The Estate of Nathan Richard Coppick v. Hobbs Marina Properties, LLC

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-127

Filed: 7 April 2015

Lincoln County, No. 08 CVS 1960

THE ESTATE OF NATHAN RICHARD COPPICK, by its ADMINISTRATOR
RICHARD G. COPPICK, Plaintiff,

v.

HOBBS MARINA PROPERTIES, LLC; HOBBS WESTPORT MARINA, LLC;
CHAMPIONSHIP CHARTERS, INC.; JOSEPH CLIFTON CHAMPION; AND
PETROLEUM EQUIPMENT & SERVICE, INC., Defendants.

Appeal by defendant Petroleum Equipment and Service, Inc., from judgment

entered 11 April 2013 by Judge Forrest D. Bridges in Lincoln County Superior Court.

Heard in the Court of Appeals 12 August 2014.

Sigmon, Clark, Mackey, Hutton, Hanvey & Ferrell, PA, by Forrest A. Ferrell
and Jason White, for plaintiff-appellee.

Horack, Talley, Pharr & Lowndes, P.A., by Kimberly Sullivan, for defendant-
appellant.

BRYANT, Judge.

Where the evidence was sufficient to support the jury verdict finding that the

death of Nathan Coppick was caused by defendant’s negligence and properly based

on the doctrine of negligence per se, we find no error in the trial court’s denial of

defendant’s motion for judgment notwithstanding the verdict or new trial. We also

find no error in the trial court’s assessment of interest on the compensatory damage

award in accordance with North Carolina General Statutes, section 24-5.
THE ESTATE OF NATHAN RICHARD COPPICK V. HOBBS MARINA PROPERTIES, LLC, ET AL
Opinion of the Court

On 27 March 2013, a jury trial commenced in Lincoln County Superior Court,

the Honorable Forrest Donald Bridges, Judge presiding. Plaintiff, The Estate of

Nathan Richard Coppick, by its Administrator Richard G. Coppick, had filed suit

alleging negligence against defendants Hobbs Marina Properties, LLC; Hobbs

Westport Marina, LLC; Championship Charters, Inc.; Joseph Clifton Champion; and

Petroleum Equipment & Service, Inc. Prior to trial, plaintiff voluntarily dismissed

its claim against defendants Championship Charters, Inc., and Joseph Clifton

Champion. The record is silent as to the outcome of the proceedings against Hobbs

Marina Properties, LLC, and Hobbs Westport Marina, LLC. But, at trial, the only

defendant plaintiff proceeded against was Petroleum Equipment & Service, Inc.

(hereinafter “defendant”).

The evidence at trial tended to show that on 10 June 2008, Nathan Coppick

was working at the Hobbs Westport Marina in Denver, North Carolina. Shortly

before four o’clock that afternoon, the Championship II, an eighty-foot-long charter

vessel with two fuel tanks (one twenty gallon tank, one ten gallon tank) was

positioned at Hobbs Westport Marina for refueling. The gas pump was activated, and

recorded video surveillance admitted as substantive evidence and played for the jury

showed Nathan pulling a gasoline hose toward the gasoline receptacle located at the

rear of the Championship II. Nathan then walked away from the gasoline receptacle

and headed toward the front of the boat. According to the clock shown on the recorded

video surveillance, after six minutes had elapsed, a vapor cloud was visible on the

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Opinion of the Court

port side of the vessel in “real close proximity” to the fueling area. Then there were

two explosions. The first explosion occurred as Nathan was stepping off a ladder from

the second deck onto the center of the stern (the back of the boat). When the second

explosion occurred, fire engulfed the stern of the Championship II. Nathan was killed

instantly.

Evidence showed that defendant provided the fuel dispensing system

equipment, including nozzles, used at the marina. The nozzle on the hose Nathan

used to refuel the Championship II was a non-pressure-activated nozzle with a hold-

open latch. Richard Strickland, Chief Fire Code Consultant with the North Carolina

Department of Insurance, Office of State Fire Marshal, and Rebecca Warr, Safety

Compliance Officer with the North Carolina Department of Labor, testified that use

of gasoline nozzles with a hold-open latch at a marina was a violation of the North

Carolina Fire Code and OSHA regulations.

The jury found defendant negligent and liable for Nathan Coppick’s death. The

jury awarded plaintiff $1,500,000.00, and the trial court entered judgment in

accordance with the jury award. Defendant filed a motion for judgment

notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial.

The trial court denied the motion. Defendant appeals.

___________________________________

In its appeal from the denial of its motion for JNOV and alternatively, new

trial, defendant contends the trial court erred in denying the motion. Defendant also

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Opinion of the Court

challenges the trial court’s instructions on negligence and negligence per se, the trial

court’s failure to instruct on insulating negligence, certain evidentiary rulings of the

trial court, and the award of prejudgment interest.

“A motion for JNOV is essentially a renewal of a motion for a directed verdict.

The standard to be employed by a trial judge in determining whether to grant a

judgment notwithstanding the verdict is the same standard employed in ruling on a

motion for a directed verdict.” State Properties, LLC v. Ray, 155 N.C. App. 65, 72,

574 S.E.2d 180, 185—86 (2002) (citations omitted).

In determining the sufficiency of the evidence to withstand
a motion for a directed verdict, all of the evidence which
supports the non-movant's claim must be taken as true and
considered in the light most favorable to the non-movant.
The non-movant is given the benefit of every reasonable
inference which may legitimately be drawn from the
evidence, resolving contradictions, conflicts, and
inconsistencies in the non-movant's favor. A motion for
directed verdict should be denied if more than a scintilla of
evidence supports each element of the non-moving party's
claim.

Trantham v. Michael L. Martin, Inc., ___ N.C. App. ___, ___, 745 S.E.2d 327, 331

(2013) (quotations and citations omitted).

Negligence / Negligence Per Se

Defendant argues that plaintiff failed to prove the elements of negligence and,

thus, the trial court erred in denying defendant’s motion for JNOV. Defendant

contends plaintiff failed to establish that defendant owed Nathan Coppick a duty of

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Opinion of the Court

care, and failed to put forth evidence that defendant installed the nozzle used by

Nathan at the time of his death. We disagree.

In order to set out a prima facie claim of negligence
against [the defendant], [the] plaintiff was required to
present evidence tending to show that (1) [the defendant]
owed a duty to [the] plaintiff; (2) [the defendant] breached
that duty; (3) such breach constituted an actual and
proximate cause of plaintiff's injury; and, (4) [the] plaintiff
suffered damages in consequence of the breach.

Cucina v. City of Jacksonville, 138 N.C. App. 99, 102, 530 S.E.2d 353, 355 (2000)

(citation omitted). However, where there is a violation of a safety statute, the

traditional role of the jury in determining whether plaintiff has set forth a prima facie

case of negligence is superseded, and defendant-violator is considered to be negligent

as a matter of law, or negligent per se.

The statute prescribes the standard, and the standard
fixed by the statute is absolute. The common law rule of
ordinary care does not apply – proof of the breach of the
statute is proof of negligence. The violator is liable if injury
or damage results, irrespective of how careful or prudent
he has been in other respects.

Cowan v. Transfer Co. & Carr v. Transfer Co., 262 N.C. 550, 554, 138 S.E.2d 228, 231

(1964).

The general rule in North Carolina is that the violation of
a public safety statute constitutes negligence per se. A
public safety statute is one imposing upon the defendant a
specific duty for the protection of others. Significantly,
even when a defendant violates a public safety statute, the
plaintiff is not entitled to damages unless the plaintiff
belongs to the class of persons intended to be protected by
the statute, and the statutory violation is a proximate

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cause of the plaintiff's injury.

Stein v. Asheville City Bd. Of Educ., 360 N.C. 321, 326, 626 S.E.2d 263, 266 (2006)

(citations and quotations omitted).

Defendant’s duty of care argument, which in effect challenges the duty imposed

pursuant to the public safety statute in question—here, the N.C. Building Code—

must fail. See Stultz v. Thomas, 182 N.C. 470, 473, 109 S.E. 361, 362 (1921) (holding

that “[a] failure to discharge an affirmative duty imposed by law has been held by us,

in a number of cases, to constitute an act of negligence per se . . . . In fact, a breach

of a legal duty, or a duty imposed by law, comes within the very definition of

negligence[.]” (citations omitted)).

Pursuant to General Statutes, section 143-138, “[t]he [Building] Code may

regulate activities and conditions in buildings, structures, and premises that pose

dangers of fire, explosion, or related hazards. Such fire prevention code provisions

shall be considered the minimum standards necessary to preserve and protect public

health and safety . . . .” N.C. Gen. Stat. § 143-138(b1) (2013). “The N.C. Building

Code has the force of law[,] . . . and a violation thereof is negligence per se.” Lindstrom

v. Chesnutt, 15 N.C. App. 15, 22, 189 S.E.2d 749, 754 (1972) (citations omitted).

“[T]he Code imposes liability on any person who constructs, supervises construction,

or designs a [structure] or alteration thereto, and violates the Code such that the

violation proximately causes injury or damage.” Olympic Products Co. v. Roof Sys.,

Inc., 88 N.C. App. 315, 329, 363 S.E.2d 367, 375 (1988) (citation omitted).

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In the instant case, the specific activity subject to regulation by the Code was

the use of certain nozzles containing a hold-open latch. “Dispensing of Class I, II or

IIIA liquids into the fuel tanks of marine craft shall be by means of an approved-type

hose equipped with a listed automatic-closing nozzle without a latch-open device.”

N.C. Fire Prevention Code § 2209.3.3 (2002) (emphasis added). As a producer,

installer and maintainer of fuel dispensing systems which are placed on premises

that pose a danger of fire or explosion, defendant is subject to the duty imposed under

the code.

Defendant argues that it could not be found liable based on negligence per se

absent a showing of a violation of the code and a showing that defendant knew or

should have known of the violation. Plaintiff, however, points to evidence in the

record that defendant admitted to being a general contractor licensed by the State of

North Carolina and, as such, is required to have knowledge of the North Carolina

Building Code before obtaining a general contractor license. See N.C. Gen. Stat. § 87-

10(b) (2013) (“Application for license [for General Contractors]” “(b) The Board shall

conduct an examination . . . of all applicants for license to ascertain . . . (ii) the

qualifications of the applicant in reading plans and specifications, knowledge of

relevant matters contained in the North Carolina State Building Code . . . ; (iii) the

knowledge of the applicant as to the responsibilities of a contractor to the public and

of the requirements of the laws of the State of North Carolina relating to contractors

[and] construction . . . .”).

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Opinion of the Court

Despite defendant’s contention that the Code does not specify who is

responsible for compliance with the section that regulates nozzles and hoses at

marine fueling stations, plaintiff’s evidence showed that the responsibility for

complying with the Code fell upon the marina owner and upon the person or entity

who installed the nozzles. Plaintiff’s evidence, as presented by Chief Fire Code

Consultant for the North Carolina Department of Insurance Office of State Fire

Marshal Richard Strickland, showed that the Code placed on defendant a duty to

provide to marinas the approved type of hose equipped with the proper nozzles, and

that providing a prohibited nozzle constitutes negligence per se.

Q. So the law of our state, then, would require as of
2002 that you cannot place a nozzle on a fuel-
dispensing system at a marina that contains a hold-
open latch; is that correct?

A. That is correct.

Q. And to do so would be illegal in that it violates the
North Carolina State Building Code, correct?

A. Yes, it would be in violation of [the] North Carolina
State Building Code.

In support of its argument that the trial court erred in denying defendant’s

motion for JNOV and, alternately, a new trial, defendant contends that plaintiff

failed to establish defendant installed the gasoline nozzle Nathan used when re-

fueling the charter boat, the Championship II. Plaintiff responds that the evidence

presented at trial established defendant was the only company, contractor, or

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Opinion of the Court

supplier to provide and maintain the fuel dispensing equipment. Evidence in the

record supports plaintiff’s response that defendant was the sole supplier and installer

of fuel dispensing equipment to the marina, including the types of nozzles alleged to

be in violation of the statute.

For example, Nick Harmon, who worked at the marina in the summer of 2005,

2006, and 2007 as assistant dock manager, then as dock manager, testified that

nozzles containing hold-open latches1 were used “very often” in fueling the boats.

With six fueling points and multiple boats coming in, a person could start refueling

one vessel, then move to a second boat and refuel it. Harmon testified that nozzles

containing hold-open latches were used to refuel the Championship II, as well as

other boats. Harmon recalled defendant installing and maintaining the nozzles

containing hold-open latches: “I knew [defendant’s] mechanics and techs very well”

but knew of no other company that provided maintenance for the fuel dispensers.

Further, defendant made the following pertinent factual admissions which

were allowed as evidence before the jury: that on 27 July 2006, defendant installed

five new gasoline nozzles on the fuel dispensers at the marina; that the dispensers

were “automatic-closing nozzles which contained hold-open latches”; that defendant’s

records showed that defendant had performed maintenance/service work on the fuel

dispensing system at the marina every year since 1998; and, that the nozzle on the

1 Nozzles containing hold-open latches allow gasoline to flow continuously without the
necessity of an attendant applying pressure to the nozzle.

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Opinion of the Court

fuel dispenser involved in the 10 June 2008 fire and explosion on the Championship

II would dispense 10 gallons of fuel per minute if set on full speed with the hold-open

latch engaged.

This evidence, presented by plaintiff at trial, tended to show that defendant

installed and maintained fuel delivery equipment, including gasoline nozzles that

contained hold-open latches, which was in violation of the Fire Code referenced above.

Such a violation, plaintiff contends, constitutes negligence per se.

Defendant, at trial and now on appeal, urges our review of contradictory

testimony regarding the type of nozzle used by Nathan and the installation of the

nozzle. However, for purposes of ruling on a motion for JNOV, the trial court must

resolve all conflicts, contradictions, and inconsistencies in the light most favorable to

the non-movant, here, plaintiff. See Trantham, ___ N.C. App. at ___, 745 S.E.2d at

331. Taken in the light most favorable to plaintiff and giving plaintiff the benefit of

every reasonable inference, there was sufficient evidence presented to the jury for the

jury to find that defendant installed and performed routine maintenance on the fuel

dispensing system at Hobbs Westport Marina, including changing the fuel dispensing

nozzles.

This evidence was sufficient to support the trial court’s instruction on

negligence per se which followed the pattern jury instructions and properly stated the

law as to negligence and negligence per se. Therefore, this evidence was sufficient to

prove that defendant was subject to the safety statute at issue in this litigation and

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Opinion of the Court

that defendant’s actions were in violation of the statute and, thus, sufficient to prove

liability for negligence per se, provided there was proximate cause. See Stein, 360 N.C.

at 326, 626 S.E.2d at 266 (“The general rule in North Carolina is that the violation of

a public safety statute constitutes negligence per se. . . . [The plaintiff may recover if

he] belongs to the class of persons intended to be protected by the statute, and the

statutory violation is a proximate cause of the plaintiff's injury.” (citations omitted)).

Therefore, we review defendant’s arguments regarding proximate cause.

Proximate Cause

Defendant contends plaintiff failed to establish that any conduct of defendant

proximately caused the explosion on 10 June 2008. We disagree.

“The test of proximate cause is whether the risk of injury, not necessarily in

the precise form in which it actually occurs, is within the reasonable foresight of the

defendant.” Shelton v. Steelcase, Inc., 197 N.C. App. 404, 431—32, 677 S.E.2d 485,

504 (2009) (citation omitted). “Actual causation may be proved by circumstantial

evidence, and this principle is equally as true in fire cases as in any other tort liability

case.” Collins v. Caldwell Furniture Co., 16 N.C. App. 690, 694, 193 S.E.2d 284, 286

(1972) (citation omitted). “[W]hat is the proximate cause of an injury is ordinarily a

question for the jury.” Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 235,

311 S.E.2d 559, 566 (1984) (citation and quotations omitted); see also Jenkins v.

Helgren, 26 N.C. App. 653, 658, 217 S.E.2d 120, 123 (1975) (“Certainly it is both

probable and foreseeable that fire will be the consequence of a serious fire hazard.

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Opinion of the Court

Beyond question the fumes which defendants here allowed to accumulate constituted

a serious fire hazard as a direct consequence of which the damaging fire occurred.

One whose negligence creates the hazard of fire cannot escape responsibility merely

because the source of the triggering spark may not be shown.” (citations omitted)).

Defendant states that no expert testified as to the cause or origin of the

explosion, and that plaintiff relied entirely upon circumstantial evidence. However,

expert testimony was not required to establish the cause or origin of the explosions.

See Associated Indus. Contr’rs, Inc. v. Fleming Eng'g, Inc., 162 N.C. App. 405, 411—

12, 590 S.E.2d 866, 871 (2004) (“It is well settled that the standard of care must be

determined by expert testimony unless the conduct involved is within the common

knowledge of laypersons. Where, as in the instant case, the service rendered does not

involve esoteric knowledge or uncertainty that calls for the professional's judgment,

it is not beyond the knowledge of the jury to determine the adequacy of the

performance.” (citation omitted)).

Here, plaintiff put forth sufficient evidence, both direct and circumstantial, as

to the cause or origin of the explosion. For example, the nozzle and hose used to refuel

the Championship II just prior to the explosion was plaintiff’s Exhibit 38D. Exhibit

38D, along with the remaining nozzles taken from the marina, utilized a “hold-open

latch.” When refueling a boat, marina dockhands could “engage the hold-open latch

and then go about doing other business[,]” because the hold-open latch is supposed to

disengage and stop the flow of fuel when the gasoline reaches the top of the tank

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Opinion of the Court

being filled. However, one marina customer described an overflow of fuel from the

gasoline tank on his boat as he refueled on 7 June 2008—three days before the

explosion. “I looked over the side and gas was coming back out of the boat -- or out of

the spigot. So I jumped out of the boat, flipped the [dispenser] off, the gas, so it

stopped.”

Q. How much gas do you think roughly spilled
out?

A. Well, I mean, I don't know. Usually I didn't fill up
unless the tank was close to empty . . ., but I would
say at least a couple gallons. Maybe not quite that
much.

The nozzles used at the marina had three speeds; “the fastest was 10 gallons a

minute, the middle one was about 5 gallons a minute, and the lowest one was 2

gallons a minute.”

Q. . . . [F]rom the time that nozzle was put in and
switched on until the explosion, how long [was that]?

A. It appeared to be about six minutes.

...

Q. So just using simple math, that would have meant
that 60 gallons of gas was pumped during that time?

...

Q. . . . So if [the nozzle] worked, it might have shut off
[when the tank was full], but if it didn't work, if it
pumped that whole time, 6 times 10 is 60 gallons of
gas would have been pumped into whatever tank
that nozzle was in?

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Opinion of the Court

A. It could have.

At least one defense witness testified that the fuel nozzle used to refuel the

Championship II had not “clicked off” prior to the explosion. Also, evidence at trial

showed that the manufacture date on the nozzle, Exhibit 38D, matched the month

defendant invoiced the marina for a standard nozzle, indicating that defendant sold

the nozzle that was used by Nathan Coppick to refuel the Championship II on 10

June 2008.

In addition to the testimony and exhibits, the jury was able to view as

substantive evidence the video recording of events leading up to the explosions, and

to decide, along with other evidence, whether plaintiff had established proximate

cause. This evidence, taken in the light most favorable to plaintiff, was sufficient to

enable the jury to find that the gas dispenser nozzle used in refueling the

Championship II failed to shut-off after the tank reached maximum capacity, causing

excess gasoline to spill out into the surrounding water. Further, from this evidence

the jury could find that a vapor cloud appeared shortly before the excess gasoline

spilled into the water and then ignited, resulting in two explosions and a fire which

engulfed the stern of the Championship II and killed Nathan Coppick. On this record

there was sufficient evidence of negligence per se, including evidence of proximate

cause, to survive a motion for JNOV and, alternatively, a new trial. See Trantham,

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___ N.C. App. at ___, 745 S.E.2d at 331 (citations and quotations omitted).

Defendant’s arguments are overruled.

Jury Instructions

Based on our preceding analysis, we overrule defendant’s contentions that the

trial court erred by instructing the jury on negligence and negligence per se. However,

while we disagree with defendant, we nevertheless review defendant’s argument that

the trial court erred in denying its request for an instruction on insulating negligence.

On appeal, this Court considers a jury charge
contextually and in its entirety. The charge will be held to
be sufficient if it presents the law of the case in such
manner as to leave no reasonable cause to believe the jury
was misled or misinformed. The party asserting error bears
the burden of showing that the jury was misled or that the
verdict was affected by an omitted instruction. Under such
a standard of review, it is not enough for the appealing
party to show that error occurred in the jury instructions;
rather, it must be demonstrated that such error was likely,
in light of the entire charge, to mislead the jury.

Boykin v. Kim, 174 N.C. App. 278, 286, 620 S.E.2d 707, 713 (2005) (citations and

quotations omitted).

An efficient intervening cause is a new proximate cause
which breaks the connection with the original cause and
becomes itself solely responsible for the result in question.
It must be an independent force, entirely superseding the
original action and rendering its effect in the causation
remote. It is immaterial how many new elements or forces
have been introduced, if the original cause remains active,
the liability for its result is not shifted.

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Opinion of the Court

Hairston, 310 N.C. at 236, 311 S.E.2d at 566—67 (citation omitted). “Insulating

negligence means something more than a concurrent and contributing cause. It is

not to be invoked as determinative merely upon proof of negligent conduct on the part

of each of two persons, acting independently, whose acts unite to cause a single

injury.” Id. at 236, 311 S.E.2d at 566 (citations omitted).

Defendant contends it presented sufficient evidence as to the negligence of

others to support giving the instruction on insulating negligence. Defendant argues

that its evidence showed, for example: that the owner/operator of the Championship

II allowed the vessel to be refueled with the boat systems on; that the marina officers

instructed marina employees to use the fuel dispensing nozzles containing hold-open

latches; that the marina cashier failed to oversee the fuel dispensing process; and

that the marina changed fuel dispensing nozzles and failed to test them.

While defendant points to conduct noted above which may have contributed to

the cause of the 10 June 2008 explosion, defendant fails to direct our attention to

conduct which reasonably may have been viewed as “a new proximate cause which

breaks the connection with the original cause and becomes itself solely responsible

for the result in question,” id. at 236, 311 S.E.2d at 566, that is, the explosion and fire

that led to the death of Nathan Coppick. From our independent review of the record,

we are unable to find any conduct that supersedes the original conduct of defendant

where such conduct constituted a violation of a safety statute and which proximately

caused the death of Nathan Coppick. See id. at 236, 311 S.E.2d at 566—67.

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Therefore, we hold that the trial court properly denied defendant’s request for an

instruction on insulating negligence. Accordingly, defendant’s argument is

overruled.

Evidentiary Rulings

Defendant argues that the trial court erred in evidentiary rulings and other

rulings, resulting in a manifest abuse of discretion. Defendant contends the trial

court erred in allowing witnesses to testify to damages he or she sustained as a result

of Nathan Coppick’s death, allowing two witnesses to “vouch for other testimony that

[had] been given,” admitting a photograph of Nathan Coppick’s body where it was

found after the explosion, and overruling defendant’s objection to plaintiff’s cross-

examination of defendant’s president. While defendant acknowledges that, standing

alone, the contested admissions would likely not amount to reversible error,

defendant nevertheless contends that the cumulative effect of these rulings was

prejudicial. Defendant further argues that the admission of the contested evidence

resulted in confusion of the jury and prejudice to defendant requiring a new trial.

However, other than defendant’s assertions, we see no evidence in the record

that the trial court’s rulings resulted in confusion of the jury and/or undue prejudice

to defendant such that a new trial is required. Accordingly, we overrule this

argument.

Prejudgment Interest

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Opinion of the Court

Defendant argues that the trial court erred in its award of prejudgment

interest based on the full amount of compensatory damages awarded, $1,500,000.00.

Defendant contends prejudgment interest should be calculated based only on the

portion of compensatory damages for which defendant is responsible. We disagree.

As defendant concedes, our Supreme Court previously addressed this issue in

Brown v. Flowe, 349 N.C. 520, 507 S.E.2d 894 (1998). In Brown, the Court directly

rejected the defendant’s argument that a trial court should subtract the amount of

settlements received from joint tortfeasors from the total compensatory award before

calculating the prejudgment interest. Id. at 526, 507 S.E.2d at 898. The Court

reasoned that this proposed method was “prohibited by the plain language of

N.C.G.S. § 24–5, which requires calculation of prejudgment interest on the entire

compensatory-damages verdict.” Id.

To calculate prejudgment interest when judgment is rendered against one, but

not all, tortfeasors, our Supreme Court outlined the following process:

(1) adding prejudgment interest at the legal rate to the
entire compensatory damages award as N.C.G.S. § 24–5(b)
requires, (2) adding interest at the legal rate to the
settlement sum from the date of settlement until the date
of judgment, and (3) subtracting the second calculation
from the first to determine the amount of compensatory
damages [the] defendant owes to [the] plaintiff.

Id. at 527, 507 S.E.2d at 898; see also Boykin, 174 N.C. App. at 288, 620 S.E.2d at 714

(holding that pre-judgment interest is to be awarded before a set-off is given for the

settlement amount).

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Opinion of the Court

Here, the trial court applied prejudgment interest at a rate of eight percent

(8%) per annum to the total $1,500,000.00 compensatory award beginning 9 June

2010, the date the claim was filed, through 11 April 2013, the date of entry of

judgment, less any credits to which defendant may be entitled by law. In a post-trial

hearing, the trial court explained that to calculate the share of the total award due

from each party, the trial court would follow the following formula: “[First,] [a]dding

prejudgment interest at the legal rate to the entire compensatory damages. . . .

[Second], adding interest at the legal rate to the settlement sum from the date of

settlement until the date of judgment and [third,] subtracting the second calculation

from the first." This is in accordance with the formula espoused by our Supreme

Court in Brown. Accordingly, we overrule defendant’s argument and find no error in

the judgment and award of the trial court.

NO ERROR.

Chief Judge McGEE and Judge STROUD concur.

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