Thomas v. Washington , 136 N.C. App. 750 ( 2000 )

525 S.E.2d 839 (2000)

Kenya Paylor THOMAS, Plaintiff,
v.
Olando Elliot WASHINGTON and Darrell A. Campbell, Defendants.

No. COA99-442.

Court of Appeals of North Carolina.

March 7, 2000.

Maddox & Gorham, P.A., by Thomas Maddox, Jr., and J. Dale Shepherd, Greensboro, for plaintiff appellant.

Burton & Sue, L.L.P., by Gary K. Sue and Kurt A. Seeber, Greensboro, for the unnamed defendant North Carolina Farm Bureau Mutual Insurance Company appellee.

HORTON, Judge.

At the time of the accident from which this litigation arose, the plaintiff had a valid policy of automobile liability insurance issued by Farm Bureau. In addition to providing plaintiff with liability coverage, the policy also provided her with uninsured motorist coverage. However, in order for an uninsured motorist carrier to be bound by a judgment against the uninsured motorist, the insurer must be "served with copy of summons, complaint or other process in the action against the uninsured motorist by registered or certified mail, return receipt requested, or in any manner provided by law...." N.C. Gen.Stat. § 20-279.21(b)(3)(a) (1999). Once the insurer is served, it "shall be a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name." Id.

Here, the accident in question occurred on 31 March 1995. Thus, the three-year statute of limitations applicable to automobile negligence actions ran on 31 March 1998. Prior to the expiration of the limitations period, plaintiff instituted an action to recover for her personal injuries against the allegedly negligent driver and owner of the uninsured vehicle with which she collided. A summons was properly issued and both individual defendants were personally served with the summons and complaint. The record does not, however, reveal any attempt by plaintiff to serve a copy of the original summons and complaint on Farm Bureau, her uninsured motorist carrier within the statutory time limit. Instead, a series of alias or pluries summonses were issued and directed to the named defendants. Plaintiff states in her brief to this Court that the additional summonses were issued "to keep the action alive and in the event it became necessary to serve the uninsured motorist (UM) carrier."

Eventually, on 14 August 1998, a summons was issued and directed to "H. Julian Philpott, Jr., Registered Agent for North Carolina Farm Bureau Agency," and delivered to Mr. Philpott by certified mail, return receipt requested, on 17 August 1998. As a result of that delivery, the unnamed defendant filed an answer but also pled the statute of limitations in bar and moved to dismiss for insufficiency of process. The affidavit filed by the litigation supervisor for the unnamed defendant states that North Carolina Farm Bureau Agency is not a subsidiary of, nor affiliated with, North Carolina Farm Bureau Mutual Insurance Company. However, it does appear that H. Julian Philpott, Jr., serves as the registered agent for both entities. Process was first served on Mr. Philpott as registered agent for North Carolina Farm Bureau Mutual Insurance Company on 10 December 1998.

Plaintiff contends that, since her action against Farm Bureau arises from a contract of insurance, the three-year tort statute of limitations does not apply. Plaintiff argues that the three-year contract statute of limitations applies, but "the time for the [contract] limitations period to start is either when the UM carrier rejects payment or otherwise breaks the contract or else when the ... plaintiff knew or, by the exercise of reasonable diligence, should have known that the tortfeasor was uninsured." Although we have carefully considered plaintiff's arguments, we must disagree, as both our Supreme Court and this Court have rejected the application of a contracts statute of limitations in this situation.

In Brown v. Lumbermens Mut. Casualty Co., 285 N.C. 313, 204 S.E.2d 829 (1974), plaintiff sought to recover for the wrongful death of his intestate. Plaintiff did not institute an action against the allegedly uninsured motorist within two years, but did bring his action against the uninsured motorist carrier within three years of the accident. Our Supreme Court held in pertinent part that a plaintiff's right to recover against an insurer under an uninsured motorist endorsement is "derivative and conditional." Thus, said the Court, despite the contractual nature of the relationship between plaintiff and plaintiff's insurer, the "action is actually one for the tort allegedly committed by the uninsured motorist." Id. at 319, 204 S.E.2d at 834. The Supreme Court then applied the two-year statute of limitations applicable to wrongful death actions, rather than the three-year contract statute of limitations, and held that as plaintiff did not institute an action against the alleged tortfeasor within two years, his action against the insurer was not commenced in time.

Furthermore, this Court has recently made it clear that the three-year tort statute of limitations, which begins running on the date of an accident, also applies to the uninsured motorist carrier. Fulton v. Mickle, 134 N.C.App. 620, 518 S.E.2d 518 (1999) (accident occurred on 24 April 1994, and Court stated plaintiff had three years from that date [24 April 1997] to properly serve insurer).

Plaintiff argues, however, that she kept her action alive through the chain of alias or pluries summonses. Again, we cannot agree. The date an action is commenced becomes crucial when a statute of limitations is pled in bar of the action. Rule 3 of our Rules of Civil Procedure provides that a civil action is commenced when a complaint is filed with the court. N.C. Gen.Stat. § 1A-1, Rule 4(a) then provides that "[u]pon the filing of the complaint, summons shall be issued forthwith, and in any event within five days." To provide for the exigency in which a defendant cannot be served with the summons within the allotted time, Rule 4(d) provides in pertinent part that:

When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

....

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses....

N.C. Gen.Stat. § 1A-1, Rule 4(d) (1999).

Here, the provisions relating to issuance of alias or pluries summonses did not apply, as both individual defendants were served personally with the original summons. "The Rule 4(d) provisions for an endorsement on the original summons or issuance of an alias or pluries summons apply only when the original summons was not served, and their purpose is to keep the action alive until service can be made." Roshelli v. Sperry, 57 N.C.App. 305, 307, 291 S.E.2d 355, 356 (1982) (emphasis added).

The Financial Responsibility Act does not expressly require that separate process be issued for an uninsured motorist carrier, but does specifically require that a "copy" of the summons and complaint be served on the insurer. In addition to the methods of service of process on a corporation set out in Rule 4(j)(6), N.C. Gen.Stat. § 58-16.30 provides an alternative manner of service on insurance companies by providing that a copy of the process may be delivered to the Office of the Commissioner of Insurance, or mailed to the Commissioner, registered or certified mail, return receipt requested. Thus, it appears that the unnamed defendant was amenable to service of process at all times pertinent hereto.

Our appellate courts have required strict compliance with the statutes which provide for service of process on insurance companies in similar situations. For example, in Fulton v. Mickle this Court held that mailing a copy of the summons and complaint by regular mail to a claims examiner for the insurer did not comply with the requirement of Rule 4(j)(6)(c) of the Rules of Civil Procedure that a copy of the summons and complaint be mailed by "registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served...."

Finally, plaintiff argues that the trial court erred in considering the affidavit filed on behalf of the unnamed defendant and subsequently converting the hearing on Farm Bureau's motion to dismiss into a hearing on a motion for summary judgment. Plaintiff states that she did not have adequate time to prepare for a hearing on the motion for summary judgment, but does not support her brief argument by "reason or argument ... or authority cited[;]" thus this assignment of error is deemed abandoned. N.C.R.App. P. 28(b)(5).

We are aware that some of our sister states provide different limitation periods for claims against uninsured motorist carriers. However, we are not writing on a clean slate but are bound by the prior decisions of our Supreme Court and this Court. The judgment of the trial court is

Affirmed.

Judges MARTIN and TIMMONSGOODSON concur.