Galligan v. Town of Chapel Hill

MallaRD, C.J. G.S. 160-191.1, which is the codification of Chapter 1015 of the Session Laws of 1951, reads in pertinent part as follows: “The governing body of any incorporated city or town, by securing liability insurance as hereinafter provided, is hereby authorized and empowered, but not required, to waive its governmental immunity from liability for any damage by reason of death, or injury to person or property, proximately caused by the negligent operation of any motor vehicle by an officer, agent or employee of such city or town when acting within the scope of his authority or within the course of his employment. Such immunity is waived only to the extent of the amount of the insurance so obtained. Such immunity shall be deemed to have been waived in the absence of affirmative action by such governing body.” The resolution of 25 June 1951 of the Board of Aldermen of the Town of Chapel Hill reads as follows: “Upon motion of Alderman Cornwell and seconded by Aider-man Burch, the above Resolution was introduced for passage and the same was duly passed, the following number voting in the affirmative: Fowler, Fitch, Burch, Davis, Cornwell, and Putnam, and the following number voting in the negative: None. Mr. Lanier brought up the question of a Resolution for not waiving governmental immunity for damages. After discussing this matter, Mr. Burch moved that the following recommended Resolution be adopted. WHEREAS, Chapter 1015 of the Session Laws of 1951 provides a method whereby municipalities 'may waive their governmental immunity; and [417] WHEREAS, one provision of said law seems to require positive action on the part of this Governing Body with respect to whether or not it desires to waive such governmental immunity; and, WHEREAS, it is the opinion of this Governing Body that the waiving of such immunity is not to the best interest of this municipality: NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF CHAPEL HILL, N. C., does not under any circumstances or in any respect as suggested by Chapter 1015 of the Session Laws of 1951 or in any other manner waive its governmental immunity for damages to property or injury to persons as a result of its activities. Mr. Burch’s motion was seconded by Mr. Fitch and passed unanimously.” From the time that it passed the resolution in 1951 until the date of the collision in question the Town of Chapel Hill took no further action with respect to its non-waiver of governmental immunity. The total time since it passed the original resolution was over 14 years. We do not think that the General Assembly intended that a municipality could exempt itself from liability in accordance with the provisions of Chapter 1015 of the Session Laws of 1951 by simply passing a one time blanket resolution. We have not found any case directly on point with the facts of the present case. However, in the case of White v. Mote, 270 N.C. 544, 155 S.E. 2d 75 (1967), we find the following language: “Where a municipal corporation procures liability insurance on a vehicle used by it in the performance of a governmental function, it may, but is not required to, waive its governmental immunity for the negligent operation of such vehicle to the extent of the amount of liability insurance. . . .” In the absence of affirmative action on the part of the governing body of the Town of Chapel Hill, its governmental immunity would be deemed to have been waived by the purchase of liability insurance. G.S. 160-191.1 and G.S. 160-191.4. In the present case, the liability insurance policy (Hartford Accident and Indemnity Company, Policy No. 22 C 352288) was issued on and was effective after 11 July 1965 to 11 July 1966. (This policy shows that there was a previous policy which was numbered 22 C 351282). The question presented for decision is: Did the Town of Chapel Hill waive its defense of governmental immunity from liability for the tort alleged in this action to the extent of the liability insurance policy which it purchased effective 11 July 1965? G.S. 160-191.4 provides: “An incorporated city or town may in [418] cur liability pursuant to this article only with respect to a claim arising after such city or town has procured liability insurance pursuant to this article and during the time when such insurance is in force.” On 25 June 1951, before the effective date of the foregoing statutes, the governing authorities of the Town of Chapel Hill took affirmative action to retain its governmental immunity, but, thereafter, as of 11 July 1965, the governing body of the Town of Chapel Hill again took the affirmative action of purchasing and procuring liability insurance as authorized by G.S. 160-191.1, and did not subsequently act to retain its governmental immunity. Defendant, Town of Chapel Hill, admitted at the trial that “on July 18, 1965, this liability insurance policy, which would cover the police car being operated by Mr. Smith at the time of this accident, was in full force and effect.” We are of the opinion, and so hold, when the Town of Chapel Hill purchased and procured the policy of insurance No. 22 C 352288 on 11 July 1965 from the Hartford Accident and Indemnity Company, that to the extent of such insurance, the said Town had waived its governmental immunity pursuant to G.S. 160-191.1 by failing to subsequently take affirmative action to retain it. We have considered the other question raised by the appellant in regard to the change of venue and find it to be without merit. For the reasons stated, the judgment of the Superior Court dismissing this action as to the Town of Chapel Hill is Reversed. BRXtt and Parker, JJ., concur.