in the Court of Appeals 30 November 2016.
by plaintiff from judgment entered 1 December 2015 by Judge
Joseph N. Crosswhite in Superior Court, Davidson County No.
11 CVS 2590.
Maynard & Harris, Attorneys at Law, PLLC, by C. Douglas
Maynard, Jr., for plaintiff-appellant.
and Hamrick, L.L.P., by Kent L. Hamrick and Ann C. Rowe, for
defendant-appellee Ashwell Bennett Harward, Jr.
Burton, Sue & Anderson, LLP, by Stephanie W. Anderson,
for unnamed defendant-appellee Erie Insurance Exchange.
Whitley Law Firm, by Ann C. Ochsner, and Martin & Jones,
PLLC, by Huntington M. Willis, for North Carolina Advocates
for Justice, amicus curiae.
Coates Kyre & Bowers, PLLC, by Deborah J. Bowers and
Andrew G. Pinto, for North Carolina Association of Defense
Attorneys, amicus curiae.
William Hairston, Jr. ("plaintiff") appeals from
the trial court's judgment allowing defendant Ashwell
Bennett Harward, Jr. ("defendant Harward")'s
motion for credits and setoffs against the tort judgment for
the money plaintiff received through its underinsured
motorist ("UIM") provider, unnamed defendant Erie
Insurance Exchange ("unnamed defendant Erie"). The
trial court's judgment also found that unnamed defendant
Erie waived its right to subrogation and had no further duty.
On appeal, plaintiff argues that the trial court should not
have allowed the credit and that the court abused its
discretion by not permitting plaintiff to take depositions of
defendant's insurance provider, State Farm, and unnamed
defendant Erie representatives. We hold that the trial court
did not err in allowing defendant Harward the credit against
the judgment for unnamed defendant Erie's payment under
the settlement agreement, since unnamed defendant Erie waived
all rights to subrogation. We further hold that the trial
court did not abuse its discretion by not allowing plaintiff
to take the additional requested depositions.
filed a complaint on 27 July 2011 against defendant Harward
seeking to recover for injuries plaintiff received in a car
crash between plaintiff and defendant Harward. Plaintiff
later amended his complaint seeking additional relief from
two other defendants; those defendants were later dismissed
without prejudice and are not parties to this appeal. Unnamed
defendant Erie filed a notice of appearance on 17 April 2013.
On 14 August 2014, a jury returned a verdict finding
plaintiff was injured by defendant Harward's negligence
and that he was entitled to recover $263, 000.00 for his
September 2014, defendant Harward moved for setoffs and
credits against the trial court's judgment. The trial
court entered an order on 16 October 2014 reducing the
judgment to $230, 000.00 after finding that "[t]he
parties agree that [defendant Harward] is entitled to setoffs
or credits totaling $33, 000.00 for the reasons set out in
[defendant Harward's] September 15, 2014 Motion and that
said setoffs or credits should be applied so that the
judgment amount will be $230, 000.00[.]" The court's
order noted that the parties disagreed over whether defendant
Harward should receive a credit for payment plaintiff
received -- following the jury verdict -- from unnamed
defendant Erie, his underinsured motorist coverage
filed a response to defendant's motion for setoffs and
credits against the judgment on 17 September 2015. On 25
September 2015, unnamed defendant Erie's attorney filed
an affidavit that included as "Exhibit 'A'
" a settlement agreement between unnamed defendant Erie
and plaintiff, entered on or about 3 October 2014. Under the
settlement agreement, unnamed defendant Erie agreed to pay
$145, 000.00 in UIM coverage under plaintiff's policy.
The affidavit noted:
Following the verdict, Erie paid the remaining balance of
$145, 000.00 of its [UIM coverage] to the plaintiff in
exchange for a Full and Final Release of All Claims . . .,
which clearly releases Erie's right of reimbursement and
does not require the plaintiff to hold any amounts recovered
from the defendant in trust.
hearing was held on defendant Harward's motion on 29
October 2015, and on 1 December 2015, the trial court entered
its judgment, which contained these findings of fact:
1. Erie, Plaintiff's underinsured motorists
("UIM") carrier, waived its subrogation rights
prior to the commencement of trial.
2. On September 11, 2014 counsel for Erie mailed directly to
Plaintiff's counsel Erie's check for $145, 000.00
which represented the remaining balance of Plaintiff's
UIM coverage with Erie.
3. In exchange for said payment Plaintiff executed a Full and
Final Release of All Claims against Erie which clearly showed
that Erie waived any and all rights of reimbursement and
Plaintiff was not required to hold any amounts recovered from
Defendant in trust.
4. On October 9, 2014 State Farm, Defendant's liability
carrier, mailed a check for $97, 000.00 to Plaintiff's
5. North Carolina courts have adopted the common law
principle that a plaintiff should not be permitted a double
recovery for a single injury, Baity v. Brewer, 122
N.C.App. 645, 470 S.E.2d 836 (1996); Seafare Corp. v.
Trenor Corp., 88 N.C.App. 404, 363 S.E.2d 643 (1987).
6. In Wood v. Nunnery, 222 N.C.App. 303, 730 S.E.2d
222 (2012) the Court of Appeals cited the UIM statute:
In the event of payment, the underinsured motorist insurer
shall be either: (a) entitled to receive by assignment from
the claimant any right or (b) subrogated to the
claimant's right regarding any claim the claimant has or
had against the owner, operator, or maintainer of the
underinsured highway vehicle, provided that the amount of the
insurer's right by subrogation or assignment shall not
exceed payments made to the claimant by the insurer. N.C.
Gen. Stat. § 20-279.21(b)(4) (2011). 88 N.C.App. at 307,
730 S.E.2d at 225.
7. In Wood, unlike this case, the UIM carrier paid
the money to the clerk and not to the plaintiff directly and
did not waive its right of subrogation; therefore, the UIM
carrier still retained the right of subrogation. Because the
UIM carrier's subrogation right remained, the Defendant
in Wood was not entitled to credit for payments made
by the UIM carrier.
8. The Court has carefully considered Defendant's motion
for credits and setoffs and is of the opinion and so finds,
in its sound discretion, that Defendant's motion should
be allowed; Defendant is entitled to a credit for the $97,
000.00 paid by State Farm directly to Plaintiff and is
further entitled to a credit for the $145, 000.00 paid by
Erie directly to Plaintiff.
9. Because Erie has waived its right to subrogation and
reimbursement, the Court is of the opinion and does so find
that Erie has no further duty in this matter.
10. Plaintiff's motion for leave to take further
depositions has been carefully considered by the Court and
the Court, in its sound discretion, is of the opinion and so
finds that . . . the motion should be denied at this time.
11. Plaintiff's motions to strike the affidavits of Kent
L. Hamrick and Stephanie W. Anderson have also been carefully
considered by the Court and the Court, in its sound
discretion, is of the opinion ...