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NO. COA97-823 NORTH CAROLINA COURT OF APPEALS Filed: 15 December 1998 MICHAEL EDWARD KEPHART, by his Guardian Ad Litem, DOLLY TUTWILER, Plaintiffs, v. JAMES PENDERGRAPH, Sheriff of Mecklenburg County, THE COUNTY OF MECKLENBURG, and PEERLESS INSURANCE CO., Defendants. Appeal by defendants from order filed 20 March 1997 by Judge Ronald K. Payne in Mecklenburg County Superior Court. the Court of Appeals 18 February 1998. McNeely, Hefferon and Hefferon, by Paul Hefferon and Thomas J. Hefferon, for plaintiffs-appellees. Womble Carlyle Sandridge & Rice, by G. Michael Barnhill and W. Clark Goodman, for defendants-appellants. JOHN, Judge. Defendants appeal the trial court's denial of their motion for summary judgment grounded exclusively upon the defense of sovereign immunity. For the reasons set forth herein, we affirm Heard in

the order of the trial court. Detailed exposition of the factual background is unnecessary to determination of this appeal. In brief, plaintiff Michael

Edward Kephart was arrested 17 April 1995 for violation of probation and taken to the Mecklenburg County Intake Center (the Center). The Center is the initial processing facility for the During a prior incarceration

Mecklenburg County Jail (the Jail).

at the Jail, plaintiff had attempted suicide and been diagnosed

as depressed and suicidal. After being processed at the Center following his arrest, plaintiff was placed in a holding cell fully dressed and unmonitored. Plaintiff attempted to commit suicide by hanging He was discovered

himself from a ceiling grate by his necktie.

approximately ten minutes later, having suffered a severe anoxic brain injury. As a result, plaintiff is permanently disabled and

will require lifetime medical, nursing and custodial treatment and supervision. At the time of the foregoing incident, defendant Mecklenburg County (the County) had in place a Self-Funded Loss Program (the Program) and was covered by a Genesis Insurance Company insurance policy (the Policy). Effective 1 July 1993, the County and the

Division of Insurance and Risk Management (DIRM) of the City of Charlotte Finance Department entered into an Administration Agreement which established and implemented the Program. The

County delegated to DIRM the necessary authority to provide certain risk management services on behalf of the County in conjunction with the Program. Contained within the Program was a provision that [t]he establishment of this Program shall not be deemed to be a waiver of immunity through the purchase of insurance within the meaning of N.C. Gen. Stat.

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