State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_115C > GS_115C-42

§ 115C‑42. Liability insurance and immunity.

Any local board of education, by securing liability insurance ashereinafter provided, is hereby authorized and empowered to waive itsgovernmental immunity from liability for damage by reason of death or injury toperson or property caused by the negligence or tort of any agent or employee ofsuch board of education when acting within the scope of his authority or withinthe course of his employment. Such immunity shall be deemed to have been waivedby the act of obtaining such insurance, but such immunity is waived only to theextent that said board of education is indemnified by insurance for suchnegligence or tort.

Any contract of insurance purchased pursuant to this section shall beissued by a company or corporation duly licensed and authorized to executeinsurance contracts in this State or by a qualified insurer as determined bythe Department of Insurance and shall by its terms adequately insure the localboard of education against liability for damages by reason of death or injuryto person or property proximately caused by the negligent act or torts of theagents and employees of said board of education or the agents and employees ofa particular school in a local administrative unit when acting within the scopeof their authority. The local board of education shall determine whatliabilities and what officers, agents and employees shall be covered by anyinsurance purchased pursuant to this section. Any company or corporation whichenters into a contract of insurance as above described with a local board ofeducation, by such act waives any defense based upon the governmental immunityof such local board of education.

Every local board of education in this State is authorized andempowered to pay as a necessary expense the lawful premiums for such insurance.

Any person sustaining damages, or in case of death, his personalrepresentative may sue a local board of education insured under this sectionfor the recovery of such damages in any court of competent jurisdiction in thisState, but only in the county of such board of education; and it shall be nodefense to any such action that the negligence or tort complained of was inpursuance of governmental, municipal or discretionary function of such local boardof education if, and to the extent, such local board of education has insurancecoverage as provided by this section.

Except as hereinbefore expressly provided, nothing in this sectionshall be construed to deprive any local board of education of any defensewhatsoever to any such action for damages or to restrict, limit, or otherwiseaffect any such defense which said board of education may have at common law orby virtue of any statute; and nothing in this section shall be construed torelieve any person sustaining damages or any personal representative of anydecedent from any duty to give notice of such claim to said local board ofeducation or to commence any civil action for the recovery of damages withinthe applicable period of time prescribed or limited by statute.

A local board of education may incur liability pursuant to this sectiononly with respect to a claim arising after such board of education has procuredliability insurance pursuant to this section and during the time when suchinsurance is in force.

No part of the pleadings which relate to or allege facts as to adefendant's insurance against liability shall be read or mentioned in thepresence of the trial jury in any action brought pursuant to this section. Suchliability shall not attach unless the plaintiff shall waive the right to haveall issues of law or fact relating to insurance in such an action determined bya jury and such issues shall be heard and determined by the judge withoutresort to a jury and the jury shall be absent during any motions, arguments,testimony or announcement of findings of fact or conclusions of law withrespect thereto unless the defendant shall request a jury trial thereon:Provided, that this section shall not apply to claims for damages caused by thenegligent acts or torts of public school bus, or school  transportation servicevehicle drivers, while driving school buses and school transportation servicevehicles when the operation of such school buses and service vehicles is paidfrom the State Public School Fund. (1955, c. 1256; 1957, c. 685; 1959, c. 573, s. 2; 1961, c. 1102, s. 4;1977, 2nd Sess., c. 1280, s. 3; 1981, c. 423, s. 1; 1985, c. 527.)