Fuller v. Wake Cty.Â
254 N.C. App. 32
| N.C. Ct. App. | 2017Background
- Six Forks Rescue Squad (Six Forks) was a franchised, volunteer non-profit EMS provider in Wake County required by franchise to deliver EMS and submit annual audits.
- Wake County discovered Six Forks submitted a fraudulent FY2009 audit; county internal auditor reported the fraud to Raleigh Police, triggering a criminal investigation that led to Fuller’s arrest for alleged embezzlement (charges later dismissed).
- After discovering the fraud, Six Forks’ board ceased EMS operations, transferred ambulances and supplies to Wake County, and later voted to dissolve and transfer vehicles to Wake County for $1; Wake County EMS assumed operational control of the district.
- Fuller (former Six Forks treasurer) sued Wake County alleging it maliciously fabricated embezzlement accusations to force an involuntary takeover as part of a county consolidation plan; he pleaded torts including malicious prosecution, false arrest, false imprisonment, intentional infliction of emotional distress, and respondeat superior.
- Wake County moved for dismissal and summary judgment asserting governmental immunity; the trial court dismissed claims against fictitious defendants as time-barred and later granted Wake County summary judgment on immunity grounds. Fuller appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wake County’s conduct was governmental or proprietary for immunity purposes | Fuller: County’s takeover was a "hostile, commercial acquisition" (proprietary) not protected by immunity | Wake County: Actions were discretionary exercises of statutorily delegated duties to ensure and regulate EMS (governmental) | Held: Governmental — immunity applies because legislature charged counties to ensure/regulate EMS |
| Whether Wake County waived immunity by purchasing or requiring insurance naming the county as insured | Fuller: Franchise requirement that Six Forks buy insurance and name Wake County waived immunity | Wake County: Any insurance was procured by Six Forks, not the county; county’s own excess policies did not waive immunity for these claims | Held: No waiver — plaintiff did not show county purchased insurance that waived immunity; county’s policies did not waive immunity |
| Whether Wake County waived immunity by entering asset-transfer contract with Six Forks | Fuller: Asset-transfer agreement constituted consent to be sued | Wake County: No valid contractual consent by Fuller; Fuller was not a party and did not plead breach of contract | Held: No waiver — Fuller failed to plead or prove contractual waiver or breach |
| Whether Wake County is liable as successor/transferee of Six Forks (statutory or common-law successor liability) | Fuller: County liable under N.C. Nonprofit Corp. Act §55A-14-08 and common-law de facto merger successor liability | Wake County: Successor-liability claims were not pleaded properly below and Fuller failed to move to amend or join necessary parties | Held: Claims not considered on merits — plaintiff failed to plead or litigate successor-liability theories below |
Key Cases Cited
- Estate of Williams ex rel. Overton v. Pasquotank Cnty. Parks & Recreation Dep’t, 366 N.C. 195 (N.C. 2012) (adopted multi-step test to determine whether county activity is governmental or proprietary)
- Bynum v. Wilson Cnty., 367 N.C. 355 (N.C. 2014) (legislative delegation of duties is dispositive that activity is governmental)
- Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334 (N.C. 2009) (governmental immunity is a complete defense shielding counties from suit)
- Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609 (N.C. 2016) (statutory waiver of immunity must be a plain, unmistakable legislative mandate)
- Bullard v. Wake Cnty., 221 N.C. App. 522 (N.C. Ct. App. 2012) (insurance policy language at issue did not waive county governmental immunity)