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Powell v. Kent

Court of Appeals of North Carolina

January 16, 2018

JOE WALLACE POWELL, JR., Plaintiff,
v.
ROBERT KENT and CYNTHIA YOUNG, Defendants.

          Heard in the Court of Appeals 13 December 2017.

         Appeal by plaintiff from order entered 8 February 2017 by Judge Sharon Tracey Barrett in Haywood County No. 16 CVS 188 Superior Court.

          Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-appellant.

          Sizemore McGee, PLLC, by Charles E. McGee, for unnamed defendant-appellee Mid-Continent Casualty Company.

          ARROWOOD, Judge.

         Joe 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.

         I. Background

         On 4 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.

         On 24 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.

         On 26 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.

         Defendant 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 public road.

         Plaintiff 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.

         On 3 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.

         On 8 February 2017, the trial court entered an order granting Mid-Continent's motion for summary judgment and ...


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