Powell v. Kent

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-708
Filed: 16 January 2018
Haywood County, No. 16 CVS 188
JOE WALLACE POWELL, JR., Plaintiff,
v.
ROBERT KENT and CYNTHIA YOUNG, Defendants.
Appeal by plaintiff from order entered 8 February 2017 by Judge Sharon
Tracey Barrett in Haywood County Superior Court. Heard in the Court of Appeals
13 December 2017.
Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-appellant.
Sizemore McGee, PLLC, by Charles E. McGee, for unnamed defendant-appellee
Mid-Continent Casualty Company.
ARROWOOD, Judge.
Joe Wallace Powell, Jr. (“plaintiff”) appeals from an order granting the
unnamed defendant, Mid-Continent Casualty Company’s (“Mid-Continent”) motion
for summary judgment. For the reasons stated herein, we affirm the order of the trial
court.
I. Background
On 4 February 2009, plaintiff filed a complaint for personal injury against
Robert Kent (“defendant Kent”) and Cynthia Young (“defendant Young”) in case
number 09 CVS 156. On the same date, summons were issued against defendants
POWELL V. KENT
Opinion of the Court
Kent and Young. Service of the summons and complaint on defendants Kent and
Young was made on 10 February 2009. On 24 February 2009, summons was issued
to Mid-Continent. Service of the summons and complaint as to Mid-Continent was
made through the Commissioner of Insurance on 31 March 2009. On 1 October 2013,
Mid-Continent filed a motion to dismiss. On 13 December 2013, an order of voluntary
dismissal without prejudice and with leave to re-file pursuant to Rule 41(a)(2) of the
North Carolina Rules of Civil Procedure was entered.
On 24 February 2014, plaintiff re-filed the action in case number 14 CVS
00168. On the same date, summonses were issued against defendant Kent, defendant
Young, and Mid-Continent. Service of the summons and complaint on defendants
Kent and Young was made on 3 March 2014. Service of the summons and complaint
as to Mid-Continent was made through the Commissioner of Insurance on
20 March 2014 and was received on 24 March 2014. On 2 November 2014, a notice
of voluntary dismissal without prejudice as to his claim against Mid-Continent was
filed and a stipulated notice of voluntary dismissal without prejudice was filed as to
the claims against defendants Kent and Young.
On 26 February 2016, plaintiff re-filed his complaint against defendants Kent
and Young in case number 16 CVS 188. Plaintiff alleged as follows: Plaintiff was the
owner of a 1997 Chevrolet truck, defendant Kent was the owner of a Chevrolet
Silverado truck, and defendant Young was the owner of a Ford F-350 truck.
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Opinion of the Court
Defendant Kent was in default in the payment of an automobile loan which was
secured by the Chevrolet Silverado truck. Plaintiff’s employer had contracted with
the financial institution which had made the secured loan to defendant Kent to
repossess the Chevrolet Silverado. Plaintiff was informed that the Chevrolet
Silverado was located on defendant Young’s property, and plaintiff, with his wife as
passenger, drove his 1997 Chevrolet truck to repossess the Chevrolet Silverado. After
taking possession of the Chevrolet Silverado, plaintiff’s truck was blocked by a cable
and another vehicle, leaving plaintiff unable to return to the public road.
Plaintiff further alleged that after he exited his truck, he saw defendant Kent,
driving defendant Young’s Ford F-350 truck, drive toward plaintiff’s direction.
Defendant Kent slammed on the brakes of the Ford F-350 truck, which began
“skidding and sliding in the [plaintiff’s] direction[.]” While the Ford F-350 was
coming to a sliding stop, defendant Kent opened the door in an attempt to exit the
truck. The Ford F-350 struck plaintiff “in a glancing blow[,]” causing plaintiff’s body
to be spun around and into the open driver’s side door. Defendant Kent then struck
both his Chevrolet Silverado and plaintiff’s 1997 Chevrolet truck with a metal bar,
causing substantial property damage to both vehicles. Defendant Kent removed
items from the Chevrolet Silverado and told plaintiff to leave the property. Defendant
Young remained in the vehicle throughout the entire incident. Plaintiff and his wife
then left the property in plaintiff’s truck, with the Chevrolet Silverado. Based on the
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foregoing, plaintiff alleged the following claims: negligence, personal injury, and
punitive damages as to defendants Kent and Young; uninsured/underinsured
coverage claim against Mid-Continent.
On 3 January 2017, Mid-Continent filed a motion for summary judgment
pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. Mid-Continent
argued that because defendants Kent and Young did not have an insurance policy to
provide liability coverage for the claims against them and because Mid-Continent had
an insurance policy covering plaintiff’s vehicle at the time of the incident, plaintiff’s
claims against Mid-Continent fell exclusively within the realm of uninsured motorist
(“UM”) claims, governed by N.C. Gen. Stat. § 20-279.21(b)(3). Mid-Continent, citing
several North Carolina cases, contended that the statute of limitations for UM claims
requires that UM insurance carriers be served with the summons and complaint no
later than three years after the date of injury. Because the automobile accident in
this case occurred on 8 February 2006 and Mid-Continent was not served with the
summons and complaint until more than six weeks after the expiration of the statute
of limitations, Mid-Continent argued that plaintiff’s claims against Mid-Continent
should be dismissed at summary judgment.
On 8 February 2017, the trial court entered an order granting Mid-Continent’s
motion for summary judgment and dismissing plaintiff’s claims against Mid-
Continent.
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Opinion of the Court
On 6 March 2017, plaintiff filed timely notice of appeal.
II. Discussion
On appeal, plaintiff’s sole argument is that the trial court erred by granting
summary judgment in favor of Mid-Continent and dismissing his claims. Specifically,
plaintiff contends that he was not required to obtain service upon the UM insurer
within three years of the date of injury to be within the statute of limitations time
period, that N.C. Gen. Stat. § 20-279.21(b)(3) did not require that a civil summons be
issued against the UM insurer, and that he timely served Mid-Continent in
accordance with N.C. Gen. Stat. § 20-279.21(b)(3). We disagree.
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that ‘there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting
Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)). “The evidence
produced by the parties is viewed in the light most favorable to the non-moving
party.” Hardin v. KCS Int’l., Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733 (2009)
(citation omitted).
N.C. Gen. Stat. § 20-279.21(b)(3)(a) provides that in order for a UM carrier to
be bound by a judgment against an uninsured motorist, the insurer must be “served
with copy of summons, complaint or other process in the action against the uninsured
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Opinion of the Court
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) (2015). Once the insurer has
been properly served, it becomes “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.
N.C. Gen. Stat. § 20-279.21(b)(3)(a) does not specify a time limitation for
service of the UM carrier. However, we are bound by our Court’s holding in Thomas
v. Washington, 136 N.C. App. 750, 525 S.E.2d 839, disc. review denied, 352 N.C. 598,
545 S.E.2d 223 (2000), which was more recently confirmed in Davis v. Urquiza, 233
N.C. App. 462, 757 S.E.2d 327 (2014). See In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.”).
In Thomas, the plaintiff was injured in an automobile accident on
31 March 1995, when she was struck by an uninsured vehicle. Thomas, 136 N.C.
App. at 751, 525 S.E.2d at 840. The plaintiff’s vehicle was insured by North Carolina
Farm Bureau Mutual Insurance Company (“Farm Bureau”) and her policy provided
UM coverage for the plaintiff. Id. While the plaintiff instituted an action against the
defendants within the three-year statute of limitations applicable to automobile
negligence actions, and properly served them with the summons and complaint, the
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plaintiff failed to properly serve Farm Bureau within the statutory time limit. Id. at
753, 525 S.E.2d at 841. The plaintiff attempted to argue that because her action
against Farm Bureau arose from a contract of insurance, the three-year statute of
limitations did not apply, and that her action was kept alive through alias and pluries
summonses. Id. at 754, 525 S.E.2d at 842. Our Court rejected the plaintiff’s
arguments, holding that “the three-year tort statute of limitations, which begins
running on the date of an accident, also applies to the uninsured motorist carrier[]”
and that alias or pluries summonses only extend the action upon defendants who are
not served, until such time as service can be made. Id. at 754-55, 525 S.E.2d at 842-
43. The trial court’s order granting the defendant’s motion for summary judgment
was affirmed. Id. at 756, 525 S.E.2d at 843.
In Davis, the plaintiffs filed suit against the defendant, an uninsured motorist,
seeking monetary damages for personal injuries resulting from a collision that
occurred on 15 July 2009. Davis, 233 N.C. App. at 462-63, 757 S.E.2d at 329. The
plaintiffs contended that Farm Bureau provided UM coverage for the accident in
accordance with N.C. Gen. Stat. § 20-279.21(b)(3). Id. at 463, 757 S.E.2d at 329. The
suit was filed 31 May 2012 and the defendant was served with a copy of the summons
and complaint on 29 July 2012. Id. at 462-63, 757 S.E.2d at 329. On 2 January 2013,
plaintiffs mailed a copy of the summons and complaint to the Commissioner of
Insurance, by certified mail, in order to serve Farm Bureau. It was received on
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7 January 2013. Id. at 463, 757 S.E.2d at 329. Our Court upheld the trial court’s
dismissal of the plaintiffs’ claim against Farm Bureau, stating that mere notice to the
UM carrier is insufficient under N.C. Gen. Stat. § 20-279.21(b)(3)(a); “the carrier must
be formally served with process.” Id. at 464, 757 S.E.2d at 330. Relying on the
holding in Thomas, our Court stated that “[t]he applicable statute of limitations for
personal injury in tort, and for service on a UM carrier, arising out of an automobile
accident is three years.” Id. at 466, 757 S.E.2d at 331 (citing N.C. Gen. Stat. § 1-
52(16) and Thomas). The Court reiterated that “[w]here a plaintiff seeks to bind an
uninsured motorist carrier to the result in a case, the carrier must be served by the
traditional means of service, within the limitations period.” Id. at 467, 757 S.E.2d at
332.
The holdings in Thomas and Davis appear to be inconsistent with other
applications of the statute of limitation which hold that cases are timely when filed
within the statute of limitation, with service of process permitted within the time
frames set forth in Rule 4 of the North Carolina Rules of Civil Procedure, even when
service is accomplished after the statute of limitation has expired. While we are
unable to discern any requirement in N.C. Gen. Stat. § 20-279.21(b)(3)(a) that
specifically requires in an uninsured motorist action that service of process also be
accomplished before the date the statute of limitation expires, we are bound by the
prior determinations in Thomas and Davis. Given this inconsistent application of the
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statutes of limitation for similarly situated litigants, this situation appears ripe
for determination or clarification by our Supreme Court or the Legislature.
In the present case, the automobile accident occurred on 8 February 2006. In
accordance with the decisions discussed above, the three-year statute of limitations
applicable to automobile negligence actions expired on 8 February 2009. Although
plaintiff instituted an action within the limitations period and properly served
defendants Kent and Young, Mid-Continent was not served with the summons and
complaint until 31 March 2009, outside of the three-year statute of limitations.
Accordingly, we are compelled to hold that the trial court did not err by granting
summary judgment in favor of Mid-Continent.
AFFIRMED.
Judges STROUD and ZACHARY concur.
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