Cop causes car crash, state claims 'soverign immunity' and refuses to pay damages -- 'It's not about right and wrong or what's fair. It's about what the law is'

Scott Sexton
Winston-Salem Journal
Jun. 28, 2010

In the first few stunned minutes after his 2001 Volkswagen Jetta was nearly totaled in a collision on May 27, Tom Macey really didn‘t know what to expect.

Nobody was injured -- his two sons were in the car with him -- but he knew this particular wreck was going to be a (Smokey) bear, as the other driver involved just happened to be wearing the uniform of the N.C. Highway Patrol.

Macey had done nothing wrong; the patrol sergeant sent to investigate indicated as much. The accident report all but verifies it: The driver of vehicle 1 initiated lights and siren but failed to yield to vehicle 2. Vehicle 2 collided with vehicle 1 in the westbound lane of U.S. 158.

"I thought for sure they were going to pay for it," Macey said.

It took a few weeks before the bitter truth sunk in. You really can't fight city hall, not when it writes the rule book and its bureaucrats can cower behind such terms as "sovereign immunity" and "gross negligence."

No sense of fairness

The accident report, written by Sgt. Eric Hoffman of the highway patrol, is pretty standard stuff. Other than the fact that one of the drivers was a trooper, it reads like any other property-damage accident report.

Macey was driving carefully, 45 in a 55 mph zone at 7:46 a.m. on U.S. 158 in Davie County when Trooper Kevin Leonard pulled a U-turn in front of him to go after a speeder. Macey crashed into the rear of Leonard's cruiser, and his Volkswagen was damaged extensively.

Measurements and statements were taken. A representative from the Travelers Insurance Co., the administrator of the state's collision coverage, called Macey that same day to ask a few questions.

Everything appeared to be in order for a quick resolution.

Then a state claims adjuster and the torts division of the state attorney general's office got involved. Ken Ferrell, the claims guy, called Macey to say that the state would not be accepting liability.

Stunned, Macey asked for some names and phone numbers. He wanted to see if he could find out who had made the ultimate decision not to pay. He wound up talking to Joe Dugdale, a lawyer in the attorney general's civil division.

"At one point he said ‘It's not about right and wrong or what's fair. It's about what the law is,'" Macey said. "I just said, ‘You should be ashamed of yourself,' and hung up."

When I called to ask where the buck really stopped, Ferrell stammered and referred me to a public-information office in Raleigh. Dugdale chose to ignore a detailed question left in a message with his assistant.

The funny thing is, I already knew the answer: A sense of fair play has no place with a lawyer who represents the state in a civil claim.

It's good to be the king

The English, in all their Middle Ages-era wisdom, came up with the idea that an individual couldn't sue the king, and the concept -- sovereign immunity -- wormed its way into our legal system.

In North Carolina, state and local governments are shielded from most negligence claims because their agents are acting for the public good. Or so the thinking goes.

When police are involved -- particularly in collisions -- the bar is set even higher. A person has to prove that the actions of an officer were "grossly negligent" before the government will even think about paying a claim.

So practically speaking, the trooper who turned in front of Macey would have had to have been spinning his hat on his head while knocking back a six-pack in order for the damage to be covered.

To be fair, the state's 1,800 troopers drove 44 million miles in 2009 in all kinds of weather and were involved in just 127 collisions.

The decision to hose Macey wasn't made by troopers.

"I can't really comment on those types of decisions," said Sgt. Jeff Gordon, a spokesman for the highway patrol. "I'll leave that for somebody else."












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