Sawyers v. Farm Bureau Insurance

STEELMAN, Judge, dissenting.

I respectfully dissent from the majority opinion.

I. Statutory Background

The parties acknowledge that the provisions of N.C. Gen.Stat. § 20-279.21(b)(3) apply to this case. These provisions are mandatory and are a part of every policy of motor vehicle insurance containing uninsured motorist coverage issued in North Carolina. The portions of that statute relevant to this appeal are as follows:

A provision that the insurer shall be bound by a final judgment taken by the insured against an uninsured motorist if the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist by registered or certified mail, return receipt requested, or in any manner provided by law; provided however, that the determination of whether a motorist is uninsured may be decided only by an action against the insurer alone. The insurer, upon being served as herein provided, shall be a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name.

N.C. Gen.Stat. § 20-279.21(b)(3) (2004). The 1999 action filed in Brevard County, Florida, sued the alleged tortfeasor, Bembow, and *192also sued Farm Bureau directly based upon plaintiff's insurance contract with Farm Bureau, seeking to recover damages directly from Farm Bureau and seeking a determination that Bembow, the operator of the other vehicle, was uninsured. This action was in direct contravention of the provisions of N.C. Gen.Stat. § 20-279.21(b)(3), as set forth above.5

II. Issues Presented

The majority opinion holds that based upon the first sentence of N.C. Gen.Stat. § 20-279.21(b)(3) Farm Bureau was bound by the judgment of the Circuit Court of Brevard County, Florida, and reverses the trial court's granting of summary judgment in favor of Farm Bureau. On the particular, undisputed, and peculiar facts of this case, I would affirm the trial court based upon four theories, each which was pled before the trial court and argued before this court: (1) Farm Bureau was not a party to the action at the time the judgment was entered; (2) the statute of limitations had expired before plaintiff instituted this action; (3) Farm Bureau is not bound by the doctrine of res judicata; and (4)equitable estoppel.

III. Farm Bureau was not a Party to the Florida Action

The majority opinion holds that for an insurer to be bound by a judgment in an action between its insured and an uninsured motorist, all that is required is that the insurer be served with a copy of the summons and complaint, and that it is not necessary for the insurer to be a party to the action.

In construing a statute, this Court is required to look at the entire statute, and construe it in pari materia, giving effect, if possible, to all provisions contained in the statute. Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004) (noting that "this Court does not read segments of a statute in isolation. Rather, we construe statutes in pari materia giving effect, if possible, to every provision."); State v. Tew, 326 N.C. 732, 739, 392 S.E.2d 603, 607 (1990) (holding that "[a]ll parts of the same statute dealing with the same subject are to be construed together as a whole ... and [individual expressions] be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit." (internal citations omitted)). The second sentence of N.C. Gen.Stat. § 20-279.21(b)(3) makes it clear that the General Assembly intended that the insurer be a party to the action between its insured and the uninsured motorist and fully participate in the litigation. The uninsured motorist carrier "shall be a party to the action" and has the option of defending the action either in the name of the uninsured motorist or in its own name.

Upon being served with a copy of the summons and complaint in the Florida action, Farm Bureau moved to dismiss for lack of personal jurisdiction. Plaintiff and Farm Bureau then filed a joint motion seeking the dismissal of Farm Bureau from the Florida lawsuit, stating as the basis for the motion that "the plaintiff intends to re-file the action in a court of competent jurisdiction in North Carolina." The reference to North Carolina as a court of competent jurisdiction implicitly states that the Florida court lacked competent jurisdiction. If this were not so, there would have been no reason to use the words "in a court of competent jurisdiction." The motion further stated that it was brought pursuant to Fla. R. Civ. Pro. 1.420(1)(1) (2004) and N.C. Gen.Stat. § 1A-1, Rule 41(a)(1) (2004). This motion, signed by plaintiff's Florida counsel, constitutes an acknowledgment by plaintiff that the courts of Florida lacked jurisdiction over Farm Bureau.6

Thus, while plaintiff served Farm Bureau with a copy of the summons and complaint in *193the Florida action as dictated by the statute, Farm Bureau was not a party to the action as required by N.C. Gen.Stat. § 279.21(b)(3) because the Circuit Court of Brevard County, Florida did not have jurisdiction over Farm Bureau. It is fundamental that any judgment rendered against a party over which a court has no jurisdiction is void. Southern Athletic/Bike v. House of Sports, Inc., 53 N.C.App. 804, 805-6, 281 S.E.2d 698, 699 (1981). As the Circuit Court of Brevard County, Florida had no jurisdiction over Farm Bureau, Farm Bureau was not a party to the action and cannot be bound by that court's judgment.

The majority argues that affirming the trial court would result in plaintiff having "no venue for seeking recovery from Farm Bureau." I disagree with this conclusion. By consenting to the dismissal of Farm Bureau from the Florida action, plaintiff abandoned her rights to proceed in that forum. Clearly, at the time the Florida action was dismissed plaintiff had a viable cause of action against Farm Bureau in the North Carolina courts. However, despite plaintiff's representations that she would be filing an action in North Carolina, none was filed until after the expiration of the statute of limitations. Plaintiff's unfortunate position in this matter is due to her own actions.

IV. Statute of Limitations

Thomas v. Washington holds that there is a three year statute of limitations for asserting a claim against an uninsured motorist carrier. 136 N.C.App. 750, 754, 525 S.E.2d 839, 842 (2000). This statute of limitations begins to run on the date of the accident. In this matter, the accident took place on 10 August 1996. The order dismissing Farm Bureau from the Florida action was entered on 1 October 1999. Had plaintiff instituted an action against Farm Bureau in North Carolina within one year from the date of dismissal of the Florida action, it would have been timely filed. N.C. Gen.Stat. § 1A-1, Rule 41(a)(2). However, plaintiff first filed a complaint against Farm Bureau in North Carolina on 11 April 2002 and then voluntarily dismissed that complaint on 12 December 2002. The action before this Court was instituted 23 June 2003, over three and one-half years after the dismissal of Farm Bureau from the Florida action. Plaintiff's claims against Farm Bureau are barred by the applicable statute of limitations.

V. Res Judicata

Under res judicata, also known as claim preclusion, "a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them." Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). It precludes relitigation of issues that were determined in the prior act as well as litigation of issues that should have been raised in support or defense of the claim raised in the prior action. Id. at 436, 349 S.E.2d at 561 (Billings, J., concurring). Under the companion doctrine of collateral estoppel, also referred to as issue preclusion, "parties and parties in privity with them-even in unrelated causes of action-are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination." King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973). For either doctrine to apply, the prior action must have been a final judgment on the merits in a court of competent jurisdiction. McInnis, 318 N.C. at 428, 349 S.E.2d at 556-57; King, 284 N.C. at 355, 200 S.E.2d at 804-5.

Res judicata and collateral estoppel can be used defensively or offensively. A defendant can raise the defense of res judicata to bar a plaintiff from litigating a claim that was or should have been raised in a prior action between the parties. Conversely, a plaintiff can offensively bind a defendant to a judgment obtained in a prior action. Traditionally, the courts in North Carolina limited the application of the doctrines by requiring "mutuality of estoppel," that is, both the parties involved must be bound by the prior judgment. McInnis, 318 N.C. at 429, 349 S.E.2d at 557. In McInnis, the North Carolina Supreme Court held that it would no longer require mutuality of estoppel where collateral estoppel is used defensively; that is, "as long as the party to be collaterally estopped had a full and fair opportunity to litigate the issue in the earlier action," there *194is no requirement of mutuality. Id. at 432-35, 349 S.E.2d at 559-60. However, the mutuality requirement still applies when collateral estoppel is used offensively and for all applications of res judicata.7

In the present case, plaintiff seeks to employ the doctrine of res judicata offensively to bind Farm Bureau to the Florida judgment. Since the statute of limitations has expired-barring plaintiff from instituting a new action against Farm Bureau-plaintiff asserts that Farm Bureau is bound by the Florida judgment and that Farm Bureau is now barred from raising any issues that were actually litigated or could have been litigated in the Florida action. Under the common law, plaintiff would not be able to assert that res judicata applies because the requirements for its application have not been met: (1) Farm Bureau was not a party or in privity with a party to the action at the time the judgment was entered; and (2) the Florida court was not a court of competent jurisdiction because it did not have personal jurisdiction over Farm Bureau.

However, plaintiff attempts to bind Farm Bureau to the Florida judgment by arguing that N.C. Gen.Stat. § 20-279.21(b)(3) allows the application of offensive res judicata so long as Farm Bureau was provided with service of process, thereby superceding the common law requirements for the application of the doctrine. A more reasonable construction of the statute is that it is merely an extension of the common law doctrines of res judicata and collateral estoppel. It is evident that the statute requires Farm Bureau to be a party in order to be bound by a judgment, just as the common law would require. This statutory requirement is intended to reiterate the common law understanding of res judicata and the need for mutual estoppel. It does not supercede the common law and allow the mere providing of notice of the action to be sufficient to bind a person as a party. Since Farm Bureau was not a party at the time the judgment was entered, and the Florida court did not have jurisdiction over Farm Bureau, neither res judicata nor N.C. Gen.Stat. § 20-279.21(b)(3) can bind Farm Bureau to the Florida judgment.

VI. Plaintiff is Estopped from Asserting that Farm Bureau is Bound by the Florida Judgment

The doctrine of equitable estoppel applies:

when any one, by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts exist, and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.

Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 17, 591 S.E.2d 870, 881 (2004) (internal citations omitted).

In the Florida lawsuit, plaintiff and Farm Bureau filed a joint motion for dismissal, acknowledging that the Circuit Court of Brevard County, Florida had no jurisdiction over Farm Bureau and requesting that Farm Bureau be dismissed as a party to that action. The motion for dismissal stated: "the plaintiff intends to re-file the action in a court of competent jurisdiction in North Carolina."

Based upon this representation, Farm Bureau rightfully assumed its involvement in the Florida lawsuit was completely over. However, plaintiff now seeks to bind Farm Bureau with the judgment from the Florida court after consenting to the dismissal of Farm Bureau as a party. I would hold that Farm Bureau reasonably relied upon the express representations of plaintiff that her claims against Farm Bureau would be litigated at a later date in North Carolina. Based upon this reasonable reliance, Farm Bureau took no further action in the Florida court. It would be unconscionable to allow plaintiff to make these representations to the Florida court and to Farm Bureau, and then assert *195in this case that Farm Bureau is bound by the Florida judgment. Based upon the particular facts of this case, I would hold that plaintiff is estopped from asserting that Farm Bureau is bound by the Florida judgment.

VII. Conclusion

I would affirm the trial court's granting of summary judgment against plaintiff in favor of Farm Bureau. Because I would affirm this ruling, it is not necessary to address plaintiff's remaining assignments of error.

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6. Plaintiff explicitly acknowledged that the courts of Florida lacked jurisdiction over Farm Bureau in its correspondence with Farm Bureau's counsel dated 3 September 1999. Plaintiff's Florida counsel stated in that letter that "it appears that the Florida Court lacks jurisdiction over the person of the Defendant North Carolina Farm Bureau Mutual Insurance Company," and that plaintiff "intends to re-file in North Carolina."

7. The Court in McInnis, in discussing the national trend to abandon the requirement of mutuality for defensive applications of collateral estoppel, notes that abandoning the requirement of mutuality for res judicata would accomplish little. "Because a plaintiff is generally regarded as having a separate cause of action against each obligor even when the subject matter of the claims is identical, the requirement of identity of cause of action would render res judicata unavailable to one not a party or privy in any case." 318 N.C. at 432, n. 4, 349 S.E.2d at 559.

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