{ "id": 8300871, "name": "BRIAN DAVIS, Plaintiff-Appellee v. JOSEPH DIBARTOLO, ARRCS, INC., ARRCS, INC. d/b/a ANNIE'S OLD FASHIONED TRATTORIA AND PIZZERIA, MONTGOMERY DEVELOPMENT CAROLINA CORP., S.V. CENTER, LLC, MEL DeSHA d/b/a MEL'S PLUMBING & ELECTRIC CO., ROGER ALAN GIBSON d/b/a GIBSON PLUMBING and the TOWN OF CHAPEL HILL, a North Carolina Municipality, Defendants-Appellants", "name_abbreviation": "Davis v. Dibartolo", "decision_date": "2006-02-21", "docket_number": "No. COA05-222", "first_page": "142", "last_page": "150", "citations": [ { "type": "official", "cite": "176 N.C. App. 142" } ], "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": "620 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634207 ], "weight": 13, "year": 2005, "pin_cites": [ { "page": "694", "parenthetical": "quoting Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 95, 518 S.E.2d 814, 816-17 (1999), disc. review denied, 351 N.C. 350, 542 S.E.2d 205 (2000)" }, { "page": "694", "parenthetical": "quoting Black's Law Dictionary 15 (8th ed. 2004) (citation omitted)" }, { "page": "692-93" }, { "page": "693" }, { "page": "694" }, { "page": "694" }, { "page": "694-95" }, { "page": "695", "parenthetical": "emphasis added" }, { "page": "695" }, { "page": "695" }, { "page": "695" }, { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0691-01" ] }, { "cite": "312 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "307 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1983, "pin_cites": [ { "page": "858" }, { "page": "858" }, { "page": "858-59" }, { "page": "859" } ], "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": "539 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "350-51" }, { "page": "350", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440185 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0127-01" ] }, { "cite": "526 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "502 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466777 ], "year": 1998, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0279-01" ] }, { "cite": "340 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "year": 1986, "pin_cites": [ { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "542 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155840, 1155802, 1155946, 1155926 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0350-04", "/nc/351/0350-01", "/nc/351/0350-03", "/nc/351/0350-02" ] }, { "cite": "518 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "816-17" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239160 ], "year": 1999, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0092-01" ] }, { "cite": "174 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351925 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "315", "parenthetical": "quoting Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 95, 518 S.E.2d 814, 816-17 (1999), disc. review denied, 351 N.C. 350, 542 S.E.2d 205 (2000)" }, { "page": "315" }, { "page": "312" }, { "page": "316" }, { "page": "316" }, { "page": "316" }, { "page": "316-17" }, { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0311-01" ] }, { "cite": "400 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528017 ], "year": 1991, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0636-01" ] }, { "cite": "524 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "563" }, { "page": "563" }, { "page": "563" } ], "opinion_index": 0 }, { "cite": "351 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155833 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "299" }, { "page": "299-300" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0293-01" ] }, { "cite": "579 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491431, 491432, 491475, 491452, 491743 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0066-02", "/nc/357/0066-04", "/nc/357/0066-05", "/nc/357/0066-03", "/nc/357/0066-01" ] }, { "cite": "574 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250748 ], "year": 2002, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0462-01" ] }, { "cite": "545 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "245-46" }, { "page": "246" }, { "page": "246" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433311 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0097-01" ] }, { "cite": "492 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799017 ], "year": 1997, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0599-01" ] } ], "analysis": { "cardinality": 795, "char_count": 19920, "ocr_confidence": 0.736, "pagerank": { "raw": 8.925762722259056e-08, "percentile": 0.5007293861534012 }, "sha256": "6cd5b78d4cde2374f9c46d125bf7f8bf6f68d86834619c1aa42e039731ccd0c6", "simhash": "1:4b69773a44ad8ec4", "word_count": 3144 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "BRIAN DAVIS, Plaintiff-Appellee v. JOSEPH DIBARTOLO, ARRCS, INC., ARRCS, INC. d/b/a ANNIE\u2019S OLD FASHIONED TRATTORIA AND PIZZERIA, MONTGOMERY DEVELOPMENT CAROLINA CORP., S.V. CENTER, LLC, MEL DeSHA d/b/a MEL\u2019S PLUMBING & ELECTRIC CO., ROGER ALAN GIBSON d/b/a GIBSON PLUMBING and the TOWN OF CHAPEL HILL, a North Carolina Municipality, Defendants-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nBrian Davis (plaintiff) filed a complaint on 11 June 2004 alleging he was injured on 14 June 2003 while working as a bartender at ARRCS, Inc. d/b/a Annie\u2019s Old Fashioned Trattoria and Pizzeria in Chapel Hill, North Carolina. Plaintiff alleged that various non-appealing defendants created a dangerous condition by installing a gas-powered deep fat fryer, a Piteo Friolator Model #35C (the fryer), in contravention to the architect\u2019s plans and the installation instructions. Plaintiff filed an amendment to the complaint on 12 July 2004, alleging that he slipped on the unprotected floor of Annie\u2019s Old Fashioned Trattoria and Pizzeria on 14 June 2003 while working there as a bartender. Plaintiff further alleged he fell and slid towards the fryer. Plaintiff alleged he struck the fryer feet first, causing the \u201cunrestrained\u201d fryer to topple over onto him, spilling hot grease on plaintiff\u2019s torso, arms and legs. Plaintiff alleged he sustained second and third degree burns.\nPlaintiff also made several allegations specifically against the Town of Chapel Hill (defendant). Plaintiff alleged defendant was grossly negligent because defendant\u2019s employees in its building inspections department failed to properly inspect the construction of Annie\u2019s Old Fashioned Trattoria and Pizzeria with respect to the placement and installation of the fryer.\nDefendant filed motions to dismiss plaintiff\u2019s complaint and amendment to the complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(1) and Rule 12(b)(6) on 2 August 2004. In support of its motions, defendant argued that plaintiff did not allege any waiver of defendant\u2019s sovereign immunity by purchase of liability insurance by defendant. Defendant also contended that it was denied liability coverage for plaintiff\u2019s claim by its insurance carrier and that defendant had not purchased any other form of liability insurance.\nThe trial court granted plaintiff\u2019s motion to amend his complaint to allege the existence of defendant\u2019s applicable liability insurance, if such insurance existed, in an order filed 13 September 2004. The trial court also ordered defendant to \u201cproduce complete copies of all liability insurance policies that have any conceivable coverage in this case,\u201d and deferred ruling on defendant\u2019s motions to dismiss.\nDefendant provided plaintiff with, inter alia, a certified copy of its general liability insurance policy for the coverage period 1 July 2002 through 1 July 2003. Plaintiff filed a second amendment to his complaint on 29 September 2004, alleging that defendant had liability insurance that was applicable to this case and that defendant waived any governmental immunity by its purchase of insurance.\nPlaintiff subsequently filed a motion for leave to file a third amendment to his complaint, which the trial court granted. Plaintiff filed a third amendment to his complaint on 16 November 2004, amending two paragraphs of the complaint.\nDefendant filed renewed motions to dismiss plaintiff\u2019s complaint under Rule 12(b)(1) and Rule 12(b)(6) on 2 November 2004, again raising the defense of sovereign immunity. The trial court denied defendant\u2019s motions to dismiss in an order filed 22 November 2004, finding that defendant waived sovereign immunity by the purchase of general liability insurance coverage for the period 1 July 2002 through 1 July 2003. Defendant appeals.\nDefendant argues that it has sovereign immunity from plaintiff\u2019s action. Specifically, defendant argues plaintiff\u2019s alleged injuries were not caused by an occurrence, as defined by its general liability insurance policy, but rather were caused by the intentional, discretionary acts of its building inspector, acts for which defendant has sovereign immunity. Plaintiff argues, and the trial court found, that defendant waived sovereign immunity by its purchase of general liability insurance coverage for the period 1 July 2002 through 1 July 2003. Plaintiff argues his injuries were caused by an occurrence, which was covered by defendant\u2019s general liability insurance policy, and that defendant waived its sovereign immunity to the extent of that coverage.\nThe denial of a 12(b)(6) motion to dismiss for failure to state a claim is immediately appealable where the motion raises the defense of sovereign immunity. Anderson v. Town of Andrews, 127 N.C. App. 599, 601, 492 S.E.2d 385, 386 (1997). However, in Data Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 545 S.E.2d 243 (2001), our Court stated that \u201can appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction^]\u201d Id. at 100, 545 S.E.2d at 245-46. Therefore, our Court held that the denial of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is not immediately appeal-able, even where the defense of sovereign immunity is raised. Id. at 100, 545 S.E.2d at 246. Accordingly, we only review the trial court\u2019s denial of defendant\u2019s 12(b)(6) motion. \u201cThe question before a court considering a motion to dismiss for failure to state a claim is whether, if all the plaintiff\u2019s allegations are taken as true, the plaintiff is entitled to recover under some legal theory.\u201d Toomer v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002), appeal dismissed and disc. review denied, 357 N.C. 66, 579 S.E.2d 576 (2003)).\n\u201cIt is a fundamental rule that sovereign immunity renders this state, including counties and municipal corporations herein, immune from suit absent express consent to be sued or waiver of the right of sovereign immunity.\u201d Data Gen. Corp., 143 N.C. App. at 100, 545 S.E.2d at 246. However, a city or town may waive its sovereign immunity pursuant to N.C. Gen. Stat. \u00a7 160A-485(a) (2005), which provides:\nAny city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance. Participation in a local government risk pool pursuant to Article 23 of General Statute Chapter 58 shall be deemed to be the purchase of insurance for the purposes of this section. Immunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability.\nAn insurance policy is a contract and should be interpreted so as to effectuate the intent of the parties at the time the policy was issued. Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299, 524 S.E.2d 558, 563 (2000). To the extent possible, every word and provision of an insurance policy should be given effect. Id. However, ambiguous provisions and words should be construed in favor of the insured. Id. at 299-300, 524 S.E.2d at 563. An insurer\u2019s unilateral determination of the scope of its insurance policy\u2019s coverage is not binding. Herndon v. Barrett, 101 N.C. App. 636, 641, 400 S.E.2d 767, 770 (1991).\nDefendant\u2019s general liability insurance contract provides that the Interlocal Risk Financing Fund of North Carolina \u201cwill pay those sums that [defendant] becomes legally obligated to pay as compensatory damages because of \u2018bodily injury\u2019 or \u2018property damage\u2019 to which this insurance applies.\u201d Defendant\u2019s general liability insurance policy further provides that \u201c[t]his insurance applies to \u2018bodily injury\u2019 and \u2018property damage\u2019 only if: (1) The \u2018bodily injury\u2019 or \u2018property damage\u2019 is caused by an \u2018occurrence\u2019 that takes place in the \u2018coverage territory[.]\u2019 \u201d Defendant\u2019s general liability insurance policy defines an \u201coccurrence\u201d as \u201can accident, including continuous or repeated exposure to substantially the same general harmful conditions.\u201d Finally, defendant\u2019s general liability insurance policy excludes from coverage \u201c \u2018[b]odily injury\u2019 or \u2018property damage\u2019 expected or intended from the standpoint of any insured.\u201d\nDefendant\u2019s general liability insurance policy does not define the term \u201caccident.\u201d However, as our Court has recently noted: \u201c \u2018Nontechnical 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.\u2019 \u201d McCoy v. Coker, 174 N.C. App. 311, 315, 620 S.E.2d 691, 694 (2005) (quoting Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 95, 518 S.E.2d 814, 816-17 (1999), disc. review denied, 351 N.C. 350, 542 S.E.2d 205 (2000)). In McCoy, our Court quoted Black\u2019s Law Dictionary\u2019s definition of an accident in the context of insurance policies as \u201c \u2018 \u201can 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.\u201d \u2019 \u201d McCoy, 174 N.C. App. at 315, 620 S.E.2d at 694 (quoting Black\u2019s Law Dictionary 15 (8th ed. 2004) (citation omitted)).\nIn McCoy, the plaintiff filed suit against a county and its building inspector for property damage and personal injuries allegedly sustained when the building inspector failed to properly inspect work performed on the plaintiff\u2019s house and improperly issued a certificate of occupancy. McCoy, 174 N.C. App. at 312, 620 S.E.2d at 692-93. The defendants\u2019 motion for summary judgment based on sovereign immunity was denied because the defendants waived sovereign immunity by the purchase of insurance. Id. at 313, 620 S.E.2d at 693.\nThe language of the general liability insurance policy at issue in McCoy was substantially the same as the language of the policy at issue here. The policy at issue in McCoy covered damages for \u201cbodily injury\u201d or \u201cproperty damage\u201d caused by an \u201cevent,\u201d which the policy defined as an \u201caccident, including continuous or repeated exposure to substantially the same general harmful conditions.\u201d Id. at 314-15, 620 S.E.2d at 694. As discussed above, our Court defined \u201caccident\u201d, according to its ordinary meaning. Id. at 315, 620 S.E.2d at 694.\nIn McCoy, our Court analogized several cases in which the insurance policies at issue defined \u201coccurrence\u201d 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 McCoy, 174 N.C. App. at 316, 620 S.E.2d at 694-95 (quoting Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 694, 340 S.E.2d 374, 379 (1986)). In so doing, our Court in McCoy focused upon \u201cwhether the damages incurred were expected or intended by the insured in light of the conduct in question[]\u201d rather than on whether the underlying conduct was accidental. McCoy, 174 N.C. App. at 316, 620 S.E.2d at 695 (emphasis added). Our Court stated the applicable test for determining whether the plaintiffs damages were \u201cneither expected nor intended from the standpoint of the insured[,]\u201d and thus were caused by an \u201caccident\u201d:\n\u201c[t]he test should be a \u2018subjective one, from the standpoint of the insured, and not an objective one asking whether the insured \u201cshould have\u201d expected the resulting damage,\u2019 i.e., whether the resulting damage was unexpected or unintended, not whether the act itself was unintended. An \u2018expected or intended\u2019 exclusion applies only \u2018if the resulting injury as well as the act were intentional.\u2019 \u201d\nMcCoy, 174 N.C. App. at 316, 620 S.E.2d at 695 (quoting Washington Housing Auth. v. N.C. Housing Authorities, 130 N.C. App. 279, 285, 502 S.E.2d 626, 630, disc. review denied, 526 S.E.2d 477 (1998)).\nIn McCoy, we applied the test set forth in Washington Housing Authority to hold that while the building inspector\u2019s actions in inspecting the plaintiff\u2019s property and issuing a certificate of occupancy were intentional, the plaintiff\u2019s resulting property damage and bodily injuries were neither intended nor expected. McCoy, 174 N.C. App. at 316-17, 620 S.E.2d at 695. Accordingly, the plaintiff\u2019s damages were caused by an \u201caccident,\u201d and therefore an \u201cevent,\u201d which was covered by the defendants\u2019 insurance policy. Our Court held the defendants waived sovereign immunity to the extent of the applicable insurance coverage. Id.\nThe insurance policy at issue in McCoy did not contain the following language within its definition of occurrence: \u201c[Wjhich results in bodily injury or property damage neither expected nor intended from the standpoint of the insured[.]\u201d McCoy, 174 N.C. App. at 317, 620 S.E.2d at 695. Similarly, the policy at issue in this case does not include, within its definition of \u201coccurrence,\u201d the language quoted above. However, defendant\u2019s general liability insurance policy does exclude from coverage \u201c \u2018[bjodily injury\u2019 or \u2018property damage\u2019 expected or intended from the standpoint of any insured.\u201d\nIn Holz-Her U.S., Inc. v. U.S. Fid. & Guar. Co., 141 N.C. App. 127, 539 S.E.2d 348 (2000), this Court also applied the test set forth in Washington Housing Authority to the determination of whether damages were caused by an \u201coccurrence.\u201d Id. at 129-30, 539 S.E.2d at 350-51. In Holz-Her, our Court cogently set forth the proper focus of the inquiry:\nThe ultimate focus is on the injury, i.e., whether it was expected or intended, not upon the act and whether it was intended. Even intentional acts can trigger a duty to defend, so long as the injury was \u201cnot intentional or substantially certain to be the result of the intentional act.\u201d\nHolz-Her, 141 N.C. App. at 129, 539 S.E.2d at 350 (internal citations omitted).\nIn the case before us, as in McCoy, Holz-Her and Washington Housing Authority, in determining whether plaintiffs alleged injuries were caused by an \u201coccurrence,\u201d the focus should be on whether plaintiffs damages were unexpected and unintended. In other words, we should not focus on the nature of defendant\u2019s alleged precedent acts of negligence in determining whether plaintiffs alleged damages were caused by an \u2018occurrence.\u201d Plaintiff alleged he was.\nseverely injured, when he slipped on the unprotected floor while walking towards the fryer. He fell and slid towards the fryer, feet first. His feet struck the unrestrained Piteo Friolator Model #35C, causing it to tip over. The fryer toppled over on top of him, spilling hot grease over his torso, arms and legs. Plaintiff. . . sustained second and third degree burns over his torso, arms and legs, while performing his job duties as a bartender.\nSuch a sequence of events clearly was \u201cunforseen\u201d and \u201cunexpected\u201d pursuant to Black\u2019s Law Dictionary\u2019s definition of an \u201caccident.\u201d Additionally, plaintiff\u2019s damages were unexpected and unintended from defendant\u2019s standpoint. If anything, plaintiff\u2019s damages in the present case were more unexpected than the plaintiffs damages in McCoy where the plaintiff was the homeowner who suffered damages as a result of the defendants\u2019 negligent inspection of her home. In the present case, it was clearly unintended and unexpected that a third party occupant of the building would suffer damages as a result of defendant\u2019s allegedly negligent inspection. Therefore, we hold that defendant\u2019s general liability insurance policy covers plaintiffs alleged injuries and defendant has waived its sovereign immunity to the extent of the coverage. Accordingly, the trial court' did not err in denying defendant\u2019s motion to dismiss. .\nDefendant\u2019s reliance on City of Wilmington v. Pigott, 64 N.C. App. 587, 307 S.E.2d 857 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 650 (1984) is unpersuasive. In Pigott, the City of Wilmington\u2019s chief building inspector informed the plaintiffs that two greenhouses on their property did not conform to the city building code. Id. at 587, 307 S.E.2d at 858. The building inspector gave the plaintiffs thirty days in which to remove the greenhouses and the plaintiffs complied by removing them. Id. Subsequently, the building inspector informed the plaintiffs that if the greenhouses were less than 400 square feet, they would be allowed. The plaintiffs then filed suit against the City of Wilmington for damages for the loss of their greenhouses, alleging their greenhouses met the requirements of the building code. Id.\nThe City of Wilmington had purchased liability insurance, but its insurance company denied liability for the plaintiffs\u2019 claims. Id. The City of Wilmington filed a motion for summary judgment which the trial court denied. Id. at 588, 307 S.E.2d at 858. The City of Wilmington then filed an action for declaratory judgment and the trial court found that the City of Wilmington\u2019s insurance policy covered the plaintiffs\u2019 claims for damages. Id.\nThe insurance policy at issue in Pigott was similar to the policy in the case before us in that it covered damages for \u201cbodily injury\u201d or \u201cproperty damage\u201d caused by an \u201coccurrence,\u201d which it defined as an \u201caccident.\u201d Id. at 588, 307 S.E.2d at 858-59. In reversing the trial court, the Court held as follows:\nWe cannot label [the building inspector\u2019s] order to the [plaintiffs] to remove their greenhouses an \u201caccident.\u201d The decision did not happen by chance and was not unexpected, unusual or unforseen. It was certainly intended by the City that [the] chief building inspector . . . would exercise his discretion to make these sorts of decisions as he saw fit. While [the building inspector] may have mistakenly or erroneously interpreted the Wilmington building code, his conduct did not amount to an \u201caccident.\u201d Since there was no showing at trial that the act of the City constituted an \u201caccident,\u201d we find that there was no \u201coccurrence\u201d within the meaning of the multi-peril insurance policy.\nId. at 589, 307 S.E.2d at 859.\nIn determining the plaintiffs\u2019 injuries were not caused by an occurrence, the Court appeared to focus on the nature of the precedent acts of the building inspector rather than on the damages suffered by the plaintiffs. However, in light of McCoy, Holz-Her and Washington Housing Authority, this was an improper focus. We find the test articulated in McCoy, Holz-Her and Washington Housing Authority to be more persuasive on the facts in the present case. Additionally, even if we were unable to conclusively determine whether plaintiffs damages were caused by an \u201caccident,\u201d we are required to construe any ambiguities within an insurance policy in favor of the insured. McCoy, 174 N.C. App. at 317, 620 S.E.2d at 695; Gaston County Dyeing Machine Co., 351 N.C. at 299-300, 524 S.E.2d at 563.\nDefendant also attempts to argue the trial court erred by denying defendant\u2019s motions to dismiss based upon a lack of proximate cause between defendant\u2019s alleged negligence and plaintiff\u2019s alleged injuries. However, because defendant failed to assign error to this issue in the record on appeal, we do not review this argument. N.C.R. App. R 10(a).\nAffirmed.\nChief Judge MARTIN and Judge ELMORE concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Battle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr.; and Heidi G. Chapman, PLLC, by Heidi G. Chapman, for plaintiff-appellee.", "Little & Little, PLLC, by Cathryn M. Little, for defendant-appellant, Town of Chapel Hill." ], "corrections": "", "head_matter": "BRIAN DAVIS, Plaintiff-Appellee v. JOSEPH DIBARTOLO, ARRCS, INC., ARRCS, INC. d/b/a ANNIE\u2019S OLD FASHIONED TRATTORIA AND PIZZERIA, MONTGOMERY DEVELOPMENT CAROLINA CORP., S.V. CENTER, LLC, MEL DeSHA d/b/a MEL\u2019S PLUMBING & ELECTRIC CO., ROGER ALAN GIBSON d/b/a GIBSON PLUMBING and the TOWN OF CHAPEL HILL, a North Carolina Municipality, Defendants-Appellants\nNo. COA05-222\n(Filed 21 February 2006)\nImmunity\u2014 sovereign \u2014 building inspection \u2014 insurance coverage\nDefendant town waived sovereign immunity by its purchase of liability insurance and the trial court did not err by denying the town\u2019s motion to dismiss a claim for a negligent building inspection arising from an accident in a restaurant with an \u201cunrestrained\u201d deep-fat fryer. In determining whether plaintiffs injuries were caused by an occurrence under the insurance policy, the focus should be on whether plaintiffs damages were unexpected and unintended rather than on the precedent negligent acts of the building inspector.\nAppeal by defendant Town of Chapel Hill from order entered 22 November 2004 by Judge Wade Barber in Superior Court, Orange County. Heard in the Court of Appeals 14 November 2005.\nBattle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr.; and Heidi G. Chapman, PLLC, by Heidi G. Chapman, for plaintiff-appellee.\nLittle & Little, PLLC, by Cathryn M. Little, for defendant-appellant, Town of Chapel Hill." }, "file_name": "0142-01", "first_page_order": 174, "last_page_order": 182 }