DocketNumber: I.C. NO. TA-20980.
Judges: <center> ORDER for the Full Commission by LAURA KRANIFELD MAVRETIC, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 2/4/2011
Status: Precedential
Modified Date: 7/6/2016
Plaintiff filed his Affidavit on November 20, 2008, alleging that the medical negligence of defendant's employees proximately caused the wrongful death of plaintiff's intestate, Jonathan Andrew Thames. Defendant filed its Answer to plaintiff's Affidavit on January 28, 2009, denying the allegations of the Affidavit and asserting the affirmative defense of contributory negligence.
Plaintiff sought entry of a discovery scheduling order by Motion filed on February 4, 2009 and, after receiving input from the parties, a discovery scheduling order was entered by Deputy Commissioner Gheen on May 11, 2009, as well as a revised discovery scheduling order on September 22, 2009. The revised order set deadlines for the taking of depositions and indicated that the case would be ready to set for hearing anytime after August 1, 2010.
On or before December 1, 2009, the depositions of plaintiff and four fact witnesses were completed by the parties. The deposition of one treating physician fact witness was completed on January 25, 2010, by agreement of the parties. On or before December 15, 2009, plaintiff identified his expert witness, whose deposition was scheduled for March 2010.
On January 4, 2010, defendant filed the motion which is the subject of this matter, which was a Motion to Amend Answer to assert the affirmative defense of statutory immunity pursuant to N.C. Gen. Stat. §
At the time defendant filed its Motion to Amend Answer, the trial date was at least eight months away and plaintiff had not taken the deposition of his expert witness. Discovery was ongoing and had not been completed. The Deputy Commissioner denied defendant's Motion by Order filed July 6, 2010, and defendant appealed to the Full Commission.
[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
N.C. Gen. Stat. §
The Court of Appeals has stated that "[l]iberal amendment of pleadings is encouraged by the Rules of Civil Procedure in order that decisions be had on the merits and not avoided on the basis of mere technicalities."Phillips v. Phillips,
Our Courts have held that factors to consider in deciding whether to grant or deny a motion to amend include undue delay, bad faith, undue prejudice, and the futility of the amendment. Walker v. Walker,
Defendant's Motion to Amend Answer does not prejudice the course and scope of further discovery in the present action or cause undue delay. The statute does not contain a time limit to amend pleadings. N.C. Gen. Stat. §
Nothing within the record suggests bad faith by defendant. N.C. Gen. Stat. §
2. In its discretion, the Full Commission hereby GRANTS defendant leave to amend their answer.
3. Defendant shall pay the costs of re-deposing any necessary witnesses that have already been deposed as of the date of this Order.
4. This case is REMANDED to Chief Deputy Commissioner Wanda Blanche Taylor for assignment to a Deputy Commissioner for further discovery scheduling and hearing on the merits.
This the 26th day of January, 2011. *Page 5
S/___________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
CONCURRING:
*Page 1S/___________________ PAMELA T. YOUNG CHAIR
S/___________________ CHRISTOPHER SCOTT COMMISSIONER
Kinnard v. Mecklenburg Fair, Ltd. , 301 N.C. 522 ( 1980 )
Vernon v. Crist , 291 N.C. 646 ( 1977 )
Walker v. Walker , 143 N.C. App. 414 ( 2001 )
Members Interior Construction, Inc. v. Leader Construction ... , 124 N.C. App. 121 ( 1996 )
Phillips v. Phillips , 46 N.C. App. 558 ( 1980 )
Mauney v. Morris , 316 N.C. 67 ( 1986 )
Martin v. Hare , 78 N.C. App. 358 ( 1985 )
GRO-MAR PR v. Billy Jack Enterprises, Inc. , 36 N.C. App. 673 ( 1978 )
North River Ins. Co. v. Young , 117 N.C. App. 663 ( 1995 )
Kinnard v. Mecklenburg Fair, Ltd. , 46 N.C. App. 725 ( 1980 )
Patrick v. RONALD WILLIAMS, PA , 102 N.C. App. 355 ( 1991 )