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Kahihu v. Brunson

Court of Appeals of North Carolina

June 3, 2014

JACKSON KAHIHU, Plaintiff,
v.
RAYMOND BRUNSON, Defendant

Heard in the Court of Appeals February 5, 2014.

Counsel Amended, June 3, 2014.

Durham County. No. 11 CVD 5031. Nancy E. Gordon, Judge.

The Law Offices of Andrew J. Kisala, PLLC, by Mr. Andrew J. Kisala, for plaintiff-appellant.

Law Offices of Robert E. Ruegger, by Mr. Robert E. Ruegger, for defendant Integon National Insurance Company, defendant-appellee.

McCULLOUGH, Judge. Judges HUNTER, Robert C., and GEER concur.

OPINION

Page 649

Appeal by plaintiff from order entered 12 March 2013 by Judge Nancy E. Gordon in Durham County District Court.

McCULLOUGH, Judge.

Plaintiff Jackson Kahihu challenges an order granting defendant Integon National Insurance Company's motion for directed verdict. For the reasons stated herein, we affirm the order of the trial court.

I. Background

On 23 September 2011 Plaintiff Jackson Kahihu filed a complaint against defendant Raymond Brunson. Plaintiff alleged the following: On 22 April 2011, plaintiff and defendant Brunson were involved in a car accident in Durham, North Carolina. Plaintiff was driving west in the right lane on Holloway Street near U.S. 70 when defendant Brunson was driving west in the left lane on the same street. As defendant Brunson was approaching the PVA turnoff to 2101 Holloway Street,

Page 650

he " immediately and without warning swerved across the right lane and suddenly applied his brakes which caused him to rapidly decelerate in front of Plaintiff's vehicle, leaving Plaintiff unable to stop before colliding with Defendant [Brunson]." " The sudden swerving and braking action by Defendant [Brunson] left Plaintiff unable to stop before colliding into the back of Defendant [Brunson]'s vehicle." Plaintiff alleged that due to defendant Brunson's negligence, plaintiff had suffered damage to his property, physical injuries, and other expenses.

The civil summons, issued on 23 September 2011, was returned to plaintiff on 2 November 2011, stating that defendant Brunson was not served. The civil summons included the following notation: " No contact mult. attempts note."

On 8 November 2011, plaintiff filed a " Motion for Entry of Default" for entry of default and default judgment against defendant Brunson for failure to plead. On the same day, plaintiff's counsel filed an " Affidavit of Service by Certified Mail." Plaintiff's counsel testified that upon filing the complaint on 23 September 2011, he mailed a file-stamped Civil Summons and Complaint to defendant Brunson via United States postal service certified mail, addressed to defendant, return receipt requested. Plaintiff's counsel testified that on 24 September 2011, the summons and complaint were delivered to defendant Brunson's place of residence and " signed for by a person presumably of suitable age and discretion who is an agent for Defendant." On 8 November 2011, the trial court entered an " Entry of Default" against defendant Brunson for failure to plead.

On 10 February 2012, plaintiff filed an amended complaint. That same day, plaintiff filed a " Motion to Set Aside Entry of Default" as to defendant Brunson. Plaintiff argued in the motion that " [a]ll responsible parties were not known to Plaintiff on the date of his Motion for Entry of Default through no fault of his own, and could not have been discovered through due diligence." Based on the foregoing, plaintiff asserted that he failed to correctly serve all responsible parties pursuant to Rule 4 of the North Carolina Rules of Civil Procedure and wished to amend his complaint. On 10 February 2012, the trial court entered an " Order Setting Aside Entry of Default" as to defendant Brunson.

On 23 March 2012, plaintiff filed a " Motion for Entry of Default" against defendant Brunson. Thereafter, the trial court filed an " Entry of Default" against defendant Brunson.

Also on 23 March 2012, plaintiff's counsel filed an " Affidavit of Service by Certified Mail," amended 26 March 2012, alleging that on 24 September 2011, a summons and complaint was delivered to defendant Brunson's place of residence and signed by a person presumably of suitable age and discretion who is agent for defendant Brunson. The affidavit also stated that after learning that this case would proceed as an uninsured motorists claim, plaintiff's counsel mailed a file-stamped Civil Summons and Complaint on 16 February 2012 to plaintiff's insurance company and provider of his uninsured motorists policy, GMAC Insurance Management Corporation (" GMAC" ) or previously named Integon National Insurance Company. The summons and complaint were sent via United States postal service certified mail, addressed to GMAC's registered agent on file with the North Carolina Secretary of State, return receipt requested. Plaintiff's counsel testified that on 17 February 2012, the summons and complaint were delivered to GMAC's registered agent and signed for by a person presumably of suitable age and discretion who is an agent for GMAC.

On 28 March 2012, Integon National Insurance Company (" defendant Integon" ) filed an Answer. Defendant Integon moved to dismiss plaintiff's action for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. Defendant Integon also moved to dismiss plaintiff's action for lack of jurisdiction over defendant Brunson, insufficiency of ...


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