Long v. Giles

472 S.E.2d 374 (1996)

Luther Youngs LONG and wife, Margaret D. Long, Plaintiffs,
v.
Patricia S. GILES, Executrix of the Estate of Sherrill Warren Giles and AEF, Inc., d/b/a Econo Lodge, Defendants.

No. COA95-591.

Court of Appeals of North Carolina.

July 2, 1996.

John H. Pike, Oxford, for appellants.

Maupin Taylor Ellis & Adams, P.A. by James A. Roberts, III and Richard N. Cook, Raleigh, for defendant-appellee AEF, Inc.

ARNOLD, Chief Judge.

It is well established that the entry of summary judgment for fewer than all defendants is not a final judgment and is not immediately appealable unless it affects a substantial right or is certified pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b) (1990). See Johnston County v. McCormick, 65 N.C.App. 63, 308 S.E.2d 872 (1983). Because the trial court did not certify the appeal pursuant to Rule 54(b), and we conclude that there is no substantial right involved, the appeal is premature.

A finding of liability against defendant AEF, as Mr. Giles's employer, is only possible if Mr. Giles's estate is found liable, and the injuries arose out of and in the course of his employment. In other words, defendant AEF's liability is derivative of Mr. Giles's liability, and the primary claim against the estate must first be determined before any claim against AEF is possible. Only if the court determines that plaintiffs may recover from the estate can their right to recover from defendant AEF be affected by the summary judgment.

If plaintiffs do not recover against Mr. Giles's estate, they cannot seek to recover against defendant AEF under a respondeat superior theory, and an appeal of summary judgment would be moot. Moreover, if summary judgment for defendant AEF is in error, plaintiffs can preserve their right to complain of the error by a duly entered exception, and may appeal after a successful judgment on the primary claims against Mr. Giles's estate. See Blue Ridge Sportcycle Co. v. Schroader, 53 N.C.App. 354, 357, 280 S.E.2d 799, 801 (1981).

We recognize that in Hooper v. C.M. Steel, Inc., 94 N.C.App. 567, 568-69, 380 S.E.2d 593, 594 (1989), this Court held that the plaintiffs, who sued both an employee and his employer for injuries received in an automobile accident, had a substantial right to have the liability of both defendants determined in the same trial to avoid the possibility of inconsistent verdicts. We did not address the issue of derivative liability in Hooper but instead applied the general concept that there is a substantial right to have the liability of both defendants determined in the same trial to avoid the possibility of inconsistent verdicts. We now consider more carefully the issue of derivative liability and the possibility of inconsistent verdicts in this case, and we conclude that no substantial right is involved. See generally Sportcycle, 53 N.C.App. 354, 280 S.E.2d 799.

Because the issue of defendant AEF's liability is derivative of a finding of liability against Mr. Giles's estate, there is no possibility of inconsistent verdicts, and no substantial right is involved that would make an appeal of summary judgment appropriate at this time.

Appeal dismissed.

WYNN and MARK D. MARTIN, JJ., concur.