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Hairston v. Harward

Court of Appeals of North Carolina

November 7, 2017

WILLIAM HAIRSTON, JR., Plaintiff,
v.
ASHWELL BENNETT HARWARD, JR., Defendant.

          Heard in the Court of Appeals 30 November 2016.

         Appeal 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.

          Davis 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.

          Pinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers and Andrew G. Pinto, for North Carolina Association of Defense Attorneys, amicus curiae.

          STROUD, Judge.

         Plaintiff 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.

         Facts

         Plaintiff 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 personal injuries.

         On 15 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 ("UIM") provider.

         Plaintiff 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.

         A 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 counsel.
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 ...

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