Holley v. Hercules, Inc. , 86 N.C. App. 624 ( 1987 )

359 S.E.2d 47 (1987)

Elmer Wayne HOLLEY and wife, Carol Holley,
v.
HERCULES, INCORPORATED and American Petrofina, Incorporated, d/b/a Hercofina, and DeWitt McKoy.

No. 875SC1.

Court of Appeals of North Carolina.

August 18, 1987.

Shipman & Lea by H. Kenneth Stephens, II, Wilmington, for plaintiff-appellant Elmer Wayne Holley.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams and Charles D. Meier, Wilmington, for defendant-appellee Hercules, Inc.

PHILLIPS, Judge.

The only question presented by this appeal is whether the so-called claim or cause of action of Elmer Wayne Holley for punitive damages based upon the defendant's negligence in causing him to be personally injured is barred by the three-year statute of limitations, admittedly the applicable statute. G.S. § 1-46; G.S. § 1-52(16). It is not contended here that his action for compensatory damages is barred by that statute and there is no basis for doing so, though it was instituted more than three years after the injuries were allegedly sustained; for that part of this action virtually duplicates the first action which was commenced within the statutory period, and this action was brought within a year after that action was voluntarily dismissed without prejudice, as Rule 41(a)(1), N.C. Rules of Civil Procedure expressly permits. But since the so-called claim or cause of action for punitive damages was not asserted until this action was refiled, more than three years after the incident giving rise to the claim occurred, it is not quite as obvious that Rule 41(a)(1) extended the time for filing it as well.

The provisions of Rule 41(a)(1) that concern us state that unless the terms of the dismissal provide otherwise, and plaintiff's dismissal did not provide otherwise, that "a new action based on the same claim may be commenced within one year" after a voluntary dismissal without prejudice is taken. Defendant appellee, contending that the claim is barred and that Rule 41(a)(1) does not save it, points to Stanford v. Owens, 76 N.C.App. 284, 332 S.E.2d 730, disc. rev. denied, 314 N.C. 670, 336 S.E.2d 402 (1985) as controlling. In that case it was held that a cause of action for fraud, first asserted after the statute of limitations had otherwise run, was not saved by Rule 41(a)(1), though it was asserted in connection with a timely refiled action for negligent misrepresentation and the fraud claim was based on the same lot sale that the negligent misrepresentation claim was based on. But there is a significant, and we think decisive, difference between Stanford and this case. Fraud is a cause of action with distinctive elements that distinguish it from a cause of action based on negligent misrepresentation, and when the cause of action for fraud was first asserted in Stanford the statute of limitations had already run against it; whereas in this case only one cause of action is asserted, and it is the same cause of action that was asserted in the first case because there is no cause of action for punitive damages and no such cause is asserted herein. Causes of action are the vehicles by which legal rights and remedies are enforced, but no one has a legal right to punitive damages. Punitive damages are recoverable only in the discretion of the jury when the wrong is of an aggravated nature. Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). For punitive damages to be awarded in a personal injury action sounding in negligence, as this one, the defendant's wrong must amount to more than ordinary negligence; it must reach a higher level of misconduct, such as wilfulness, wantonness or recklessness indicating an indifference to or a disregard for the rights and safety of others. Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984); Hinson v. Dawson, supra; Huff v. Chrismon, 68 N.C.App. 525, 315 S.E.2d 711, disc. rev. denied, 311 N.C. 756, 321 S.E.2d 134 (1984); Robinson v. Duszynski, 36 N.C.App. 103, 243 S.E.2d 148 (1978); W. Prosser and W. Keeton, The Law of Torts Sec. 2, p. 9 (5th ed. 1984).

Furthermore, our courts have usually not required the pleader to specifically plead, by name, punitive damages; they have rather held that it is enough that the facts tending to establish the aggravated character of the wrong are alleged, and that characterizing a party's conduct as being wilful, or wanton, or reckless without alleging the specific acts relied upon are but conclusions that add nothing to the allegation. Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966); Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955). Thus, in this case, since plaintiff alleged in the first action that defendant's employees activated a pipeline close to where plaintiff was working without warning him, that charging a line created a dangerous situation, and before charging a line they were required to notify those in close proximity thereto, an adequate factual basis was stated for the jury finding that defendant acted with reckless disregard for plaintiff's safety and for awarding punitive damages if they concluded such damages should be awarded. That in the complaint in this action plaintiff went further and characterized the acts previously described as being reckless and indifferent to his safety added nothing of any consequence to the suit; certainly it did not add an enforceable claim or cause of action that the statute of limitations had run against.

Rule 41(a)(1) extends the time within which a party may refile suit after taking a voluntary dismissal when the refiled suit involves the same parties, rights and cause of action as in the first action. Goodson v. Lehmon, 225 N.C. 514, 35 S.E.2d 623 (1945); Whitehurst v. Virginia Dare Transportation Co., 19 N.C.App. 352, 198 S.E.2d 741 (1973). This refiled action now involves the same parties, the same rights and the same cause of action as before; and under the plain provisions of the rule no part of the action as refiled is barred by the statute of limitations.

Reversed.

COZORT and GREENE, JJ., concur.