Luhmann v. Hoenig

WYNN, Judge

dissenting.

Because I believe the contract between Carteret County and Cape Carteret Volunteer Fire and Rescue Department, Inc. (“Carteret Fire Department”), conferred the benefit of sovereign immunity under N.C.G.S. § 69-25.8 on the Carteret Fire Department, I respectfully dissent.

The record on appeal shows that the contract between Carteret County and Carteret Fire Department specifically provided that Carteret Fire Department would render fire protection services to the district in exchange for $0.10 per $100 valuation of property taxes collected by the county in the district. In performing its contract with the county, the Carteret Fire Department collected approximately $850,000.00 per year from the County, 98.7% of the department’s annual budget. This infusion of funds allowed the Carteret Fire Department to pay the majority of its firefighters for their services. Also relevant, the Carteret Fire Department had two insurance policies in effect at the time of Luhmann’s injury, each with a policy limit of one million dollars. Finally, the Carteret Fire Department did not initially claim to be a “rural fire department” under N.C.G.S. § 58-82-5; rather, the Fire Department’s Answer asserted sovereign immunity (N.C.G.S. § 69-25.8) as a defense:

these answering defendants allege that they are entitled to sovereign, governmental and qualified immunity, except to the extent those immunities may be deemed waived by the purchase of liability insurance ...

*459Indeed, the Carteret Fire Department first developed its “rural fire department” theory in a 11 March 2002 summary judgment motion, almost two years after Luhmann filed his Complaint and less than two months prior to the Judgment from which they now appeal.

In light of their contract with and significant compensation from the county, no less than 98.7% of the department’s budget, I would hold that Carteret Fire Department acted as a “fire protection district fire department,” as was held by the trial court. As such, the Carteret Fire Department was entitled to sovereign immunity under N.C.G.S. § 69-25.8. However, because the Carteret Fire Department purchased two insurance policies, each with a policy limit of one million dollars, I would uphold the trial court’s judgment in favor of Luhmann. See N.C.G.S. § 153A-435(a) (The purchase of liability insurance “waives the county’s governmental immunity, to the extent of insurance coverage, for any act or omission occurring in the exercise of a governmental function.”).

Moreover, I disagree with the majority’s contention that even if Carteret Fire Department was a “ ‘fire protection district fire department’ as Luhmann argues, the specific immunity provided by N.C. Gen. Stat. § 58-82-5 would still apply to the facts at bar.” N.C.G.S. § 69-25.8 and N.C.G.S. § 58-82-5 cover different types of fire departments, codify different immunities, and are not interchangeable. N.C.G.S. § 69-25.8 governs “district fire departments,” whereas N.C.G.S. § 58-82-5 governs “rural fire departments.” Since the Carteret Fire Department, by virtue of its contract with Carteret County acted as a “district fire department,” it was entitled to immunity under N.C.G.S. § 69-25.8.

In sum, Carteret Fire Department acquired “district fire department” status by virtue of its contract with Carteret County. Although Carteret Fire Department enjoyed sovereign immunity under the statutory provision governing “district fire departments,” N.C.G.S. § 69-25.8, they waived that immunity by purchasing insurance. Thus, the trial court’s judgment was not erroneous and should not be disturbed.