Durham: "State Law Can't Touch Us"

In its most recent filing, the city of Durham claims absolute immunity for the portions of the civil suit dealing with North Carolina law.

In some intriguing legal reasoning, Durham’s attorneys concede:

A city may waive its governmental immunity under North Carolina law by purchasing liability insurance or participating in a local government risk pool that covers losses arising from tort claims for which a city would otherwise be immune.

And they note that

The City maintains three consecutive annual excess liability policies that may potentially be implicated by the time period of conduct alleged in the Amended Complaint.

But, they maintain,

By the express terms of each policy, the excess coverage is not triggered until the City has exhausted a self-insured retention that it is “legally obligated to pay.” Because the City cannot be “legally obligated to pay” losses arising from claims for which it has immunity, it cannot exhaust its self-insured retention with those losses. Thus, the excess coverage is not triggered, and the City’s immunity remains intact.

In other words, cities can purchase liability insurance whenever they desire to do so, and fall back on a claim that they still have absolute immunity because that liability insurance never should be allowed to kick in.

---------

On another matter, two significant North Carolina results from last Tuesday’s election.

First, in the Attorney General’s race, Roy Cooper not only won reelection, but topped the ticket, capturing 61.1 percent of the vote. The margin of victory came despite the last-minute retribution from the Wilmington Journal, which urged North Carolina voters to punish Cooper for failing to sustain charges against demonstrably innocent people.

Second, in the U.S. Senate race, North Carolina voters ousted GOP senator Elizabeth Dole. That’s the same Elizabeth Dole who not only refused to demand a DOJ investigation of Mike Nifong’s misconduct, but preposterously asserted ten weeks after Cooper exonerated the falsely accused players that the lacrosse case was still “an ongoing criminal investigation and pending judicial proceeding.”

Dole, by the way, stayed classy right to the end, closing her campaign with an ad leaving the false impression that her opponent, Kay Hagan, had cried out, “There is no God!”