An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-840
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
ERNEST LLOYD & MARY JO CAUBLE,
Plaintiffs,
v. Henderson County
No. 11 CVS 1251
WILLIAM PRESTON COFFEY,
Defendant,
&
MARKEL INSURANCE COMPANY,
Unnamed Defendant.
Appeal by plaintiffs from order entered 22 March 2013 by
Judge Alan Z. Thornburg in Henderson County Superior Court.
Heard in the Court of Appeals 11 December 2013.
Lanier Law Group, P.A., by Michael F. Roessler, for
plaintiff-appellants.
Arthurs & Foltz, LLP, by Douglas P. Arthurs and Travis G.
Page, for unnamed defendant-appellee.
BRYANT, Judge.
Where plaintiffs fail to follow the statutory requirements
of providing advance, written notice of a claim and settlement
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offer in accordance with N.C. Gen. Stat. § 20-279.12(b)(4), a
grant of summary judgment in favor of unnamed defendant Markel
Insurance Company is appropriate.
On 8 October 2008, plaintiffs Ernest Lloyd and Mary Jo
Cauble (“plaintiffs”) were a driver and passenger, respectively,
in a municipally-operated bus when the bus was struck from
behind by defendant William Preston Coffey (“defendant”). On 7
July 2011, plaintiffs filed a complaint against defendant
alleging injury and damages as a result of defendant’s
negligence.
On 15 December 2011, plaintiffs’ counsel sent a notice to
Markel Insurance Company (“Markel”), holders of defendant’s
underinsured motor vehicle policy (“UIM”), that “the bodily
injury damages incurred in [the October 8, 2008] accident exceed
[defendant’s] liability insurer’s limits of liability coverage.”1
On 20 July 2012, plaintiff Lloyd agreed to a settlement
agreement and covenant not to enforce judgment with defendant’s
insurance carrier, Discovery. On 1 August 2012, plaintiff
Cauble agreed to a similar settlement agreement and covenant not
to enforce judgment with defendant’s insurance carrier,
Discovery.
1
Defendant’s primary insurance carrier was Discovery Insurance
Company (“Discovery”).
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On 17 December 2012, Markel filed a motion for summary
judgment alleging that plaintiffs had failed to provide Markel
with thirty days advance, written notice of the settlement
agreements with Discovery as required by N.C. Gen. Stat. § 20-
279.12(b)(4). On 22 March 2013, the trial court granted
Markel’s motion for summary judgment. Plaintiffs appeal.
_________________________
On appeal, plaintiffs argue that the trial court erred in
granting Markel’s motion for summary judgment. We disagree.
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C. Gen. Stat. §
1A-1, Rule 56(c) (2011). We review a trial court’s granting of
summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524,
649 S.E.2d 382, 385 (2007).
Plaintiffs contend that the trial court erred in granting
Markel’s motion for summary judgment. Specifically, plaintiffs
argue that the trial court erred in granting summary judgment
because plaintiffs provided written, advance notice of their
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settlement agreements to Markel as required by N.C.G.S. § 20-
279.21(b). Pursuant to N.C.G.S. § 20-279.21(b)(4),
[n]o insurer shall exercise any right of
subrogation or any right to approve
settlement with the original owner,
operator, or maintainer of the underinsured
highway vehicle under a policy providing
coverage against an underinsured motorist
where the insurer has been provided with
written notice before a settlement between
its insured and the underinsured motorist
and the insurer fails to advance a payment
to the insured in an amount equal to the
tentative settlement within 30 days
following receipt of that notice. Further,
the insurer shall have the right, in its
election, to pursue its claim by assignment
or subrogation in the name of the claimant,
and the insurer shall not be denominated as
a party in its own name except upon its own
election.
N.C.G.S. § 20-279.21(b)(4) (2011). Our Court has held that “a
plaintiff is . . . required to notify the UIM insurance carrier
when a claim is filed against the primary tort-feasor, and also
when a settlement offer has been made.” Gurganious v. Integon
Gen. Ins. Corp., 108 N.C. App. 163, 166, 423 S.E.2d 317, 318
(1992) (emphasis added).
Here, plaintiffs’ counsel sent letters to Markel on 15
December 2011 which stated:
Please be advised that we represent
[plaintiffs] with respect to injuries
arising from an accident involving my
client[s] on or about 10/8/2008. Further
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communications regarding this matter should
be directed to the undersigned.
This letter will also advise you that the
bodily injury damages incurred in this
accident exceed the liability insurer’s
limits of liability coverage. Factual and
medical information will be submitted to you
as soon as my client[s] ha[ve] reached
maximum medical improvement.
Please acknowledge this correspondence and
confirm that the above-named was insured on
the date of the accident and furnish us with
the amount of insurance coverage. Also,
please forward to the undersigned any copies
of medical records or recorded statements
that you may have retained in your files.
The letters sent by plaintiff’s counsel provide written notice
of a claim to Markel; however, the letters do not convey notice
of a proposed settlement offer. Therefore, the letters fail to
meet N.C.G.S. § 20-279.21(b)(4)’s requirement of providing
written notice to Markel of a claim and a settlement offer. See
Williams v. Bowden, 128 N.C. App. 318, 494 S.E.2d 798 (1998)
(holding that plaintiff’s oral notice of a settlement offer via
a telephone conversation with the insurer did not meet N.C.G.S.
§ 20-279.21(b)(4)’s requirement of written notice); Gurganious,
108 N.C. App. at 166, 423 S.E.2d at 318 (“[A] plaintiff is . . .
required to notify the UIM insurance carrier when a claim is
filed against the primary tort-feasor, and also when a
settlement offer has been made.”). Accordingly, as plaintiffs
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have not met the requirements of N.C.G.S. § 20-279.21(b)(4) by
giving advance, written notice of a claim and settlement offer,
the trial court did not err in granting Markel’s motion for
summary judgment.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).