Severance v. Ford Motor Co. , 98 N.C. App. 330 ( 1990 )

390 S.E.2d 704 (1990) 98 N.C. App. 330

Mark D. SEVERANCE, Administrator of the Estate of Kyle David Severance, Plaintiff,
v.
FORD MOTOR COMPANY, Ford Motor Credit Company, and Dick Parker Ford, Inc., Defendants.

No. 893SC681.

Court of Appeals of North Carolina.

May 1, 1990.

Barker, Dunn & Mills by Donald J. Dunn, New Bern, for plaintiff-appellant.

Yates, Fleishman, McLamb & Weyher by Joseph W. Yates, III, Raleigh, for defendants-appellees Ford Motor Co. and Ford Motor Credit Co.

Wheatly, Wheatly, Nobles, Weeks & Wainwright, P.A. by C.R. Wheatly, Jr. and Stevenson L. Weeks, Beaufort, for defendant-appellee Dick Parker Ford, Inc.

ORR, Judge.

The dispositive issue on appeal is whether the trial court erred in granting summary judgment to defendants. For the reasons set forth below, we affirm the trial court's order.

Under N.C.Gen.Stat. § 1A-1, Rule 56(c), a motion for summary judgment "shall be rendered ... if the pleadings, depositions,... affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." This remedy permits the trial court to decide whether a genuine issue of material fact exists; it does not allow the court to decide an issue of fact. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C.App. 533, 535, 303 S.E.2d 358, 360 (1983) (citations omitted). In a summary judgment proceeding, the trial court must view all evidence in the light most favorable to the non-moving party. Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 258, 335 S.E.2d 79, 83 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). Summary judgment is generally inappropriate in negligence cases, unless it appears that plaintiff cannot recover even if the facts plaintiff alleged are true. Stoltz v. Burton, 69 N.C.App. 231, 233, 316 S.E.2d 646, 647 (1984) (citations omitted).

In the case before us, the trial court granted summary judgment to defendants on the ground that the consent judgment in the prior civil action of Severance v. Severance constituted a satisfaction of judgment under N.C.Gen.Stat. § 1B-3(e) (1983). We agree.

Under § 1B-3(e):

The recovery of judgment against one tort-feasor for the injury or wrongful death does not of itself discharge the other tort-feasors from liability to the claimant. The satisfaction of the judgment discharges the other tort-feasors from liability to the claimant for the same injury or wrongful death, but does not impair any right of contribution. Provided, however, that a consent judgment in a civil action brought on behalf of a minor, or other person under disability, for the sole purpose of obtaining court approval of a settlement between the injured minor or other person under disability and one of two or more tort-feasors, shall not be deemed to be a judgment as that term is used herein, but shall be treated as a release or covenant not to sue as those terms are used in G.S. 1B-4 unless the judgment shall specifically provide otherwise.

This statute permits a claimant to obtain judgments against any and all joint tort-feasors for a single injury or wrongful death, but the claimant may have only one satisfaction. Ipock v. Gilmore, 73 N.C. App. 182, 186, 326 S.E.2d 271, 275, disc. review denied, 314 N.C. 116, 332 S.E.2d 481 (1985) (citation omitted).

N.C.Gen.Stat. § 1B-3(e) allows one exception to the above rule. "[A] consent judgment in a civil action brought on behalf of a minor or other [disabled person] for the sole purpose of gaining court approval of a settlement between the injured minor ... and one of two or more tort-feasors,..." is not a judgment under N.C. Gen.Stat. § 1B-3(e), but is instead a release or covenant not to sue under § 1B-4, unless it otherwise specifically provides.

In the case sub judice, the consent judgment in the case of Severance v. Severance did not specify that it was a release or covenant not to sue under § 1B-4, or that it was anything other than a consent judgment "in full settlement, satisfaction, release, and discharge of all matters in this action,...."

Moreover, there was no minor plaintiff or injured minor as required by the exception to § 1B-3(e). The plaintiff in the case of Severance v. Severance and the case sub judice is the administrator of the estate of the minor decedent. As the administrator of his son's estate, he brings the action for wrongful death on behalf of the beneficiaries of his son's estate, not on behalf of his deceased son.

An administrator has the right to negotiate and compromise a cause of action for wrongful death. N.C.Gen.Stat. § 28A-13-3(a)(23) (1984). See Bowling v. Combs, 60 N.C.App. 234, 298 S.E.2d 754, disc. review denied, 307 N.C. 696, 301 S.E.2d 389 (1983). As a result of a successful wrongful death action, any proceeds pass to the beneficiaries of the estate, except for funeral, burial, hospital and medical expenses. § 28A-13-3(a)(23).

Because plaintiff did not bring the previous wrongful death action of Severance v. Severance on behalf of an injured minor or minor plaintiff as required by § 1B-3(e), and the consent judgment did not specify that it was anything other than a judgment, § 1B-4 does not apply to the case before us. Therefore, we hold that under § 1B-3(e), the judgment entered in the case of Severance v. Severance has been fully satisfied by the insurance company of Denise D. Severance, discharging the defendants in the present case from liability for the same injury or wrongful death.

Because we hold that plaintiff is barred from recovery as a matter of law by § 1B-3(e), we do not reach the remaining issues on appeal.

Affirmed.

PHILLIPS and EAGLES, JJ., concur.