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Pruett v. Bingham

Court of Appeals of North Carolina

December 16, 2014

SAMMY R. PRUETT, Plaintiff,
JOEL D. BINGHAM and JEAN'S BUS SERVICE, INC., Defendants and Third-Party Plaintiffs,

Heard in the Court of Appeals: August 12, 2014.

Page 358

Appeal by third-party plaintiffs from order entered 8 October 2013 by Judge Hugh B. Lewis in Rutherford County Superior Court,  No. 13 CVS 81.

Davis and Hamrick, L.L.P., by H. Lee Davis, Jr., and Katherine M. Barber-Jones, for defendant and third-party plaintiff-appellants.

Meghann K. Burke and Michael E. Casterline for third-party defendant-appellees Matthew Brackett and Mountain Home Fire & Rescue Department, Inc.

BRYANT, Judge. Chief Judge McGEE concurs. Judge STROUD dissents.


Page 359

BRYANT, Judge.

Because incorporated fire departments contracted to provide fire prevention, emergency medical, rescue, and ambulance services are granted governmental immunity, we affirm the trial court's dismissal of claims as to Mountain Home Fire & Rescue Department, Inc., and Brackett based on governmental immunity and public official immunity. Where plaintiffs had adequate notice of defendants' affirmative defenses but failed to timely amend their complaint accordingly, plaintiffs' oral motion to amend their complaint was properly denied.

On 28 January 2013, plaintiff Sammy R. Pruett brought suit against defendants Joel D. Bingham and Jean's Bus Service, Inc. The allegations in the complaint assert that on 8 February at 7:00 a.m., Pruett was driving a pickup truck in Hendersonville along I-26 West approaching the U.S. Highway 25 intersection. At the same time, defendant Joel Bingham was driving a commercial bus owned by defendant Jean's Bus Service, also traveling west on I-26 approaching the U.S. Highway 25 intersection. Plaintiff alleged that Bingham's commercial bus rear-ended Gregory Wiggins' 2009 GMC pickup truck. Wiggins' truck was then propelled forward and into the back of a 2006 Ford pickup driven by Edward Burnett. Bingham's bus and Wiggins' truck travelled into the right lane of I-26 where they then collided with plaintiff Pruett's vehicle. Pruett sought a recovery against Bingham and Jean's Bus Service (Bingham and Jean) for damages as a result of the collision.

Bingham and Jean answered Pruett's complaint and filed a third-party complaint against Gregory Wiggins, Matthew Brackett, and Mountain Home Fire & Rescue Department, Inc., as third-party defendants. Bingham and Jean alleged that at the time of the collision, third-party defendant Brackett was operating a vehicle owned or leased by Mountain Home Fire & Rescue Department. Just prior to the collision, Brackett entered onto I-26 and moved his vehicle into the far left lane. Brackett then stopped his vehicle in the left hand lane in order to make a left turn onto a section of the median. The vehicles traveling in the left hand lane behind

Page 360

Brackett attempted to stop suddenly, resulting in several collisions.

Brackett and Mountain Home Fire & Rescue Department responded that Brackett was driving a fire department vehicle owned by Mountain Home Fire & Rescue Department in the course and scope of his employment and was responding to an emergency call when he positioned the vehicle in the " emergency use" median. Brackett and Mountain Home Fire & Rescue Department made a motion to dismiss contending that the claims were barred by governmental or sovereign immunity and by " public officer / official immunity."

On 26 August 2013, third-party defendants Brackett and Mountain Home Fire & Rescue Department (" defendants" ) moved for summary judgment. Hearings were held on 26 May and 30 September 2013, during which counsel for defendants indicated that Brackett was responding to an emergency call indicating a motorist was suffering chest pains. By order entered 17 October, the trial court granted defendants' motion to dismiss with prejudice. Bingham and Jean appeal.

On appeal, Bingham and Jean raise the following issues: whether the trial court erred in (I) granting defendants' motion to dismiss; and (II) failing to allow Bingham and Jean's oral motion to amend the third-party complaint.[1]


Bingham and Jean first argue the trial court erred in granting defendants' motion to dismiss. Specifically, Bingham and Jean claim the trial court erred in granting defendants' motion to dismiss because: (1) defendants are not governmental entities and, thus, not entitled to such immunity; (2) even if defendants were subject to governmental immunity, such immunity was waived by defendants' liability insurance; and (3) defendants failed to timely produce documents concerning their immunity defense. We disagree.

[Summary] judgment sought shall be rendered forthwith if 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) (2013). " We review an order allowing summary judgment de novo." Moore v. Nationwide Mut. Ins. Co., 191 N.C.App. 106, 108, 664 S.E.2d 326, 328 (2008) (citation omitted).

Bingham and Jean contend that because of the negligent act alleged in the third-party complaint, defendants are not entitled to immunity.

" In North Carolina the law on governmental immunity is clear. In the absence of some statute that subjects them to liability, the state and its governmental subsidiaries are immune from tort liability when discharging a duty imposed for the public benefit." McIver v. Smith, 134 N.C.App. 583, 585, 518 S.E.2d 522, 524 (1999) (citations omitted). " One cannot recover for personal injury against a government entity for negligent acts of agents or servants while they are engaged in government functions." Id. at 585, 518 S.E.2d at 524 (citations omitted). " Historically, government functions are those activities performed by the government which are not ordinarily performed by private corporations." Id. at 586, 578 S.E.2d at 525 (citation omitted). " The test to determine if an activity is governmental in nature is whether the act is for the common good of all without the element of pecuniary profit." Id. at 587, 518 S.E.2d at 525 (citation and quotations omitted). " Activities which can be performed only by a government agency are shielded from liability, while activities that can be performed by either private persons or government agencies may be shielded, depending on the nature of the activity." Id. at 587, 518 S.E.2d at 526 (citation omitted).

Page 361

" [T]he organization and operation of a fire department is a governmental function." Willis v. Town of Beaufort, 143 N.C.App. 106, 109, 544 S.E.2d 600, 603 (2001) (quoting Great American Ins. Co. v. Johnson, 257 N.C. 367, 370, 126 S.E.2d 92, 94 (1962)) (considering the affirmative immunity defense of a town fire department).

Within Chapter 153A of our General Statutes (" Counties" ), our legislature has established that " [a] county may establish, organize, equip, support, and maintain a fire department . . . [or] may contract for fire-fighting or prevention services with . . . incorporated volunteer fire departments . . . ." N.C. Gen. Stat. § 153A-233 (2013) (" Fire-fighting and prevention services" ). The county board of commissioners may define service districts for the purpose of fire protection. See id. § 153A-301(a)(2). " If a service district is established . . . for fire protection purposes . . . the board of county commissioners may, by resolution, permit the service district to provide emergency medical, rescue, and/or ambulance services . . . ." Id. § 153A-309(a).

In Luhmann v. Hoenig, 358 N.C. 529, 597 S.E.2d 763 (2004), our Supreme Court addressed the question of whether the defendant, Cape Carteret Volunteer Fire and Rescue Department, was immune from suit for injuries the plaintiff sustained while the defendant's fire fighters were fighting a brush fire. The plaintiff brought a claim for negligence. A trial court found the defendant liable and awarded the plaintiff damages. On appeal, a divided panel of this Court reversed the trial court's judgment on the basis that General Statutes, section 58-82-5 limited the liability of rural fire departments.[2] In pertinent part, the dissent argued that the defendant was entitled to immunity conferred under section 69-25.8 " which provides sovereign immunity for fire protection districts." Id. at 531, 597 S.E.2d at 764 (citation omitted). The plaintiff appealed to our Supreme Court, which looked to the relationship between the County and the defendant fire department. The Court observed that pursuant to Chapter 69, a county's board of commissioners was authorized to provide fire protection services for a district by contracting with an incorporated nonprofit volunteer fire department and that the board was authorized to fund its fire protection services by a tax levy. Id. at 533, 597 S.E.2d at 765 (citing N.C. Gen. Stat. § § 69-25.4(a), 69-25.5(1) (2003)). The Carteret County Board of Commissioners had contracted the defendant fire department to provide fire protection services within the Cape Carteret Fire and Rescue Service District in exchange for compensation generated by the levy of an ad valorem tax on property within the district. Id. Our Supreme Court held that the defendant constituted a fire protection district within the meaning of General Statutes, Chapter 69. Id. And, " [a]s such, the fire department [was] entitled to the same immunities as a county or municipal fire department under N.C.G.S. § 69-25.8." Id.

Pursuant to General Statutes, Chapter 69 (" Fire Protection" ), Article 3A (" Rural Fire Protection Districts" ), section 25.8 (" Authority, rights, privileges and immunities of counties, etc., performing services under Article" ),

[a]ny county, municipal corporation or fire protection district performing any of the services authorized by this Article shall be subject to the same authority and immunities as a county would enjoy in the operation of a county fire department within the county[.]
. . .
Members of any county, municipal or fire protection district fire department shall have all of the immunities, privileges and rights . . . when performing any of the functions authorized by ...

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