NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY; NATIONWIDE MUTUAL INSURANCE COMPANY; AND NATIONWIDE INSURANCE COMPANY OF AMERICA, Third-Party Plaintiffs,
TIMOTHY W. SMITH and TIMOTHY R. SMITH, Third-Party Defendants.
in the Court of Appeals 7 September 2017.
by Third-Party Plaintiffs from order entered 2 December 2016
by Judge Phyllis M. Gorham in Duplin County Superior Court,
No. 14 CvS 380.
Marshall, Williams & Gorham, L.L.P, by William Robert
Cherry, Jr., for the Third-Party Plaintiffs-Appellants.
E. Clark, Jr., Attorney at Law, PPLC, by Donald E. Clark,
Jr., for the Third-Party Defendants-Appellees.
Third-Party Plaintiffs (collectively "Nationwide")
appeal from an order of the trial court dismissing their
Third-Party Complaint pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure.
George Olsen, Sr., and his wife, Sharon N. Olsen, purchased a
personal automobile underinsurance motorist insurance policy
policy provided coverage to the Olsens should they be injured
by an at-fault driver whose liability coverage limits were
too low to cover their damages.
2013, Mr. Olsen was walking by the side of the road when he
was struck by a car driven by Skylar Wellington
("Defendant"). Defendant had lost control of her
vehicle and drifted off of the paved portion of the street.
About three hours after the accident, Defendant's blood
alcohol concentration was tested and registered a blood
alcohol level of .15.
2014, Plaintiffs filed this action against Defendant and
Nationwide. Nationwide filed a third-party complaint against
Timothy W. Smith and Timothy R. Smith, alleging that the
Smiths had negligently served Defendant alcohol and allowed
her to drive. Nationwide sought contribution from the
Smiths for a portion of their alleged common liability for
auto liability carrier offered the full limit of their
liability coverage to Plaintiffs in exchange for
Plaintiffs' execution of a covenant not to enforce
judgment. Defendant's liability carrier was thus released
from further liability and was not obligated to participate
in the lawsuit.
then negotiated a settlement with Nationwide for $850, 000.
Following the settlement, Plaintiffs signed a release of all
claims and filed a voluntary dismissal of their complaint
with prejudice. Accordingly, the only remaining issue in the
case was Nationwide's third-party complaint against the
Smiths, who had allegedly served Defendant alcohol shortly
before the accident.
Smiths' moved to dismiss Nationwide's third-party
complaint for contribution. The trial court granted the
Smiths' motion based on Rule 12(b)(6) for failure to
state a claim upon ...