Brown v. Lifford ( 2000 )

Judge Wynn

dissenting.

In this appeal, the majority concludes that because the defendant in this case was unable to make his insurer act in a timely fashion, he has shown “good cause” for not timely answering a complaint against him. I disagree and certify by dissent the following issue for our Supreme Court to consider upon appeal of right: May a defendant excuse his failure to timely answer a complaint by showing that he relied on his insurer to act on his behalf?

A motion to set aside an entry of default judgment is addressed to the sound discretion of the trial judge and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of discretion. See Coulbourn Lumber Company v. Grizzard, 51 N.C. App. 561, 563, 277 S.E.2d 95, 96 (1981). A ruling by the trial court on a discretionary matter should not be reversed unless the decision was arbitrary or lacked any basis in reason. And a “discretionary ruling by the trial judge should not be disturbed on appeal unless the appellate court is convinced . . . that the ruling probably amounted to a substantial miscarriage of justice.” Boyd v. L.G. DeWitt Trucking Co., 103 N.C. App. 396, 406, 405 S.E.2d 914, 921, review denied, 330 N.C. 193, 412 S.E.2d 53 (1991).

The present action was brought against the insured, not his insurer. If the insurer failed to timely fulfill an obligation that it owed to its insured, then the insured may have a separate cause of action against the insurer for damages that may arise from that failure. But that cause of action should not affect the action brought only against the insured. So any “mistake, inadvertence or excusable neglect” by the insurer may give rise to a complaint by the insured against his insurer, but the action against the insured should be unaffected by an insurer’s failure to cooperate with its insured. Thus, I would find that the trial court did not abuse his discretion in not setting aside the default judgment against the defendant.

Since our Courts have never directly addressed this issue, I certify by dissent this issue to our Supreme Court for a definitive pronouncement. N.C. Gen. Stat. § 7A-30(2) (1995).