Oakley v. Thomas , 112 N.C. App. 130 ( 1993 )

434 S.E.2d 663 (1993)

Peggy W. OAKLEY, Administratrix of the Estate of Adrian Eugene Oakley, Plaintiff/Appellant,
v.
Danny Joe THOMAS, Defendant/Appellee.

No. 9218SC935.

Court of Appeals of North Carolina.

September 21, 1993.

Stern, Graham & Klepfer by Donald T. Bogan, and Hodgman, Elam, Gordon & Churchill by John C. Elam, Greensboro, for plaintiff-appellant.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. E.H. Bunting, Jr., Raleigh, for defendant-appellee.

Teague, Rotenstreich and Stanaland by Stephen G. Teague, Greensboro, for unnamed defendant Harleysville Mut. Ins. Co.

EAGLES, Judge.

I.

Plaintiff contends that her "recovery against the Randolph County Board of Education pursuant to the North Carolina Tort Claims Act does not bar Oakley's [plaintiff's] claims against the individual bus driver who caused the wreck, or Oakley's UM/UIM carrier for damages in excess of the maximum recovery allowable under the Tort Claims Act." We agree.

The North Carolina Industrial Commission has "jurisdiction to hear and determine tort claims against any county board of education ... which claims arise as a result of ... any alleged negligent act or omission of the driver of a public school bus..." G.S. 143-300.1(a). Here, plaintiff's damages may exceed the maximum award of $100,000.00 available under the Tort Claims Act. G.S. 143-299.2. The issue is whether plaintiff can recover the remaining damages in excess of $100,000.00 resulting from decedent's death from a non-governmental source, namely decedent's insurance carrier.

This case is essentially a contract dispute between decedent's estate and Harleysville Insurance. Plaintiff may have suffered damages in excess of the maximum recovery allowed against the board of education by law, and the limitation of that recovery may leave plaintiff with unsatisfied actual damages. By offering coverage for decedent in the event of damage arising from the acts of a tortfeasor who could not pay for the damages, defendant Harleysville Insurance accepted premiums in exchange for a commitment to provide payment for those unsatisfied damages. See N.C. Farm Bureau Mut. Ins. Co. v. Knudsen, 109 N.C.App. 114, 117, 426 S.E.2d 88, 90, disc. rev. denied, 334 N.C. 165, 432 S.E.2d 365 (1993) (holding that a public school bus is an underinsured motor vehicle as "the Tort Claims Act serves the same function as liability insurance for school buses"). Accordingly, we reverse the trial court's entry of summary judgment against plaintiff. Accord Karlson v. City of Oklahoma City, 711 P.2d 72, 74-75 (Okl.1985) (holding that "in a situation where the liability of a tortfeasor is limited by the Political Subdivisions Tort Claims Act, to an amount which will not compensate an insured for all his proven losses suffered in an automobile accident, that insured may recover from his insurer through the uninsured/underinsured motorist provisions of his automobile liability insurance, according to the terms thereof"); see also Gabriel et al v. Minn. Mut. Fire & Casualty, 506 N.W.2d 73 (N.D.1993); Michigan Millers Mut. Ins. Co. v. Bourke, 607 So. 2d 418 (Fla.1992).

However, we note that in the Industrial Commission action, only the board of education stipulated that plaintiff's damages were in excess of $100,000.00: Mr. Thomas and Harleysville Insurance (defendants in 90-CvS-11165) were not parties to the Industrial Commission action and did not stipulate as to plaintiff's damages. See G.S. 143-300.1(a) (North Carolina Industrial Commission has jurisdiction to hear and determine tort claims against a county board of education arising as a result of an alleged negligent act or omission of the driver of a public school bus); G.S. 143-300.1(d) ("The Attorney General may defend any civil action which may be brought against the driver of a public school bus..." and "... is authorized to pay any judgment rendered in such civil action not to exceed the limit provided under the Tort Claims Act"). Accordingly, only if plaintiff is able to prove at trial that plaintiff's total damages are in excess of $100,000.00 (the amount already recovered from the Industrial Commission action) will plaintiff be entitled to an additional award as a result of this action (90-CvS-11165).

II.

Plaintiff argues that "[t]he bus driver and the UM/UIM carrier are collaterally estopped from re-litigating liability issues previously decided against them in a tort claims action against the owner of the bus arising from the same collision." This Court's review is limited to the assignments of error set forth in the record on appeal. N.C.R.App.P. 10(a). This contention was not set forth in plaintiff's assignments of error. Accordingly, we do not address this argument since it falls outside the scope of review on appeal. Id. Additionally, we note that defendants have not cross-appealed.

III.

For the reasons stated, we reverse the trial court's entry of summary judgment against plaintiff and remand the cause for further proceedings.

Reversed and remanded.

GREENE and LEWIS, JJ., concur.