Selective Insurance v. Mid-Carolina Insulation Co. , 126 N.C. App. 217 ( 1997 )

484 S.E.2d 443 (1997)

SELECTIVE INSURANCE COMPANY, Plaintiff,
v.
MID-CAROLINA INSULATION COMPANY, INC., Althea Thomas Boggs, Administratrix of the Estate of Richard W. Boggs and Joseph Kelly Thomas, Jr., Defendants.

No. COA96-696.

Court of Appeals of North Carolina.

May 6, 1997.

Baucom, Claytor, Benton, Morgan, Wood & White, P.A. by James F. Wood III, Charlotte, for plaintiff-appellee.

Jones and Jones, P.L.L.C. by Robert H. Jones, Dunn, for defendant appellant Althea Thomas Boggs.

ARNOLD, Chief Judge.

Defendant Althea Boggs argues that the trial court erred in granting summary judgment in favor of Selective Insurance Company and finding that Selective has no duty to defend or indemnify Joseph Thomas. We decline to address this case on the merits, however, because the appeal must be dismissed for lack of jurisdiction. "This Court may raise the question of subject matter jurisdiction on its own motion, even if it was not argued by the parties in their briefs." Ramsey v. Interstate Insurors, Inc., 89 N.C.App. 98, 102, 365 S.E.2d 172, 175, disc. review denied, 322 N.C. 607, 370 S.E.2d 248 (1988).

Only a "party aggrieved" has a right to appeal. N.C. Gen.Stat. § 1-271 (1996). A "party aggrieved" is one whose legal rights have been denied or directly and injuriously affected by the action of the trial court. See Applications for Reassignment of Pupils, 247 N.C. 413, 421, 101 S.E.2d 359, 366 (1958); Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434 (1939); see also U.S. Fidelity and Guaranty Co. v. Scott, 124 N.C.App. 224, 226, 476 S.E.2d 404, 406 (1996) (holding that a party does not automatically qualify as a "real party in interest" merely because it has been named as a defendant in a declaratory judgment action); Reliance Insurance Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206, disc. review denied, 293 N.C. 159, 236 S.E.2d 704 (1977) (same).

In this case, defendant Boggs's legal rights have not been denied, nor directly and injuriously affected by entry of summary judgment in favor of Selective. An injured party who obtains a judgment against the insured has no greater rights against the insurer than the insured. See Davenport v. Travelers Indemnity Co., 283 N.C. 234, 238, 195 S.E.2d 529, 532 (1973). Logic dictates, then, that an injured party who has not yet obtained a judgment against the insured has no greater rights against the insurer than the insured. Thomas not only failed to assert any argument against Selective below, leading to an entry of default against him, but he also failed to appeal the summary judgment in favor of Selective, and thus has asserted no rights against the insurer. "Where, as here, the aggrieved real party in interest [defendant Thomas] is content, an appealing party has at most only an incidental interest in the subject matter of the litigation and will be affected only indirectly by the judgment complained of." State Farm Mut. Auto. Insurance Co. v. Ingram, 288 N.C. 381, 385, 218 S.E.2d 364, 368 (1975) (citing In re Mitchell, 220 N.C. 65, 67, 16 S.E.2d 476, 477 (1941)); see also U.S. Fidelity and Guaranty Co., 124 N.C.App. 224, 476 S.E.2d 404; Walker, 33 N.C.App. 15, 234 S.E.2d 206.

Moreover, when an injured person is not a party to an insurance liability indemnity contract, and the contract contains no agreement that the insurance shall inure to the benefit of the person injured, the insurance is a matter wholly between the insurer and the insured, and the injured person has no legal or equitable interest. Clark v. W.R. Bonsal & Co., 157 N.C. 270, 276, 72 S.E. 954, 956-57 (1911). No claim against an insurer can be made by the injured "unless and until ``execution against the [insured] is returned unsatisfied' in an action brought against him. This, in terms, is made a condition precedent to the right of the injured party to maintain an action against the indemnity company...." Small v. Morrison, 185 N.C. 577, 579, 118 S.E. 12, 12 (1923).

By appealing the summary judgment in favor of Selective, defendant Boggs is in effect attempting to make a claim directly against the insurer, prior to any judgment against defendant Thomas. This she cannot do. Defendant Boggs has no legal interest in the liability insurance policy in question unless and until she obtains a judgment against defendant Thomas in the underlying negligence suit, and execution of that judgment is returned unsatisfied. See id.

Because we find that Boggs's legal rights have not been denied or directly and injuriously affected by the action of the trial court, she is not a "party aggrieved" and has no standing to bring this appeal. The appeal must therefore be dismissed.

Dismissed.

JOHN C. MARTIN and TIMMONS-GOODSON, JJ., concur.