D&B Marine

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-546

Filed 21 March 2023

Mecklenburg, No. 15-CVS-20506

D&B MARINE, LLC, a Rhode Island Limited Liability Company, Plaintiff,

v.

AIG PROPERTY CASUALTY COMPANY f/k/a CHARTIS PROPERTY CASUALTY
COMPANY, Defendant.

Appeal by Plaintiff from final Judgment entered 25 March 2022 by Judge Eric

L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals

21 January 2023.

The Sumwalt Group, by Vernon Sumwalt, and Killeen & Stern, PC, by Robert
J. Killeen (pro hac vice) and Robert C. Stern (pro hac vice), for Plaintiff-
Appellant.

Cranfill Sumner LLP, by Steven A. Bader, and Steptoe & Johnson LLP by
Roger E. Warin (pro hac vice) and John F. O’Connor (pro hac vice), for
Defendant-Appellee.

RIGGS, Judge.

Plaintiff, D&B Marine, LLC, appeals from a partial summary judgment and a

judgment entered after a jury trial on breach of contract and negligence claims with

Defendant, AIG Property Casualty Company. Plaintiff claims that Mecklenburg

Superior Court Judge Eric Levinson erred when he granted partial summary

judgment finding that Plaintiff’s claims for common law bad faith and Unfair or
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

Deceptive Trade Practices (UDTP) under N.C. Gen. Stat § 75-1.1 were untimely.

Plaintiff also claims that the trial court erred when it denied Plaintiff’s request for a

jury instruction on equitable estoppel after allowing Defendant to include the

affirmative defense of a policy exclusion related to rot and deterioration in the jury

instruction and on the jury verdict form. Finally, Plaintiff claims the trial court erred

when it gave a jury instruction regarding whether the sinking of the yacht was a new

“occurrence” rather than one of the two covered occurrences.

After review, we affirm Judge Levinson’s grant of partial summary judgment.

We affirm the trial court ruling denying the requested jury instruction for equitable

estoppel. Finally, we dismiss the final argument because Plaintiff failed to properly

preserve the issue for appellate review.

I. Procedural & Factual History

This claim involves the tale of the unluckiest yacht and the series of

unfortunate events that she encountered. The tale begins in January of 2013 when

Plaintiff renewed an insurance policy with Defendant to provide coverage for its

seventy-two-foot, Goetz custom yacht, Fearless. Fearless was designed by the

renowned naval architect Eric Goetz, who also designed the 1992 America’s Cup

winner, America3. The insurance policy covered damages to, Fearless, and her

contents “caused by an occurrence which happens within the policy period.” The

policy term began 1 January 2013 and was scheduled to run until 1 January 2014.

-2-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

Only two days after Plaintiff renewed this yacht insurance policy, Fearless had

her first fateful encounter. While sailing off the coast of St. Thomas in the U.S. Virgin

Islands, Fearless struck a submerged rock. The encounter caused significant damage

to her hull, and she had to be towed to a shipyard in St. Thomas for repairs.

Towards the end of January 2013, Plaintiff notified Defendant of this

unfortunate encounter with a submerged rock, and Defendant accepted coverage for

the claim. The parties vigorously dispute whether Plaintiff or Defendant was

responsible for selecting the repair facilities for the yacht and whether Defendant

should pay for repairs directly or reimburse Plaintiff for the repairs. However, the

parties agree that Defendant issued payments to Plaintiff to cover repair expenses.

In early April 2013, the parties agreed that Fearless should be moved from St.

Thomas to complete the repairs; however, the parties disagreed on where the repairs

should be performed and who should make the decision. Eventually, the decision was

made to move Fearless to the Rybovich shipyard in West Palm Beach, Florida, to

complete the repairs. Before she left on this voyage, her captain discovered a crack

in her hull along the aft section of her keel, in an area that had previously been

repaired. Notwithstanding this crack, Fearless set sail for West Palm Beach, Florida.

During this voyage on 13 March 2013, Fearless had her second unfortunate

event. While she was underway sailing toward the mainland, her previously repaired

rudder fell off. Plaintiff notified Defendant of these additional damages, and

Defendant accepted coverage for the claim to repair the rudder, again. Once Fearless

-3-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

finally arrived at the Rybovich shipyard in West Palm Beach, Defendant was

concerned that the damage from the rock encounter had caused water to seep into

the hull resulting in moisture intrusion into the inner balsa, which could lead to long-

term decay. Because of this concern, Rybovich hired a company, Fosters, to evaluate

the damage to the hull. Fosters took a core sample of the hull on 3 July 2013 and

recommended removing a six-foot-by-six-foot section of the hull because its balsa core

was moist. This work was never performed, but it is unclear on this record why the

work was not done. Plaintiff argued at trial that the failure to remove and replace

this moist balsa core ultimately led to the untimely sinking of Fearless. Defendant

argued that the responsibility to contract for and oversee repairs for Fearless was the

responsibility of Plaintiff; it was only responsible for paying for the repairs.

Ultimately, the disputes between the parties regarding responsibility for the

repairs of this unlucky yacht and a new issue—whether she needed a captain on

board during her repairs—led Defendant to cancel the insurance policy on 6

September 2013, while Fearless was still sitting in Rybovich’s yard waiting to be

repaired. However, Defendant acknowledged that it would remain responsible for

the cost of the repairs associated with the 3 January 2013 rock encounter and the 13

April 2013 rudder incident. Eventually, Plaintiff moved Fearless to Cracker Boy

shipyard and completed the repairs towards the end of 2013.

We include the next portion of Fearless’ tale because it is the story that the

jury considered in deciding the issues that bear on this appeal. While Fearless had

-4-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

at least one uneventful voyage after the repairs were complete, it was not long until

she has another unfortunate encounter. In October of 2014, the unlucky Fearless

was docked near New Brunswick, Georgia, when she was struck by lightning and

again suffered substantial damage. Only a few days before this lightning strike,

Plaintiff had executed a new insurance policy for Fearless with a separate insurance

company, Great Lakes Reinsurance (“Great Lakes”). After the lightning strike,

Fearless motored to Savannah, Georgia, where she again underwent repairs,

primarily to the electrical systems. The repairs for these damages were not completed

until early 2016. Great Lakes paid for most of the damages associated with this

lightning strike.

While Fearless was being repaired after the lightning strike, Plaintiff filed this

suit against Defendant in Mecklenburg County Superior Court for a single cause of

action, breach of contract. The original suit was based upon failure to pay the full

value of the insured loss for the damage associated with the 3 January 2013 rock

encounter.

When the repairs from the lightning strike were complete, Fearless embarked

on her final fateful voyage. In the early morning of 9 March 2016, she set sail from

Georgia and headed to Charleston, South Carolina. Early that afternoon, Fearless

began taking on water. The captain, Scott Sale, dropped anchor and called for Coast

Guard assistance. The Coast Guard worked diligently into the night with Captain

Sale attempting to reverse the influx of water and save Fearless. In the early

-5-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

morning hours, after all electronics on Fearless had failed and her interior was knee-

deep with water that had a film of acid floating on it, the Coast Guard finally ordered

the captain and his mate off poor Fearless. Fearless eventually sank into the

Intracoastal Waterway. She was later found several nautical miles from where she

was anchored with her massive keel missing.

After the 2016 demise of Fearless, Great Lakes filed a claim against Plaintiff

in Federal Court, Western District of North Carolina, regarding Plaintiff’s insurance

claim for the total loss of Fearless; Plaintiff made a counterclaim for breach of

contract, bad faith, and UDTP against Great Lakes on 4 August 2016. In Plaintiff’s

counterclaim with Great Lakes, it asserted that the total loss of Fearless was because

she ran aground on 9 March 2016, and not because of the earlier damage from 2013.

In its brief for that suit, Plaintiff said “the Coast Guard noticed Fearless ‘bounce’ as

if striking bottom.” Further, Plaintiff stated that in February 2016, after the repairs

on Fearless were completed, it conducted a sea trial to ensure her seaworthiness and

Fearless successfully completed the sea trial without any evidence of damage or

residual effects of the January 2013 incident.

On 30 August 2017, Plaintiff amended its complaint in this action to add a

cause of action for negligence, alleging that Defendant had breached its duty to

ensure that all repairs were properly performed, and the vessel was seaworthy.

Defendant filed an answer to the amended complaint on 20 November 2017. The trial

-6-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

court stayed the action in this claim on 30 January 2018, pending the resolution of

the federal case with Great Lakes.

Almost two years later, on 5 September 2019, Plaintiff moved the court for a

motion to amend the previously amended complaint under Rule 15 of the North

Carolina Rules of Civil Procedure to add claims for common law bad faith and UDTP;

Defendant opposed the motion. Superior Court Judge Louis Trosch held a hearing

on the motion. During the hearing, Judge Trosch stated that the strongest argument

to deny the motion to amend was futility. The transcript of the hearing does not

include any analysis of whether the amendment would relate back per Rule 15(c) of

the North Carolina Rules of Civil Procedure. Since the parties disputed whether the

claim was controlled by maritime law or North Carolina law, Judge Trosch indicated

that it was not clearly evident if the amendment would be futile. Judge Trosch

allowed the amendment, while noting that if the amendment was futile, the issue

could be addressed at the motion to dismiss stage or at summary judgment.

Additionally, in the written order, Judge Trosch stated the finding was based upon

the liberal standard of Rule 15(a) of the North Carolina Rules of Civil Procedure. The

written order did not address the relation back issue found in Rule 15(c).

Plaintiff filed their second amended complaint on 22 October 2019. Defendant

filed its answer to this amended complaint on 20 December 2019. In the response,

Defendant included twenty-seven affirmative defenses, including statute of

limitations and terms of the policy.

-7-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

Over a year later, in February and March 2021, both parties moved for

summary judgment. In its motion for partial summary judgment, Defendant argued

that the claims for common law bad faith and UDTP were untimely. Additionally,

Defendant argued that if the claims were timely, the court should still grant summary

judgment because the claims are not valid under maritime law. In its response,

Plaintiff argued that its original complaint gave sufficient notice of the events or

transactions which produced the claims of common law bad faith and UDTP;

therefore, the amended complaint should relate back to the date of the original

complaint making the claims timely.

On 26 March 2021, Superior Court Judge Eric Levinson1 held a virtual hearing

on the motions for summary judgement; however, there is no transcript of this

hearing in the record. Judge Levinson granted partial summary judgment in favor

of Defendant finding that the original pleadings did not give notice of the

transactions, occurrences, or series of transactions or occurrences to be proven in the

amended pleading. Therefore, the bad faith and UDTP claims did not relate back

under Rule 15(c) of the North Carolina Rules of Civil Procedure and were untimely.

In that order, filed 27 May 2021, Judge Levinson indicated that the parties agree that

Judge Trosch did not rule on “whether UDTPA and bad faith claims would ‘relate

back’ under Rule 15 of the N.C. Rules of Civil Procedure notwithstanding that

1 The Honorable Judge Eric L Levinson was designated to oversee the rest of this case under
Rule 2.1 of the General Rules of Practice for Superior and District Courts on 3 December 2020.

-8-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

[c]ourt’s permission to amend the complaint to add the extra-contractual claims.”

Judge Levinson did not address the additional grounds regarding the conflicts of law

issues or otherwise make any rulings implicating Judge Trosch’s Rule15(a) order.

On 10 June 2021, Plaintiff moved for reconsideration of the order arguing that

when Judge Trosch granted the motion to amend, he had ruled that the bad faith and

UDTP claims relate back under Rule 15(c). Judge Levinson denied the motion for

reconsideration on 7 July 2021. Plaintiff timely noticed appeal on this issue on 27

July 2021 and then filed an unopposed motion to dismiss the appeal without prejudice

on 20 December 2021.

The case proceeded to a jury trial on claims of breach of contract and negligence

as to whether Plaintiff was entitled to coverage from Defendant under its 2013 Policy

for the 2016 sinking of Fearless. The trial judge held a jury charge conference with

the parties that lasted from 2 March until 3 March 2022 and included a series of

emails and an unrecorded phone conference in the evening on 2 March 2022. During

the charge conference, the trial court allowed Defendant to add an affirmative

defense, related to a policy exclusion for damage associated with gradual or sudden

loss from deterioration, to the jury instructions and the verdict form. Plaintiff then

requested that it be allowed to include a jury instruction for equitable estoppel

because Defendant should not be allowed to rely on a policy exclusion for

deterioration if its independent adjuster knew about the deterioration but did not

notify Plaintiff. The trial judge denied that request.

-9-
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

At the close of the charge conference, Plaintiff made one objection to the jury

instructions. Plaintiff requested a directed verdict on the “anti-concurrent clause

exclusion” in the jury charge and on the verdict sheet and objected to the submission

of the charge to the jury. The anti-concurrent exclusion clause, stated in Issue 1B on

the verdict form, asked the jury to decide if the sinking of Fearless “was also

attributable to or resulted directly or indirectly, in whole or in part or in combination

with any other cause or causes, from deterioration or rot of the balsa core in the hull

of S/V Fearless.” Plaintiff argued that Defendant was equitably estopped from

asserting this contract exclusion because any deterioration was caused by the

misrepresentations of Defendant’s independent contractor when they did not notify

Plaintiff of the moist balsa in the hull. Neither party objected to the jury instructions

after they were given.

Issue 1A on the jury form asked the jury: “Was the total loss of the S/V Fearless

on or about March 9, 2016, caused by an ‘occurrence’ as that term is defined in the

defendant’s insurance policy?” The jury answered no to this question.2 The form

instructed the jury not to answer any remaining questions if they answered no on the

first issue. The trial court entered a judgment based upon this jury verdict on 23

March 2022.

2 Because this jury found that the sinking was not caused by one of the 2013 occurrences and
there was no decision in the earlier suit on whether she ran aground in 2016, the ultimate cause of
Fearless’ demise will forever remain a mystery.

- 10 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

Plaintiff properly noticed appeal on 22 April 2022 from that judgment.

II. Analysis

Plaintiff appeals Judge Levinson’s grant of partial summary judgment that

Plaintiff’s claims for bad faith and UDTP were untimely. Additionally, Plaintiff

assigns two errors to the jury instructions. First, Plaintiff argues that the trial court

erred when it denied Plaintiff’s request for an equitable estoppel instruction after it

allowed Defendant to include a specific policy exclusion in the jury instructions and

verdict form. Second, Plaintiff argues that the trial court erred when instructing the

jury that the sinking of Fearless had to be, according to Plaintiff’s telling, a new

occurrence rather than the result of one of the two admitted occurrences that

happened during the policy term.

A. Partial Summary Judgment

First, Plaintiff argues that Superior Court Judge Levinson erred when he

granted a partial summary judgment in favor of Defendant on the issues of common

law bad faith and UDTP when another Superior Court judge had granted Plaintiff’s

Motion for Leave to Amend their pleading to add these claims. We disagree.

1. Standard of Review

The parties present conflicting standards of review for this issue. Plaintiff asks

this Court to consider whether the trial court abused its discretion when Judge

Levinson held that the amendment allowed by Judge Trosch did not “relate back” to

the original amended pleading. See Calloway v. Motor Co., 281 N.C. 496, 501, 189

- 11 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

S.E.2d 484, 488 (1972) (noting the standard of review for motions to amend is abuse

of discretion).

Defendant argues that this Court should review the summary judgment order

by Judge Levinson de novo. See Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382,

385 (2007) (noting the standard of review for summary judgment is de novo).

Judge Trosch’s order on 28 October 2019 was silent on the issue of whether the

new claims of common law bad faith and UDTP would “relate back” to the amended

complaint under Rule 15(c) of the North Carolina Rules of Civil Procedure. Further,

in the order granting partial summary judgment, Judge Levinson clearly stated that

the parties agree that Judge Trosch did not rule whether the bad faith and UDTP

claims would “relate back” under Rule 15(c).3 Therefore, because Judge Trosch did

not resolve the issue, both parties conceded as much, and the ruling actually appealed

is Judge Levinson’s grant of partial summary judgment, we apply de novo review to

that order.

2. Analysis

The well-established rule in North Carolina is that no appeal lies from one

Superior Court judge to another; and that ordinarily, one judge may not modify,

overrule, or change the judgment that another Superior Court judge previously made

3 In their motion for reconsideration, Plaintiff denies agreeing that Judge Trosch did not rule
on the issue of whether the amendment related back but there is no transcript of that hearing in the
record.

- 12 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

in the same action. Calloway, 281 N.C. at 501, 189 S.E.2d at 488. However,

modifications or changes to an interlocutory order, such as an order granting pleading

amendment, are proper where (1) the order is discretionary and (2) there has been a

change of circumstances. Stone v. Martin, 69 N.C. App. 650, 652, 318 S.E.2d 108, 110

(1984). This rule, known as the Calloway rule, protects the integrity of the court

system, and we, therefore, consider the circumstances in the matter carefully so as

not to disturb the integrity of this rule. State v. Woolridge, 357 N.C. 544, 549-50, 592

S.E.2d 191, 194 (2003).

Plaintiff argues that this Court should apply the Calloway rule to protect

Judge Trosch’s ruling, which allowed the amendment, from Judge Levinson’s

summary judgment ruling that dismissed the claims added by the amendment. In

this appeal, Plaintiff argues that because Judge Trosch granted the motion to amend,

the amendment “automatically” relates back based upon the use of the word “deemed”

in the language of Rule 15(c). N.C. R. Civ. P. 15(c) (2022). However, the plain

language of the statute and the case law, do not support the argument that the

amendment automatically relates back. Further, in this case, we hold that the

Calloway rule is not applicable because Plaintiff waived a Calloway analysis by

encouraging Judge Trosch to grant the motion to amend its pleading while reserving

resolution regarding the validity of the new claim for a later hearing and then inviting

Judge Levinson to consider the issue of relation back.

- 13 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

In a Request for Motion to Amend under Rule 15(a), judges construe the rule

liberally to allow amendments where the opposing party will not be materially

prejudiced. Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C. App. 160,

165, 510 S.E.2d 690, 694 (1999). This Court has determined that the proper reasons

for denying a motion to amend include undue delay by the moving party, unfair

prejudice to the nonmoving party, bad faith, futility of amendment, and repeated

failure to cure defects by previous amendment. Bob Timberlake Collection, Inc. v.

Edwards, 176 N.C. App. 33, 45, 626 S.E.2d 315, 325 (2006).

Separately, under Rule 15(c), a claim asserted in an amended pleading is

deemed to have been interposed at the time the claim in the original pleading was

interposed, unless the original pleading does not give notice of the transactions,

occurrences, or series of transactions or occurrences, to be proved pursuant to the

amended pleading. N.C. R. Civ. P. 15(c) (2022) (emphasis added). Whether an

amended complaint will relate back to the original complaint does not depend upon

whether it states a new cause of action but instead upon whether the original

pleading gave defendants sufficient notice of the proposed amended claim. Bowlin v.

Duke University, 119 N.C. App. 178, 184, 457 S.E.2d 757, 761 (1995). This Court has

held that a motion to amend is not deemed to have been interposed at the time of the

original pleading if the original pleading does not give notice of the transaction,

occurrences, or series of transactions, to be proved pursuant to the amended pleading.

- 14 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 546, 589 S.E.2d 391, 395-96

(2003).

At the Motion to Amend hearing, the parties agreed that undue delay, bad

faith, and repeated failure to cure defects did not apply to the facts of the proposed

amendment. Defendant argued that allowing the amendment would be unfairly

prejudicial because the case had been stayed for such a long time. Judge Trosch did

not find that allowing the amendment would be unduly prejudicial because both

parties agreed to the stay. Defendant also argued that the amendment was futile

because Plaintiff was applying the wrong law to the case. Plaintiff argued that per

Wilburn Boat Co. v. Fireman's Fund Insurance Co., the regulation of marine

insurance belongs to the States; therefore, its claims for common law bad faith and

UDTP, which flow from the breach of contract claim for the 3 January 2013

occurrence, are allowed by North Carolina state law. 348 U.S. 310, 321, 99 L. Ed.

337, 346 (1955). Conversely, Defendant argued that per Wilburn Boat Co., state law

only applies to maritime insurance contracts in the absence of an applicable federal

admiralty law; since a claim for UDTP conflicts with admiralty law, it is prohibited.

Id. at 320, 99 L. Ed. at 346; See also Delta Marine, Inc., v. Whaley, 813 F. Supp. 414,

417 (E.D.N.C. 1993) (dismissing a claim under the North Carolina UDTPA because

it conflicts with requirements for awarding punitive damage under admiralty law).

Further, Defendant argued that the standard for bad faith in North Carolina is lower

than the punitive threshold under admiralty law, so the bad faith claim similarly

- 15 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

fails. While Plaintiff argued that its amendment would not be futile, it proposed that

the issues “may be best for a 12(b)(6) hearing where we can have a full lecture on

admiralty law versus state law.” Without resolving the conflicts of law issue, Judge

Trosch stated that it was not clearly evident whether the amendment would be futile.

The transcript of the motion to amend hearing does not include any discussion

of whether the original (amended) complaint dated 24 August 2017, which only

included claims for breach of contract and negligence, gave notice of the transaction,

occurrences, or series of transaction or occurrences, to be proved in the second

amended complaint which included additional claims for bad faith and UDTP based

upon the sinking of Fearless. Additionally, North Carolina Rules of Civil Procedure

9(b) and (k) establish special pleading requirements for fraud and punitive damages.

This Court has held that when a claim requires unique factual allegations, those

allegations must be present in the original complaint to meet the requirements of

Rule 15(c) so that the amended complaint relates back to the original complaint.

State Farm Fire & Cas. Co., 161 N.C. App. at 546, 589 S.E.2d at 395.

The record is clear that at the close of the Motion to Amend hearing, Judge

Trosch left open issues for resolution in future hearings; it is not clear from the

transcript that the parties even argued the issue of whether the amendment would

relate back to the amended complaint dated 24 August 2017. Additionally, in his

written order allowing the amendment, Judge Trosch specifically stated he was

“appl[ying] the liberal standard of Rule 15(a).” (emphasis added) Therefore, the

- 16 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

record related to the Motion to Amend hearing supports the conclusion that Judge

Trosch did not make a finding on whether the new claims relate back to the original

claims under Rule 15(c).

Seventeen months later, both parties made motions for summary judgment.

Defendant requested the trial court grant summary judgment for the claims of UDTP

and bad faith on two grounds. First, the claims were untimely under the applicable

statute of limitations. Second, the claims conflicted with substantive admiralty law.

At no point in the briefing for summary judgment did Plaintiff allege that the

issue of whether the amendment related back had been previously decided by Judge

Trosch, nor did Plaintiff argue that the Calloway rule was applicable. In fact, in its

responsive brief, Plaintiff invited Judge Levinson to consider the issue of relation

back.

Applying this standard, the [c]ourt can determine whether
the claims asserted by D&B Marine in its [Second]
Amended Complaint relate back to the date it filed its
Original [Amended] Complaint by a comparison of the
allegations in each of the Complaints.

Plaintiff then goes on to compare its original (amended) complaint and its second

amended complaint to demonstrate that the original complaint gave notice of the

events or transactions which produced the claim to enable Defendant to understand

its nature and basis as required to establish relation back. Pyco Supply Co. v.

American Centennial Ins. Co., 321 N.C. 435, 442, 364 S.E.2d 380, 384 (1988).

(observing under the notice theory of pleading, a statement of a claim is adequate if

- 17 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

it gives sufficient notice of the events or transaction which produced the claim to

enable the adverse party to understand the nature and basis and to file a responsive

pleading).

Further, while the record does not include a transcript of the summary

judgment hearing, in his summary judgment order, Judge Levinson stated:

the parties agree that Superior Court Judge Louis Trosch
did not rule on whether the UDTPA and bad faith claims
would “relate back” under Rule 15 of the N.C. Rules of Civil
Procedure notwithstanding the [c]ourt’s permission to
amend the complaint to add extra contractual claims – and
the parties agree this legal issue is before this [c]ourt.

Based upon the briefs and the hearing, Judge Levinson granted Defendant’s motion

for partial summary judgment, finding that the original pleadings did not give notice

of the transactions, occurrences, or series of transactions or occurrences to be proved

pursuant to the amended pleadings.

After this ruling, in the motion for reconsideration of summary judgment and

in this appeal, Plaintiff impermissibly “switched horses” and argued that the act of

granting the motion to amend “automatically” causes the amendment to relate back

because of the word “deemed” in Rule 15(c). Jacobs v. Physicians Weight Loss Ctr. of

Am., Inc., 173 N.C. App. 663, 678, 620 S.E.2d 232, 242 (2005) (“It is axiomatic with

us that a litigant must be heard here on the theory of the trial below and he will not

be permitted to switch horses on his appeal.” (quoting Graham v. Wall, 220 N.C. 84,

94, 16 S.E.2d 691, 697 (1941))). The argument that granting a motion to amend

- 18 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

“automatically” causes an amendment to relate back does not align with the clear

language of the statute or the case law. In Rule 15(c), the language includes a

subordinate clause beginning with the word “unless” which limits the universe of

scenarios where an amendment will relate back. N.C. R. Civ. P. 15 (2022). An

amendment cannot “automatically” relate back when there are scenarios under which

the amendment does not relate back. This Court has identified circumstances where

an amendment does not relate back to the original complaint, including where the

original complaint did not include the specialized pleading requirements for claims

in the amended complaint. See State Farm Fire & Cas. Co., 161 N.C. App. at 589,

S.E.2d at 395.

The Calloway rule represents an important principle in maintaining respect

for the rule of law, and reducing gamesmanship in litigation; for these reasons, we

will not do anything to disrupt or undermine the rule. Here, however, Plaintiff

appears to be engaging in the very gamesmanship that the rule was intended to avoid.

Because Plaintiff encouraged Judge Trosch to grant the motion to amend without

resolving all issues related to the validity of the amendment and invited Judge

Levinson to consider the issue of relation back at summary judgment, we find that

the issue was properly in front of Judge Levinson at the summary judgment hearing.

The Calloway rule is inapplicable.

We therefore affirm Judge Levinson’s grant of partial summary judgment.

B. Jury Instructions on Equitable Estoppel

- 19 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

Next, Plaintiff argues that the trial court made a reversible error when it refused

Plaintiff’s request for an instruction on equitable estoppel after allowing Defendant

to include the affirmative defense of a specific policy exclusion in the jury instructions

and verdict form related to damages from rot and deterioration. We disagree, holding

there was no error, and noting that even if it were an error, Plaintiff failed to show

prejudice.

1. Standard of Review

For an appeal of jury instructions, this Court considers the jury charge

contextually, in its entirety, and the party asserting the error bears the burden of

showing that the jury was misled or that the verdict was affected by an omitted

instruction. Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 347, 631 S.E.2d 174,

177 (2006) A specific jury instruction should be given when: “(1) the requested

instruction was a correct statement of law and (2) was supported by the evidence, and

that (3) the instruction given, considered in its entirety, failed to encompass the

substance of the law requested and (4) such failure likely misled the jury.” Outlaw v.

Johnson, 190 N.C. App. 233, 243, 660 S.E.2d 550, 559 (2008). Failure to give a

requested and appropriate jury instruction is a reversible error if the requesting party

is prejudiced as a result of the omission. Id.

2. Analysis

On appeal, Plaintiff argues that trial court had a “nondiscretionary duty” to

provide a jury instruction on equitable estoppel after it allowed Defendant to include

- 20 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

the affirmative defense4 of a policy exclusion regarding responsibility for damages

associated with deterioration on the verdict form. However, a jury instruction for

equitable estoppel on an insurance policy exclusion does not align with North

Carolina case law. Further, because the jury never reached the issue of whether the

insurance policy exclusion applied to the facts of this case, Plaintiff cannot

demonstrate that the denial of the jury instruction resulted in prejudice.

Our Supreme Court has established that the doctrines of waiver and estoppel

are not available to bring within the coverage of a policy risks that are not covered by

its terms or risks expressly excluded. See Hunter v. Insurance Co., 241 N.C. 593, 595-

96, 86 S.E.2d 78, 80 (1955) (holding estoppel can have a field of operation only when

the subject matter is within the terms of the contract but cannot radically change the

terms of the policy).

Here, Plaintiff requested a jury instruction that equitable estoppel would

preclude Defendant from using an insurance policy exclusion to expand the coverage

of the insurance policy to include rot and deterioration because Defendant’s

representative did not notify Plaintiff of the moist balsa in the hull during the repairs

to the 2013 damage. The policy that Plaintiff and Defendant executed stated:

There shall be no insurance under Part III – Property
Coverage for any loss, damage, claim or expense
attributable to or resulting directly or indirectly, in whole

4 Plaintiff refers to this as an unpled affirmative defense, however Defendant’s answer
includes an affirmative defense of terms of the policy.

- 21 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

or in part or in combination with any other cause or causes
from:
• Gradual or Sudden Loss

Osmosis, blistering, fiberglass or surface coat
blistering, electrolysis, delamination, rust, corrosion or
oxidation, marine life, marine borers, moth or vermin,
rot, fungi, mold or infestation, warping or shrinkage,
change of temperature or humidity, deterioration, lack
of maintenance, wear and tear or inherent vice.

The policy clearly excluded damages due to rot, deterioration, and delamination from

the scope of the policy; therefore, Plaintiff cannot use equitable estoppel to bring that

within the scope of the policy. For that reason, the jury instruction on equitable

estoppel would not be a correct statement of the law, and the trial court did not err

when it denied the request to include a jury instruction on equitable estoppel.

Assuming, arguendo, that the refusal to give the equitable estoppel instruction

was error, Plaintiff has failed to show that the refusal resulted in prejudice. The

requested equitable estoppel instruction applied to whether the policy exclusion for

rot and deterioration was applicable to the facts of the case, which was part of issue

1B on the jury verdict form. Since the jury concluded in issue 1A that the loss of

Fearless was not caused by an “occurrence” as the term was defined in the insurance

policy, the verdict form directed them not to reach a conclusion on any remaining

issues. Because the jury did not consider issue 1B, Plaintiff cannot demonstrate that

the requested instruction would result in a different outcome in the trial.

Accordingly, we affirm the trial court ruling.

- 22 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

C. Jury Instruction on “occurrence”

Plaintiff’s final argument is that the trial court erred in instructing the jury

and on the verdict form that the sinking of Fearless had to result from a new

“occurrence” instead of the result of one of the two covered occurrences that happened

during the policy term. However, Plaintiff did not object to any specific language at

the close of the jury conference regarding the term “occurrence” nor did they object to

the jury charge after the jury instructions were concluded.

Rule 10(a)(2) of the North Carolina Rules of Appellate Procedure specifically

address challenges to jury instructions and provides that:

A party may not make any portion of the jury charge or
omission therefrom the basis of an issue presented on
appeal unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly that to
which objection is made and the grounds of the objection;
provided that opportunity was given to the party to make
the objection out of the hearing of the jury, and, on request
of any party, out of the presence of the jury.

N.C. R. App. P. 10(a)(2) (2022) (emphasis added). Where a portion of the charge is

challenged, it must be identified in the record on appeal by clear means of reference.

Durham v. Quincy Mutual Fire Ins. Co., 311 N.C. 361, 367, 317 S.E.2d 372, 377

(1984).

Here, the record reveals that the trial court provided the parties with the

opportunity to make objections to the jury instructions at the close of the charge

conference and after the jury instructions were delivered. The record is clear that

- 23 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

both parties voiced disagreement with the decisions of the trial court during this

charge conference. However, at the conclusion of the charge conference, only one

objection was placed on the record.

[PLAINTIFF’S COUNSEL]: Plaintiff D&B Marine moves
for a directed verdict on the anti-concurrent clause
exclusion, which is in the jury charge and the verdict as
Issue 1B. There is no evidence and [Defendant] is relying
upon its own breach of its contractual policy to invoke this
exclusion. Therefore, on behalf of [P]laintiff D&B Marine,
we object to the submission of this charge to the jury.

This objection does not state that it applies to the language around the term

“occurrence.” Neither party made an objection on the record after the Judge read the

instructions to the jury. Further, we find no other support for Plaintiff’s argument

that this matter is preserved for appeal in Plaintiff’s briefing. Accordingly, we

dismiss this issue.

Assuming arguendo that the issue was preserved, Plaintiff does not cite to

specific language in the jury charge or on the jury verdict form that was in error. In

its brief, Plaintiff failed to provide a standard of review for this issue as required in

North Carolina Rules of Appellate Procedure. N.C. R. App. P 28(b)(6) (2022).

Additionally, Plaintiff failed to provide a citation of any authorities upon which they

are relying for the argument as required in Rule 28. Id. Issues where there is no

reason or argument stated will be taken as abandoned. Id. Under our appellate

rules, it is the duty of the appellant to provide sufficient legal authority to this Court

- 24 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

and failure to do so will result in dismissal. Zhu v. Deng, 250 N.C. App. 803, 810 794

S.E.2d 808, 814 (2016)

The jury charge included the definition of “occurrence” as defined by the

insurance policy executed by the parties. The verdict form asks the jury if the total

loss of Fearless was caused by an occurrence as defined in the insurance policy. There

is no reference to a “new occurrence” in the jury charge or on the jury form. Plaintiff’s

brief contains conclusory statements that the jury could not find that the sinking was

not covered because Defendant had paid for the repairs associated with covered

damages. However, Plaintiff fails to provide reasoning or authorities to support this

conclusion. It is not the duty of the Court to peruse the record, to construct an

argument for the appellant. Person Earth Movers, Inc. v. Thomas, 182 N.C. App. 329,

333, 641 S.E.2d 751, 754 (2007).

Accordingly, we note that if the issue was preserved, we dismiss the issue

because it was not adequately briefed.

III. Conclusion

After a detailed review of the issues presented by both parties, we affirm the

grant of partial summary judgment by Judge Levinson. Further, we affirm the trial

court’s ruling on the jury instruction for equitable estoppel. Finally, we dismiss the

issue on the jury instruction for “occurrence” because it was not properly preserved

for appeal.

- 25 -
 D&B MARINE, LLC V. AIG PROP. CAS. CO.

Opinion of the Court

AFFIRMED IN PART; DISMISSED IN PART.

Judges GORE and STADING concur.

- 26 -