Rolling Fashion Mart, Inc. v. Mainor , 80 N.C. App. 213 ( 1986 )

341 S.E.2d 61 (1986)

ROLLING FASHION MART, INC.
v.
Theresa Gail MAINOR.

No. 851SC855.

Court of Appeals of North Carolina.

April 1, 1986.

Wyatt, Early, Harris, Wheeler & Hauser by Kim R. Bauman, High Point, for defendant-appellee.

MARTIN, Judge.

Plaintiff brings forward two assignments of error; the admission into evidence of the affidavit of Southern Home Insurance Company's claims adjuster, Mr. Payne, and the entry of summary judgment in favor of defendant. We conclude that the court did not abuse its discretion in admitting the affidavit and that summary judgment was appropriately granted.

Plaintiff's first argument is that the trial court erred in admitting Mr. Payne's affidavit because the affidavit was filed by defendant on the day of the hearing. We do not agree. Although affidavits in support of a motion for summary judgment are required by G.S. 1A-1, Rules 6(d) and 56(c) to be filed and served with the motion, Rule 56(e) grants to the trial judge wide discretion to permit further affidavits to supplement those which have already been served. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C.App. 129, 203 S.E.2d 421 (1974). Mr. Payne's affidavit was clearly supplemental in that it did no more than explain the transactions referred to in the earlier affidavits filed by the parties and provide copies of the documents involved in those transactions. We discern no abuse of judicial discretion in the admission or consideration of Mr. Payne's affidavit.

By its second assignment of error, plaintiff contends that the trial court erred in granting summary judgment for defendant because there are genuine issues of fact. Summary judgment is appropriate only where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). A defending party is entitled to summary judgment if he can show that no claim for relief exists or that the claimant cannot overcome an affirmative defense to the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

In its complaint, plaintiff claims damages for loss of corporate earnings, loss of goodwill, and the value of merchandise which it has been unable to sell due to the injuries sustained by its president and sole employee. The basis for the claim is stated in the affidavit submitted by plaintiff's president, Mr. Jones:

As a result of my injuries, I was and am still unable to carry on the business of Rolling Fashion Mart, Inc. Therefore Rolling Fashions [sic] Mart, Inc., ended up with over $7,000.00 worth of clothing and other merchandise, which due to my inability to get out and sell these items, are just sitting around, and, quite naturally, the corporation has lost all of its customers because of my inability to get out and sell them merchandise. It is for those losses, as opposed to any personal injury done to myself, that Rolling Fashion Mart, Inc. has brought this lawsuit.

Plaintiff, citing Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894 (1963), contends that it is entitled to recover these damages allegedly sustained by it due to injuries negligently inflicted upon its sole employee. Plaintiff misconstrues the holding in Smith. In that case, the injured party sought to recover, as a part of his damages for personal injury, lost profits from the business owned and operated by him. The Court held that "where the business is small and the income which it produces is principally due to the personal services and attention of the owner," evidence of the earnings and profits of the business is admissible as evidence of the owner's diminished earning capacity, an element of damages recoverable by him for his personal injury. Id. at 96, 131 S.E.2d at 897. The Court declined, however, to permit recovery for "loss of business" as special damages. Thus, under Smith, evidence of plaintiff's lost earnings would be admissible to support the claim of its president and sole employee, O'Dell Jones, for damages due to diminished earning capacity, properly recoverable by him as an element of his personal injury claim. Mr. Jones has, according to all of the evidence, entered into a settlement of his personal injury claim and has released defendant from further liability with respect thereto.

Plaintiff, however, seeks in the present action to recover for its corporate losses occasioned by the incapacity of Mr. Jones as a result of injuries which he sustained in the accident. Although we have found no North Carolina cases dealing with such a claim, the great weight of modern authority holds that an employer may not maintain an action to recover damages from a tortfeasor because of negligent injury to an employee. See Ireland Elec. Corp. v. Georgia Highway Express, Inc., 166 Ga.App. 150, 303 S.E.2d 497 (1983); Hartridge v. State Farm Mut. Auto. Ins. Co., 86 Wis. 2d 1, 271 N.W.2d 598, 4 A.L.R. 4th 495 (1978); Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 (Mo.Ct.App.1976); Steele v. J and S Metals, Inc., 32 Conn. Supp. 17, 335 A.2d 629 (1974); Ferguson v. Green Island Contracting Corp., 36 N.Y.2d 742, 368 N.Y.S.2d 163, 328 N.E.2d 792 (1975); Nemo Found., Inc. v. The New River Co., 155 W.Va. 149, 181 S.E.2d 687 (1971); Annot., 4 A.L.R. 4th 504 (1981), Annot., 74 A.L.R. 3d 1129 (1976). Since there exists no right to recover the damages sought by plaintiff, the trial court's entry of summary judgment, dismissing plaintiff's claim for lost profits, loss of goodwill and the value of its unsold merchandise, was correct.

The only additional claim stated by plaintiff was for property damage to its motor vehicle. It alleged that damage to the vehicle amounted to $2,000.00. The undisputed evidence before the trial court disclosed that plaintiff was paid the sum of $2,600.00 for damage to its vehicle by its collision insurer, after subtraction of the $100.00 deductible provided by the collision insurance policy. In return, plaintiff assigned its insurer "each and all claims and demands... arising from or connected with such loss or damage (and the said Company is hereby subrogated in the place of and to the claims and demands of the undersigned...) to the extent of the amount above named, and the said Company is hereby authorized and empowered to sue, compromise, and settle in my name or otherwise to the extent of the money paid as aforesaid." Thereafter, plaintiff's insurer submitted the property damage claim to arbitration with defendant's insurer and was awarded $2,400.00. Plaintiff's insurer accepted payment of that amount in "full settlement" of the claim for damages to the vehicle.

In North Carolina, where insured property is damaged by the negligence of another, a single indivisible claim for the damage accrues against the tortfeasor. Security Fire & Indem. Co. v. Barnhardt, 267 N.C. 302, 148 S.E.2d 117 (1966). The claim accrues in favor of the owner, through whom the insurer, upon payment of the insurance, must enforce its subrogation rights, because the insured owner has legal title to the right of action against the tortfeasor. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231 (1952). In this case, however, plaintiff assigned to Southern Home Insurance Company its right of action, against defendant for damage to its vehicle, together with the full authority to resolve the claim as it saw fit. In so doing, plaintiff divested itself of legal title to the claim. The insurer chose to arbitrate the claim with defendant's liability carrier and to accept the arbitration award; plaintiff is bound by that resolution. Plaintiff argues, however, that it is entitled to recover at least its $100.00 deductible. We disagree. The property damage claim is a single indivisible claim, and cannot be partially assigned. Plaintiff assigned its entire claim for damage to its vehicle; that claim has been resolved by arbitration and award. To hold otherwise would subject defendant to multiple actions for the same wrong and would sanction the splitting of an indivisible claim for relief.

Affirmed.

EAGLES and COZORT, JJ., concur.