dissenting.
I disagree with the majority’s determination that nothing flows from the Attorney General’s failure to fulfill its statutory duties under N.C. Gen. Stat. § 143-300.8 (1993).
Petitioner Phillip B. Cates, a registered sanitarian as defined by N.C. Gen. Stat. § 90A-50 (1992), was employed by the Environmental Health Division of the Durham County Health Department. He and Durham County appeal the trial court’s order denying their Petition for Judicial Review, denying their Request for Declaratory Judgment, which included Durham County’s Motion to Intervene and petitioner’s *250request to make the Department of Environment, Health and Natural Resources (DEHNR) an additional party, and holding that the question of state responsibility was moot. I would reverse and remand.
I.
The trial court erred by dismissing the Petition for Judicial Review, finding that the Attorney General did not have a duty to defend Mr. Cates in the H&W lawsuit under N.C.G.S. § 143-300.8, and finding the issue of state responsibility moot.
N.C.G.S. § 143-300.8 contains a very specific mandate — a sanitarian enforcing the rules of the Commission for Health Services shall be defended by the Attorney General in a lawsuit brought against the sanitarian for an act or omission made in the scope of enforcing such rules. Thus, if Mr. Cates enforced the rules of the Commission at the time he performed the preliminary soil evaluation, N.C.G.S. § 143-300.8 required the Attorney General to defend him subject to the provisions of N.C.G.S. § 143-300.4.
Affidavits in the record establish that in 1986, preliminary soil evaluations were done in Durham County as a part of the overall septic tank approval process required by the state. Durham County sanitarians and soil scientists followed the criteria set forth in 10 N.C.A.C. 10A .1934 (1990) the only procedure for conducting preliminary soil evaluations used by Durham County. In fact, the state mandated using these procedures for preliminary soil evaluations.
When Mr. Cates enforced the state’s sewage regulations, he enforced the rules of the Commission. See 57 N.C. Atty. Gen. Rep. 2, 3 (1987); see also 49 N.C. Atty. Gen. Rep. 12,14 (1979) (stating that the Department has authorized sanitarians employed by local health departments to enforce state health laws and rules and sanitarians act as authorized agents of the Department).
In short, N.C.G.S. § 143-300.8 required the Attorney General to defend Mr. Cates in this lawsuit because of a state interest. The trial court erred by dismissing the Petition for Judicial Review, upholding the Attorney General’s refusal to defend Mr. Cates, and finding the question of state responsibility was moot.
II.
The trial court further erred by denying — A) Durham County’s Motion to Intervene in the judicial review proceeding and, B) *251Petitioners’ request to make DEHNR a party to the declaratory judgment proceeding.
A.
Durham County moved to intervene in this proceeding. N.C. Gen. Stat. § 150B-46 (1991) provides that during the judicial review process, “[a]ny person aggrieved may petition to become a party by filing a motion to intervene as provided in G.S. 1A, Rule 24.” Rule 24 provides that anyone shall be permitted to intervene who claims an interest relating to the property or transaction which is the subject of the action and his absence may impair or impede his ability to protect that interest. N.C.R. Civ. P. 24(a)(2) (1990).
Durham County is an aggrieved party claiming an interest relating to the property or transaction which is the subject of the action. The County expended funds, including its own deductible, on its liability policy. Additionally, the County’s absence may impair or impede its ability to protect its interest in obtaining contribution on the damages paid for this lawsuit. The trial court erred by failing to allow Durham County’s motion to intervene.
B.
Petitioners requested that DEHNR be made a party to the declaratory judgment proceeding. Petitioners notified DEHNR of its indemnification claim by service of process dated 17 October 1989.
The Attorney General’s obligation to defend Mr. Cates arises from the connection between his service as a sanitarian and the language of N.C.G.S. § 143-300.8 which mandates that “[DEHNR] shall pay . . . any settlement made on his behalf, subject to the provisions of G.S. 143-300.6.” (Emphasis supplied.) To conclude that DEHNR should not be made a party is to overlook the the fact that N.C.G.S. § 143-300.8 obligates DEHNR to pay the damages even if it is not a named party. Simply put, the Attorney General represents the interests of DEHNR in these actions.
Having previously determined that Mr. Cates’ actions fell within the purview of N.C.G.S. § 143-300.8, I would reverse and remand to the trial court for entry of an order granting Mr. Cates’ request that DEHNR be made a party to this action.
*252III.
DEHNR should reimburse Durham County’s insurer for — A) the attorney’s fees incurred in defending the lawsuit; and B) the amount of the settlement.
A.
By defending Mr. Cates, Durham County’s insurer simply fulfilled its contractual obligation to defend under terms of the insurance policy. It is entitled to no reimbursement for performing a duty that it had contracted to do. Moreover, the Attorney General’s duty to defend is now a moot issue since the litigation is now concluded.
B.
However, the duty to pay damages resulting from Mr. Cates’ acts of negligence is a present obligation on the part of both DEHNR and the insurer for Durham County. DEHNR is statutorily required to pay the damages under N.C.G.S. § 143-300.8, and the insurer is contractually required to pay the damages under the provisions of their policy for Durham County. Nonetheless, there can be only one recovery for the plaintiff in the original action (H&W); and, it stands to reason that this recovery should be paid jointly by Durham County through its insurance policy and DEHNR, subject to N.C.G.S. § 143-300.6.
On remand, the trial court would first determine whether the evidence sufficiently supports Durham County’s determination that Mr. Cates was negligent; and if so, whether the settlement amount paid by the insurer was fair and reasonable. Upon satisfying these two determinations, the trial court would next apportion between DEHNR and Durham County the fair and reasonable contribution that each would make towards the settlement. Although I believe that Durham County is not entitled to a direct reimbursement of its attorney’s fees, I would allow the trial court, in its discretion, to consider as a factor in the determination of the amount of contribution, that the State incurred no expense in defending the negligence action, and that Durham County incurred legal expense in bringing the action to a close.
In sum, I would reverse and remand this matter to the trial court for a determination of the amount of contribution that DEHNR must make towards the settlement subject to the limitations set forth in N.C.G.S. § 143-300.6.