(a) A county may contract to insure itself and any of its officers, agents, or employees against liability for wrongful death or negligent or intentional damage to person or property or against absolute liability for damage to person or property caused by an act or omission of the county or of any of its officers, agents, or employees when acting within the scope of their authority and the course of their employment. The board of commissioners shall determine what liabilities and what officers, agents, and employees shall be covered by any insurance purchased pursuant to this subsection.
Purchase of insurance pursuant to this subsection 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. 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. By entering into an insurance contract with the county, an insurer waives any defense based upon the governmental immunity of the county.
If a county uses a funded reserve instead of purchasing insurance against liability for wrongful death, negligence, or intentional damage to personal property, or absolute liability for damage to person or property caused by an act or omission of the county or any of its officers, agents, or employees acting within the scope of their authority and the course of their employment, the county board of commissioners may adopt a resolution that deems the creation of a funded reserve to be the same as the purchase of insurance under this section. Adoption of such a resolution waives the county's governmental immunity only to the extent specified in the board's resolution, but in no event greater than funds available in the funded reserve for the payment of claims.
(b) If a county has waived its governmental immunity pursuant to subsection (a) of this section, any person, or if he dies, his personal representative, sustaining damages as a result of an act or omission of the county or any of its officers, agents, or employees, occurring in the exercise of a governmental function, may sue the county for recovery of damages. To the extent of the coverage of insurance purchased pursuant to subsection (a) of this section, governmental immunity may not be a defense to the action. Otherwise, however, the county has all defenses available to private litigants in any action brought pursuant to this section without restriction, limitation, or other effect, whether the defense arises from common law or by virtue of a statute.
Despite the purchase of insurance as authorized by subsection (a) of this section, the liability of a county for acts or omissions occurring in the exercise of governmental functions does not attach unless the plaintiff waives the right to have all issues of law or fact relating to insurance in the action determined by a jury. The judge shall hear and determine these issues without resort to a jury, and the jury shall be absent during any motion, argument, testimony, or announcement of findings of fact or conclusions of law relating to these issues unless the defendant requests a jury trial on them. (1955, c. 911, s. 1; 1973, c. 822, s. 1; 1985 (Reg. Sess., 1986), c. 1027, s. 27; 2003-175, s. 2.)
Notes of Decisions
Cited in
100
cases (
18 in the last 5 years), 1975–2026 · leading case:
Efird v. Riley, 342 F. Supp. 2d 413 (M.D.N.C. 2004).
Efird v. Riley, 342 F. Supp. 2d 413 (M.D.N.C. 2004).
· cites it 25× “Brad Riley and Cabarrus County Sheriffs Department have adopted a plan of insurance pursuant to NCGS § 153A-435 and have waived its [sic] immunity from civil liability.”
Wood v. North Carolina State Univ., 556 S.E.2d 38 (N.C. Ct. App. 2001).
· cites it 17× “Indeed, N.C. Gen. Stat. § 153A-435 (1999) provides that “[p]urchase of insurance pursuant to this subsection waives the county’s governmental immunity, to the extent of insur- *340 anee coverage, for any act or omission occurring in the exercise of a governmental function.”
Dawes v. Nash Cnty., 584 S.E.2d 760 (N.C. 2003).
· cites it 12× “*443 Plaintiff contends that Nash County has waived the defense of sovereign immunity by purchasing an insurance policy pursuant to N.C.G.S. § 153A-435. Defendant Nash County argues that the proper interpretation of the policy does not provide insurance coverage for the county…”
Meyer v. Walls, 489 S.E.2d 880 (N.C. 1997).
· cites it 9× “N.C.G.S. § 153A-435 provides that a county’s governmental immunity may be waived by the purchase of liability insurance.”
Kephart Ex Rel. Tutwiler v. Pendergraph, 507 S.E.2d 915 (N.C. Ct. App. 1998).
· cites it 29× “*561 Contained within the Program was a provision that [t]he establishment of this Program shall not be deemed to be a waiver of immunity through the purchase of insurance within the meaning of N.C. Gen. Stat. § 153A-435 ... or the waiver of any defense or rule of governmental…”
Dawes v. Nash Cnty., 559 S.E.2d 254 (N.C. Ct. App. 2002).
· cites it 29× “§ 153A-435(a) states: A county may contract to insure itself and any of its officers, agents, or employees against liability for wrongful death or negligent or intentional damage to person or property or against absolute liability for damage to person or property caused by an…”
Bullard v. Wake Cnty., 729 S.E.2d 686 (N.C. Ct. App. 2012).
· cites it 15× “We hold that because the County did not, during the pertinent time frame, have insurance that would cover the claims in this case, there was no waiver of sovereign immunity under N.C. Gen. Stat. § 153A-435 (2011). The trial court, therefore, properly granted the motion for…”
Meyer v. Walls, 471 S.E.2d 422 (N.C. Ct. App. 1996).
· cites it 15× “143-291(a) provides a general waiver of immunity for claims against “the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State .”
Hart v. Brienza, 784 S.E.2d 211 (N.C. Ct. App. 2016).
· cites it 4× “Plaintiff alleged Gaston County had waived its governmental immunity through the purchase of a liability insurance policy pursuant to N.C. Gen.Stat. § 153A-435. On 7 November 2013, Defendants answered Plaintiff's complaint and filed a motion to dismiss pursuant to North Carolina…”
Green Ex Rel. Crudup v. Kearney, 690 S.E.2d 755 (N.C. Ct. App. 2010).
· cites it 4× “§ 143-291 and N.C. Gen. Stat. § 153A-435 (2009), which provides that a county may purchase liability insurance, but purchase of such insurance waives its governmental immunity.”
Sellers v. Rodriguez, 561 S.E.2d 336 (N.C. Ct. App. 2002).
· cites it 6× “§ 160A-485 (1999); N.C. Gen. Stat. § 153A-435 (1999). A plaintiff bringing claims against a governmental entity and its employees acting in their official capacities must allege and prove that the officials have waived their sovereign immunity or otherwise consented to suit; by…”
— N.C. Gen. Stat. § 153A-435(1991) — 1 case
— N.C. Gen. Stat. § 153A-435(a) — 66 cases
Meyer v. Walls, 489 S.E.2d 880 (N.C. 1997).
“N.C.G.S. § 153A-435 provides that a county’s governmental immunity may be waived by the purchase of liability insurance.”
Dawes v. Nash Cnty., 559 S.E.2d 254 (N.C. Ct. App. 2002).
“§ 153A-435(a) states: A county may contract to insure itself and any of its officers, agents, or employees against liability for wrongful death or negligent or intentional damage to person or property or against absolute liability for damage to person or property caused by an…”
Kephart Ex Rel. Tutwiler v. Pendergraph, 507 S.E.2d 915 (N.C. Ct. App. 1998).
“*561 Contained within the Program was a provision that [t]he establishment of this Program shall not be deemed to be a waiver of immunity through the purchase of insurance within the meaning of N.C. Gen. Stat. § 153A-435 ... or the waiver of any defense or rule of governmental…”
— N.C. Gen. Stat. § 153A-435(a)(2000) — 1 case
Dawes v. Nash Cnty., 559 S.E.2d 254 (N.C. Ct. App. 2002).
“§ 153A-435(a) states: A county may contract to insure itself and any of its officers, agents, or employees against liability for wrongful death or negligent or intentional damage to person or property or against absolute liability for damage to person or property caused by an…”
— N.C. Gen. Stat. § 153A-435(b) — 8 cases
Meyer v. Walls, 471 S.E.2d 422 (N.C. Ct. App. 1996).
“143-291(a) provides a general waiver of immunity for claims against “the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State .”
Bullard v. Wake Cnty., 729 S.E.2d 686 (N.C. Ct. App. 2012).
“We hold that because the County did not, during the pertinent time frame, have insurance that would cover the claims in this case, there was no waiver of sovereign immunity under N.C. Gen. Stat. § 153A-435 (2011). The trial court, therefore, properly granted the motion for…”
Kephart Ex Rel. Tutwiler v. Pendergraph, 507 S.E.2d 915 (N.C. Ct. App. 1998).
“*561 Contained within the Program was a provision that [t]he establishment of this Program shall not be deemed to be a waiver of immunity through the purchase of insurance within the meaning of N.C. Gen. Stat. § 153A-435 ... or the waiver of any defense or rule of governmental…”
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