiff\u2019s claims against Wayne County for unfair and deceptive trade practices and denied the defendant\u2019s other motions to dismiss and for summary judgment. Defendants appeal. We affirm in part and reverse in part the order of the trial court.\nIn defendants\u2019 second argument they contend that the trial court erred in denying defendant Wayne County\u2019s motion for summary judgment based upon governmental immunity. We discuss this argument first because it is partially determinative of another issue. We disagree.\n\u201cSummary judgment is properly granted only \u2018if 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.\u2019 \u201d Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 202, 271 S.E.2d 54, 57 (1980) (citations omitted). \u201cOn appeal, our standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law.\u201d NationsBank v. Parker, 140 N.C. App. 106, 109, 535 S.E.2d 597, 599 (2000) (citation omitted). \u201cThe evidence presented is viewed in the light most favorable to the non-movant.\u201d Id.\n\u201cThe court is not authorized by Rule 56 to decide an issue of fact. It is authorized to determine whether a genuine issue of fact exists.\u201d Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979) (citation omitted). \u201cThe purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed.\u201d Id. \u201cUnder the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity.\u201d 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. \u00a7 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).\nThe dispositive issue concerns whether that policy covered defendant Wayne County for the acts alleged in plaintiff\u2019s complaint. If the policy did provide coverage against the alleged negligent acts of Wayne County\u2019s building inspector, then Wayne County has waived its governmental immunity and its motion for summary judgment was properly denied. It is defendants\u2019 burden to show that no genuine issue of material fact exists that the policy does not cover Wade\u2019s actions in the instant case. Marlowe v. Piner, 119 N.C. App. 125, 127-28, 458 S.E.2d 220, 222 (1995).\nThe 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 \u201cPublic Entity Management Liability Protection\u201d section [R. pp. 44-51], and the \u201cPublic Entity General Liability Protection\u201d section [R. pp. 154-77]. The \u201cPublic Entity Management Liability Protection\u201d section includes a section titled Exclusions \u2014 What This Agreement Won\u2019t Cover.\nInjury or Damage. We won\u2019t cover loss resulting from injury or damage.\nInjury or Damage means:\n\u2022 . . . personal injury . . .; or\n\u2022 property damage.\nBodily Injury means any physical harm, including sickness or disease, to the physical health of any person.\nProperty Damage means:\n\u2022 physical damage to tangible property of others, including all resulting loss of use of that property. . . .\nThis 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 \u201cPublic Entity Management Liability Protection\u201d section of the policy, there is no insurance coverage, and consequently no waiver of governmental immunity.\nWayne County also purchased coverage entitled \u201cPublic Entity General Liability Protection\u201d. The section entitled What This Agreement Covers contains the following:\nBodily injury and property damage liability.\nWe\u2019ll pay amounts any protected person is legally required to pay as damages for covered bodily injury or property damage that:\n\u2022 happens while this agreement is in effect; and\n\u2022 is caused by an event.\nEvent means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.\nWe note that the definitions of bodily injury and property damage are substantively identical to the definitions in the \u201cPublic Entity Management Liability Protection Coverage\u201d section above, and that there is no dispute that Wayne County is a \u201cprotected person\u201d 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 \u201cPublic Entity Management Liability Protection\u201d section discussed above. Defendants make no argument that the \u201cPublic Entity General Liability Protection\u201d section of the policy does not apply.\nIf the negligent building inspection of Wade was an accident, then the policy provides coverage for the claims against Wayne County, and it has waived governmental immunity. The policy does not define \u201caccident\u201d. \u201cNon-technical words are to be given their meaning in ordinary speech unless it is clear that the parties intended the words to have a specific technical meaning.\u201d Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 95, 518 S.E.2d 814, 816-17 (1999) (citations omitted), disc. review denied, 351 N.C. 350, 542 S.E.2d 205 (2000). \u201cThe words used in the policy having been selected by the insurance company, any ambiguity or uncertainty as to their meaning must be resolved in favor of the policyholder, or the beneficiary, and against the company.\u201d Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). \u201cIt is the general rule that where a provision in a policy of insurance is susceptible of two interpretations, when considered in light of the facts in the case, one imposing liability, the other excluding it, the provision will be construed against the insurer.\u201d Roach v. Pyramid Life Ins. Co., 248 N.C. 699, 701, 104 S.E.2d 823, 824-25 (1958).\n\u201cPolicies of liability insurance as well as property and personal injury insurance frequently limit coverage to losses that are caused by \u2018accident.\u2019 In attempting to accommodate the layman\u2019s understanding of the term, courts have broadly defined the word to mean an occurrence which is unforeseen, unexpected, extraordinary, either by virtue of the fact that it occurred at all, or because of the extent of the damage. An accident can be either a sudden happening or a slowly evolving process . . . .\u201d\nBlack\u2019s Law Dictionary (8th ed. 2004), quoting John F. Dobbyn, Insurance Law in a Nutshell 128 (1996). Under the definition of accident in Black\u2019s we also find a definition for \u201cculpable accident\u201d: \u201cAn accident due to negligence.\u201d id.\nThere are cases in North Carolina interpreting policy language similar, but not identical, to the relevant language in the instant case. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 694, 340 S.E.2d 374, 379 (1986); Washington Hous. Auth. v. North Carolina Hous. Auths. Risk Retention Pool, 130 N.C. App. 279, 285, 502 S.E.2d 626, 630 (1998); Wiggins v. Monroe, 73 N.C. App. 44, 326 S.E.2d 39 (1985); Wilmington v. Pigott, 64 N.C. App. 587, 307 S.E.2d 857 (1983); Edwards v. Akion, 52 N.C. App. 688, 691, 279 S.E.2d 894, 896 (1981). In all of the insurance policies in these cases, \u201cevent\u201d (termed \u201coccurrence\u201d) is defined as \u201c \u2018an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.\u2019 \u201d Waste Management, 315 N.C. at 694, 340 S.E.2d at 379 (emphasis added).\nMuch of the analysis in these cases focuses on whether the damages incurred were expected or intended by the insured in light of the conduct in question. In making that determination,\n[t]he test should be \u201ca subjective one, from the standpoint of the insured, and not an objective one asking whether the insured \u2018should have\u2019 expected the resulting damage,\u201d i.e., whether the resulting damage was unexpected or unintended, not whether the act itself was unintended. An \u201cexpected or intended\u201d exclusion applies only \u201cif the resulting injury as well as the act were intentional.\u201d\nWashington Hous. Auth., 130 N.C. App. at 285, 502 S.E.2d at 630.\nThe Washington Hous. Auth. Court determined that a complaint properly alleged an \u201caccident\u201d under the relevant 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 \u201caccident\u201d under the policy, this Court reasoned that though Washington Housing Authority\u2019s actions were intentional, \u201cthe resulting damage to the property occasioned thereby was not.\u201d Id. at 285-86, 502 S.E.2d at 631. We hold that this reasoning applies in the instant case. Though defendant Wade\u2019s acts inspecting plaintiffs property and issuing a certificate of occupation were intentional, it was neither intended nor expected that as a result of these acts plaintiffs 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.\nWe note that to the extent the language of the instant policy differs from that of the cited cases (by omitting \u201cwhich results in bodily injury or property damage neither expected nor intended from the standpoint of the insured\u201d), the case for defining \u201caccident\u201d 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 \u201caccident\u201d 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.\nWe 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.\nIn defendants\u2019 first argument, they argue that the trial court erred in denying defendant Wade\u2019s motion to dismiss. We agree in part.\nDefendant 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 first contend that the trial court erred in failing to dismiss the claims against him in his official capacity because they are duplicative of plaintiff\u2019s 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 \u201cofficial-capacity suits \u2018generally represent only another way of pleading an action against an entity of which an officer, is an agent[,]\u2019 \u201d 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.\nDefendants next argue that the trial court erred in failing to dismiss plaintiffs claims against Wade in his individual capacity because he was entitled to immunity on those claims.\nWhether plaintiff states claims against defendant Wade in his individual capacity sufficient to withstand a Rule 12(b)(6) motion to dismiss hinges on whether defendant Wade was acting as a public official or a public employee. \u201c \u2018It is settled in this jurisdiction that a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, may not be held personally liable for mere negligence in respect thereto.\u2019 \u2018An employee, on the other hand, is personally liable for negligence in the performance of his or her duties proximately causing an injury.\u2019 \u201d Isenhour v. Hutto, 350 N.C. 601, 609-10, 517 S.E.2d 121, 127 (1999) (citations omitted). \u25a0\nOur courts have recognized several basic distinctions between a public official and a public employee, including: (1) a public office is a position created by the constitution or statutes; (2) a public official exercises a portion of the sovereign power; and (3) a public official exercises discretion, while public employees perform ministerial duties. \u201cDiscretionary acts are those requiring personal deliberation, decision and judgment.\u201d Ministerial duties, on the other hand, are absolute and involve \u201cmerely [the] execution of a specific duty arising from fixed and designated facts.\u201d\nId. at 610, 517 S.E.2d at 127 (internal citations omitted). In Pigott v. Wilmington, 50 N.C. App. 401, 404-05, 273 S.E.2d 752, 754-55 (1981), this Court determined that the chief building inspector of the City of Wilmington was a public official, not a public employee, based on the following analysis:\nFirst, the position of chief building inspector is \u201ccreated . . . by legislation\u201d which authorizes every city in North Carolina to create a building inspection department, to appoint inspectors and to give the inspectors so appointed titles \u201cgenerally descriptive of the duties assigned.\u201d G.S. 160A-411 (Supp. 1979). Second, the chief building inspector is \u201crequired to take an oath of office.\u201d Third, the chief building inspector performs \u201cpublic functions delegated to him as part of the sovereign power of the state\u201d; \u201cofficial trust or responsibility is imposed by law\u201d on him; \u201cthe law prescribes and imposes the duties\u201d he must perform; and he is \u201ccharged with fixed, public duties\u201d and \u201cempowered to act in the discharge of a duty or legal authority in official life.\u201d See G.S. 160A-411 to -438; Fourth, the chief building inspector is \u201cvested with a certain measure of discretion.\u201d North Carolina General Statutes, Chapter 160A, part 5 contains numerous provisions which can only be interpreted as placing discretionary powers in the inspectors designated and appropriately entitled by the cities of this State.\nIn the instant case, Wade is not the chief building inspector, and there is no evidence from which to determine whether he was required to take an oath of office. However, when we apply the test laid out in Isenhour, guided by our holding in Pigott, we hold that as a building inspector for the County of Wayne, Wade was a public official. His position was created by statute, in that position he exercises a portion of the sovereign power delegated to him, through Wayne County, by statute, and work in his official capacity requires that he exercise discretion.\nThe general rule regarding official immunity is: \u201c \u2018As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, . . . keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability .\u2019 \u201d This Court has also held that, while \u201cnamed defendants may be shielded from liability in their official capacities, they remain personally liable for any actions which may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties.\u201d To sustain the personal or individual capacity suit, the plaintiff must initially make a prima facie showing that the defendant-official\u2019s tortious conduct falls within one of the immunity exceptions, i.e., that the official\u2019s conduct is malicious, corrupt, or outside the scope of official authority.\nTrantham v. Lane, 127 N.C. App. 304, 306-07, 488 S.E.2d 625, 627 (1997) (internal citations omitted. Plaintiff\u2019s complaint does not allege that defendant Wade\u2019s conduct was malicious or corrupt. Paragraph 28 of plaintiff\u2019s complaint states: \u201cWade was performing acts for the County within the course and scope of employment at all times material to this action.\u201d We therefore hold that plaintiff\u2019s complaint fails to state a claim against defendant Wade in his individual capacity for which relief may be granted. The trial court erred in failing to dismiss the claim against defendant Wade in his individual capacity pursuant to Rule 12(b)(6), and thus we reverse the order denying defendant Wade\u2019s motion to dismiss this claim, and remand to the trial court for entry of an order granting this motion.\nAFFIRMED IN PART, REVERSED AND REMANDED IN PART.\nJudges TIMMONS-GOODSON and MCCULLOUGH concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Morgan, Reeves & Gilchrist, by C. Winston Gilchrist; and Law Offices of Jason Wunsch by Jason Wunsch, for plaintiff-appellee.", "Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Scott C. Hart, for defendant-appellants Wade and Wayne County.", "Albert D. Kirby, Jr., for defendant-appellant Jerry Coker." ], "corrections": "", "head_matter": "ALICE McCOY, Plaintiff v. JERRY COKER, individually and JERRY COKER d/b/a JERRY COKER, and JIMMY L. WADE, individually and in his capacity as a building inspector for the County of Wayne, THE COUNTY OF WAYNE, through its manager Lee Smith, Defendants\nNo. COA04-1367\n(Filed 1 November 2005)\n1. Immunity\u2014 governmental \u2014 negligent building inspection\u2014 accidental \u2014 insurance coverage\nAn allegedly negligent building inspection was an accident under Wayne County\u2019s insurance policy, the policy covered the claim, immunity was waived, and the trial court properly denied the County\u2019s motion for summary judgment. Although the inspection and issuance of a certificate of occupancy were intentional, it was neither intended nor expected that plaintiff\u2019s property would be rendered uninhabitable and that plaintiff would suffer health problems.\n2. Immunity\u2014 governmental \u2014 claims against building inspector and county \u2014 not duplicative \u2014 same immunity\nThe trial court did not err by denying a building inspector\u2019s motion to dismiss a claim against him in his official capacity where the County was not immune. The public officer holds the same immunity, if any, as the governmental immunity; although the building inspector here contended that claims were duplica-tive, a plaintiff may bring suit against both a governmental entity and its public officer (with but one recovery).\n3. Immunity\u2014 governmental \u2014 building inspector \u2014 public official\nThe trial court should have dismissed a claim against a building inspector in his individual capacity because the inspector was a public official who may not be held personally liable for mere negligence. The inspector\u2019s position was created by statute, he exercised a portion of the sovereign power, and his work required discretion.\nAppeal by defendants Wade and Wayne County from order denying motions to dismiss and for summary judgment entered 25 August 2004 by Judge Kenneth F. Crow in Wayne County Superior Court. Heard in the Court of Appeals 19 May 2005.\nMorgan, Reeves & Gilchrist, by C. Winston Gilchrist; and Law Offices of Jason Wunsch by Jason Wunsch, for plaintiff-appellee.\nSumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Scott C. Hart, for defendant-appellants Wade and Wayne County.\nAlbert D. Kirby, Jr., for defendant-appellant Jerry Coker." }, "file_name": "0311-01", "first_page_order": 341, "last_page_order": 350 }