in the Court of Appeals 13 December 2017.
by plaintiff from order entered 8 February 2017 by Judge
Sharon Tracey Barrett in Haywood County No. 16 CVS 188
& Lopez, P.A., by Robert J. Lopez, for
Sizemore McGee, PLLC, by Charles E. McGee, for unnamed
defendant-appellee Mid-Continent Casualty Company.
Wallace Powell, Jr. ("plaintiff") appeals from an
order granting the unnamed defendant, Mid-Continent Casualty
Company's ("Mid-Continent") motion for summary
judgment. For the reasons stated herein, we affirm the order
of the trial court.
February 2009, plaintiff filed a complaint for personal
injury against Robert Kent ("defendant Kent") and
Cynthia Young ("defendant Young") in case number 09
CVS 156. On the same date, summons were issued against
defendants Kent and Young. Service of the summons and
complaint on defendants Kent and Young was made on 10
February 2009. On 24 February 2009, summons was issued to
Mid-Continent. Service of the summons and complaint as to
Mid-Continent was made through the Commissioner of Insurance
on 31 March 2009. On 1 October 2013, Mid-Continent filed a
motion to dismiss. On 13 December 2013, an order of voluntary
dismissal without prejudice and with leave to re-file
pursuant to Rule 41(a)(2) of the North Carolina Rules of
Civil Procedure was entered.
February 2014, plaintiff re-filed the action in case number
14 CVS 00168. On the same date, summonses were issued against
defendant Kent, defendant Young, and Mid-Continent. Service
of the summons and complaint on defendants Kent and Young was
made on 3 March 2014. Service of the summons and complaint as
to Mid-Continent was made through the Commissioner of
Insurance on 20 March 2014 and was received on 24 March 2014.
On 2 November 2014, a notice of voluntary dismissal without
prejudice as to his claim against Mid-Continent was filed and
a stipulated notice of voluntary dismissal without prejudice
was filed as to the claims against defendants Kent and Young.
February 2016, plaintiff re-filed his complaint against
defendants Kent and Young in case number 16 CVS 188.
Plaintiff alleged as follows: Plaintiff was the owner of a
1997 Chevrolet truck, defendant Kent was the owner of a
Chevrolet Silverado truck, and defendant Young was the owner
of a Ford F-350 truck.
Kent was in default in the payment of an automobile loan
which was secured by the Chevrolet Silverado truck.
Plaintiff's employer had contracted with the financial
institution which had made the secured loan to defendant Kent
to repossess the Chevrolet Silverado. Plaintiff was informed
that the Chevrolet Silverado was located on defendant
Young's property, and plaintiff, with his wife as
passenger, drove his 1997 Chevrolet truck to repossess the
Chevrolet Silverado. After taking possession of the Chevrolet
Silverado, plaintiff's truck was blocked by a cable and
another vehicle, leaving plaintiff unable to return to the
further alleged that after he exited his truck, he saw
defendant Kent, driving defendant Young's Ford F-350
truck, drive toward plaintiff's direction. Defendant Kent
slammed on the brakes of the Ford F-350 truck, which began
"skidding and sliding in the [plaintiff's]
direction[.]" While the Ford F-350 was coming to a
sliding stop, defendant Kent opened the door in an attempt to
exit the truck. The Ford F-350 struck plaintiff "in a
glancing blow[, ]" causing plaintiff's body to be
spun around and into the open driver's side door.
Defendant Kent then struck both his Chevrolet Silverado and
plaintiff's 1997 Chevrolet truck with a metal bar,
causing substantial property damage to both vehicles.
Defendant Kent removed items from the Chevrolet Silverado and
told plaintiff to leave the property. Defendant Young
remained in the vehicle throughout the entire incident.
Plaintiff and his wife then left the property in
plaintiff's truck, with the Chevrolet Silverado. Based on
the foregoing, plaintiff alleged the following claims:
negligence, personal injury, and punitive damages as to
defendants Kent and Young; uninsured/underinsured coverage
claim against Mid-Continent.
January 2017, Mid-Continent filed a motion for summary
judgment pursuant to Rule 56 of the North Carolina Rules of
Civil Procedure. Mid-Continent argued that because defendants
Kent and Young did not have an insurance policy to provide
liability coverage for the claims against them and because
Mid-Continent had an insurance policy covering
plaintiff's vehicle at the time of the incident,
plaintiff's claims against Mid-Continent fell exclusively
within the realm of uninsured motorist ("UM")
claims, governed by N.C. Gen. Stat. § 20-279.21(b)(3).
Mid-Continent, citing several North Carolina cases, contended
that the statute of limitations for UM claims requires that
UM insurance carriers be served with the summons and
complaint no later than three years after the date of injury.
Because the automobile accident in this case occurred on 8
February 2006 and Mid-Continent was not served with the
summons and complaint until more than six weeks after the
expiration of the statute of limitations, Mid-Continent
argued that plaintiff's claims against Mid-Continent
should be dismissed at summary judgment.
February 2017, the trial court entered an order granting
Mid-Continent's motion for summary judgment and