immunity defense in North Carolina

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2021Accordingly, the NCACC Policy did not waive Defendants’ governmental immunity. ¶ 30 Plaintiffs argue that “the absurd result created by these cases, which in effect spends taxpayer funds for policies that will never pay out on behalf of the named insured, is improper.” But “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384 , 379 S.E.2d 30, 37 (1989). 2.

2021Accordingly, the NCACC Policy did not waive Defendants’ governmental immunity. ¶ 30 Plaintiffs argue that “the absurd result created by these cases, which in effect spends taxpayer funds for policies that will never pay out on behalf of the named insured, is improper.” But “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384 , 379 S.E.2d 30, 37 (1989). 2.

2003See Corum v. University of North Carolina, 97 N.C.

2002See Corum v. University of North Carolina, 97 N.C.

2002Unless waived, "the immunity provided by the doctrine [of sovereign immunity] is absolute and unqualified." Price, 132 N.C.App. at 559 , 512 S.E.2d at 786 (internal quotation marks omitted).

2002Unless waived, "the immunity provided by the doctrine [of sovereign immunity] is absolute and unqualified." Price, 132 N.C.App. at 559 , 512 S.E.2d at 786 (internal quotation marks omitted).

1939This doctrine of immunity, protecting instrumentalities of either the State or the Federal Government from interference at the hands of the other, developed by Marshall (McCulloch v. Maryland, 4 Wheaton, 316, 432, 436 ) to aid the perpetuation of the dual sovereignty established by our Constitution, is not undergoing a process of expansion.

1939This doctrine of immunity, protecting instrumentalities of either the State or the Federal Government from interference at the hands of the other, developed by Marshall (McCulloch v. Maryland , 4 Wheaton, 316, 432, 436 ) to aid the perpetuation of the dual sovereignty established by our Constitution, is not undergoing a process of expansion.

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2022Sossamon, 563 U.S. at 284 (a waiver of sovereign immunity cannot be “implied” and must be “unequivocally expressed”). ¶ 19 Troy University argues that under this Court’s precedent in Guthrie v. North Carolina State Ports Authority, 307 N.C. 522 (1983), a sue and be sued clause “is not always construed as an express waiver of sovereign immunity and is not dispositive of the immunity defense when suit is brought against an agency of the State.” Id. at 538 .

2012It is axiomatic that “[a]bsent consent or waiver, the immunity provided by the doctrine is absolute and unqualified.” Messick v. Catawba County, 110 N.C.

2003“Absent consent or waiver, the immunity provided by the doctrine is absolute and unqualified.” Messick, 110 N.C.

2003DOT, 152 N.C.App. 666, 667 , 568 S.E.2d 643, 645 (citation omitted), cert. denied, 356 N.C. 438 , 572 S.E.2d 786 (2002).

2003DOT, 152 N.C.

2025Inasmuch as the immunity waiver recognized in Smith was confined to contracts “authorized by law,” the State could, “with a fair degree of accuracy, estimate the extent of liability for a breach of contract.” Id. at 322 ; see also Wray v. City of Greensboro, 370 N.C. 41, 47 (2017) (noting that a valid contract waives the State’s sovereign immunity only “to the extent of th[e] contract”).

2023The only requirement was that the legislative action had “a rational relationship” to the legislature’s “purposes.” Martinez, 444 U.S. at 282 , 62 L.Ed.2d at 487 (quotation marks omitted); see also Martinez, 444 U.S. at 282 , 62 L.Ed.2d at 487 (“[E]ven if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.”). ¶ 67 Here, face

2023The only requirement was that the legislative action had “a rational relationship” to the legislature’s “purposes.” Martinez, 444 U.S. at 282 , 62 L.Ed.2d at 487 (quotation marks omitted); see also Martinez, 444 U.S. at 282 , 62 L.Ed.2d at 487 (“[E]ven if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.”). ¶ 67 Here, face

2008A public official for purposes of applying the immunity doctrine is a person “whose position is created by the constitution or statutes of the sovereignty,” Cherry v. Harris, 110 N.C.

2008App. 478, 480 , 429 S.E.2d 771, 772 (citation, quotation marks, brackets and ellipses omitted), disc. review denied, 335 N.C. 171 , 436 S.E.2d 371 (1993), and who exercises discretion in the execution of “some portion of the sovereign power,” Cherry, 110 N.C.

2006"Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are `absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.'" Meyer v. Walls, 347 N.C. 97, 113 , 489 S.E.2d 880, 889 (1997) (quoting Hare v. Butler, 99 N.C.App. 693, 700 , 394 S.E.2d 231, 235-36 , disc. rev. denied, 327 N.C. 634 , 399 S.E.2d 121 (1990)).

2006"Discretionary acts are those requiring personal deliberation, decision and judgment; duties are ministerial when they are `absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.'" Meyer v. Walls, 347 N.C. 97, 113 , 489 S.E.2d 880, 889 (1997) (quoting Hare v. Butler, 99 N.C.App. 693, 700 , 394 S.E.2d 231, 235-36 , disc. rev. denied, 327 N.C. 634 , 399 S.E.2d 121 (1990)).

1999Moreover, “[t]he provision of police services, and the erection and operation of prisons and jails, have previously been determined to *560 constitute governmental functions.” Kephart, supra (citations omitted) (holding actions of county officials in maintaining confinement facilities constitute governmental functions for purposes of applying sovereign immunity); see also, Harwood v. Johnson, 326 N.C. 231 , 388 S.E.2d 439 , reh’g denied, 326 N.C. 488 , 392 S.E.2d 90 (1990).