Injured woman finds self caught in maze

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http://www.fayettevillenc.com/story.php?Template=region & Story=5263545

11-24-2002

Injured woman finds self caught in maze

By Todd Leskanic

Staff writer

WAGRAM - Kim lost the front half of her right foot in a car accident

on Feb. 1. That morning, she and her son Reese were driving the

family's Mercury on U.S. 401 in Scotland County.

Staff photo by Burnham

Kim was injured in an auto accident in which she lost her right foot.

With her is her son, Reese.

As they were passing through an intersection, a Scotland County schools

truck ran a stop sign and plowed into the passenger side of their car. The

car rolled three times before coming to rest in the median. 's foot was

crushed as the car tumbled.

She was taken to Duke University Medical Center, where she spent seven days.

She spent seven weeks at home recovering.

With half her foot went 's ability to walk without pain or without a

limp. She compared losing her foot to losing a member of her family.

's medical expenses are estimated to be nearly $100,000. She is trying

to get compensation, but the Scotland County school board won't pay. It has

claimed governmental immunity.

's case highlights the question of whether liability coverage provided

by the N.C. School Board Trust is the same thing as insurance. The

distinction is technical, but important.

If a school system has liability insurance, an injured person can seek to

recover damages from it. But if the school system is not insured, the system

is protected against claims by governmental immunity.

's insurance has paid 80 percent of her medical bills, but the

insurance companies expect to be reimbursed.

Collection companies write often, she said.

" It's awful,'' she said. " My son and I are both seeing a psychiatrist. "

Lawsuit filed

and her son filed a lawsuit against the Scotland County Board of

Education in April, saying the driver of the truck, Edmon Denson,

was negligent and caused the accident.

Denson works as a mechanic for the schools. According to his deposition, he

was hired as a truck driver, but he was never formally trained as a

mechanic.

In the deposition, Denson said he repaired the brakes on the truck the day

before the collision. He later said he didn't fill the master cylinder with

brake fluid after the repair. Denson said he thought there was enough brake

fluid in the cylinder.

According to the deposition, Denson was test-driving the truck the next

morning when the accident happened. He said the brakes failed when he tried

to stop at the intersection.

and her son were right in the truck's path.

" He didn't hit in the front or the back,'' said. " He hit directly in

the center of my door. He broke the strike plate and I was literally hanging

outside the door. It was a miracle I wasn't injured more than I was. "

Immunity laws

Under the doctrine of immunity, government agencies cannot be held liable

for the actions of employees who are doing things that are within the scope

of their duties.

A state statute allows governmental organizations to claim immunity. Bob

Joyce, the assistant director of the N.C. Institute of Government, said

immunity laws protect the taxpayers. He said huge claims could put

governments out of business, which would only hurt citizens.

" Any other entity can go bankrupt and go out of business,'' he said. " The

government can't do that. It's got to keep going on. "

A governmental body waives its immunity if it purchases liability insurance.

Joyce said many governmental agencies purchase insurance despite the

immunity doctrine because immunity does not apply in all situations.

Agencies also purchase insurance out of a feeling of responsibility to

citizens, he said.

The Scotland school board has liability coverage through the N.C. School

Board Trust. But technically, the trust does not provide " insurance, " so the

board can claim immunity.

Buck , chairman of the Scotland County school board, said the board

stopped buying commercial insurance recently because of the rising costs.

Instead, the board now pays the trust for what a trust lawyer called

" risk-management protection. "

Donna Lynch, a lawyer for the N.C. School Boards Association, said about 75

county school boards have liability coverage through the trust. The school

boards, including Scotland and Hoke, make a contribution to the trust. Lynch

specified that the payment is not a premium.

" This is a member-funded program and the terminology confuses people,'' she

said.

The Cumberland County schools have chosen to pay the higher costs of

commercial insurance. The schools are insured through Zurich Insurance Co.

at a cost of $269,925 a year. " The Zurich coverage was more in line with the

insurance needs of our school system, " said Kathy Dickson, a spokeswoman for

the Cumberland schools.

Fayetteville lawyer Britton said the cheaper coverage offered by the

trust sounds good to taxpayers.

" But when a citizen gets injured and is seeking compensation, there's no

means of recourse " for that citizen, she said.

The question is whether the trust's coverage constitutes insurance. 's

lawyer, Levine, believes it does.

" The N.C. School Board Trust used to be the N.C. School Board Insurance

Trust,'' he said. " But in 1996, a case came down where a judge looked at it

and said it looks like an insurance policy. "

A Swain County judge made a similar ruling last November. In a case

involving the Swain County Board of Education, Superior Court Judge J.

Hyatt ruled that the trust is insurance and therefore is liable for

up to $1 million per claim.

The Swain County case is similar to 's. The plaintiff, Sharon Lucas,

was injured in a fall at the Swain County High School football stadium in

1999. Swain County is covered by the N.C. School Board Trust and the school

board has asserted immunity. The Court of Appeals heard Lucas' case in

October and is expected to rule in three to four months.

If Lucas wins her appeal, her lawyer, Ridenour said, he expects the

case to be appealed to the state Supreme Court.

Meanwhile, Lucas' medical bills are more than $94,000, and Ridenour said

Lucas is disabled. She shattered her elbow and has since had seven

surgeries. She hasn't worked since the day of the accident, Ridenour said.

" If people aren't being insured, why are they sending money to the trust?''

Ridenour said. " Swain County pays $10,000 and that's one of the smallest

premiums paid. What a great scam. "

Lynch, the School Boards Association lawyer, said she isn't sure how a

ruling against the Swain County schools would affect the school board trust.

" It would mean the immunity defense would no longer be available,'' she

said. " I don't know how that would affect the overall structure of the

trust. "

Statewide effects

A decision affecting the immunity defense could have effects statewide. In

Robeson County, for example, lawsuits over an E. coli outbreak and over

health problems associated with mold have been dismissed recently because

the school system cited its immunity from damages.

Levine said he is hopeful the Swain County ruling will change the immunity

laws and give and her son some way to seek compensation.

But said the legal wrangling has not helped her and her family pay

medical bills and recover a normal life. Before the accident, she was an

avid walker and had lost more than 50 pounds. Now, the nub that used to be

her right foot hurts just to walk across the living room. Over time, 's

sorrow has turned into frustration and anger.

" My foot is gone and my family has suffered,'' she said. " We're going to

continue to suffer because our lives are never going to be the same. "

Staff writer Todd Leskanic can be reached at leskanict@... or

486-3572.