Grimsley v. Nelson

Judge Wynn

dissenting.

I respectfully dissent because I believe that the uninsured motorist (UM) coverage statute does not permit a direct action by plaintiffs against their UM carrier, the consequence of the majority’s holding. I believe the better procedure would be to remand this case to the trial court for a determination of whether plaintiffs should be permitted to serve defendant Leroy Jerome Nelson in accordance with N.C. Gen. Stat. § 1A-1, Rule 6.

The procedural history of this case is rather complex. On 4 June 1989, plaintiff Marlene R. Grimsley was injured in a automobile accident when she was allegedly hit from behind by a vehicle driven by defendant Leroy Jerome Nelson. Plaintiffs filed this action on 18 May 1992 and a summons was issued to defendant and to Travelers Insurance Co. (“Travelers”), plaintiffs’ UM carrier, on that same date. On 22 May 1992, Craven County Deputy Sheriff Paul Mathes certified service of the summons and complaint upon defendant and Travelers.

On 9 October 1992, Travelers filed its answer and filed an amended answer on 9 November 1992 asserting the defenses of failure to state a claim, lack of personal jurisdiction, insufficient process, and *337insufficient service of process. On 24 November 1992, plaintiffs filed a motion to strike Travelers’s amended answer and a motion for enlargement of time to file alias and pluries summons. Plaintiffs filed a notice on 9 December 1992 “pursuant to Rule 11 of the North Carolina Rules of Civil Procedure” informing the trial court that this Court’s opinion in Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635 (1992) “appears to hold that the trial court does not have the authority to extend the time in which an alias and pluries summons can be issued under the facts of this case.” In an order filed on 26 March 1993, the trial court granted plaintiffs’ motion to strike Travelers’s amended answer but denied their motion for an enlargement of time.

On 24 May 1993, defendant filed a motion to dismiss for insufficient process, insufficient service of process, and lack of personal jurisdiction. Defendant filed affidavits from himself, his former wife Fannie Cox, and his son Leroy Jerome Nelson, Jr. which attested that Leroy Jerome Nelson, Jr. of 2005 New Bern Avenue, New Bern was served with the complaint instead of the proper defendant Leroy Jerome Nelson of 1004 New Bern Avenue, New Bern. The trial court granted defendant’s motion and then granted Travelers’ motion for judgment on the pleadings. The final result of this procedural morass was that even though plaintiffs and Travelers believed plaintiffs had brought a proper action, plaintiffs’ action was dismissed because Leroy Jerome Nelson had not been served despite a certificate from the deputy sheriff to the contrary.

The majority concludes that Travelers did not appear in defendant’s name so as to waive his personal jurisdiction defense when Travelers’ attorney, signed its amended answer as “Appearing in the name of the defendant.” I agree with this conclusion. It is clear from the record that Travelers’ attorney did not represent defendant and could not take any action which would bar defendant from raising a valid defense. As a result, the action is dismissed with regard to defendant Leroy Jerome Nelson. The majority then holds that since Travelers did not raise the personal jurisdiction defense in its answer, it has waived the defense. The majority remands this case in order that plaintiffs may proceed against Travelers to determine whether they are entitled to UM coverage. The majority holds that on remand Travelers cannot raise the defense of lack personal jurisdiction.

I do not believe the UM statute permits plaintiffs to proceed solely against their UM carrier to determine whether plaintiffs are entitled *338to UM coverage. N.C. Gen. Stat. § 20-279.21(b)(3) mandates that motor vehicle liability insurance be available “for the protection of persons insured thereunder who are legally entitled, to recover damages from owners or operators of uninsured motor vehicles.” N.C. Gen. Stat. § 20-279.21(b)(3) (1993) (emphasis added). The UM carrier’s liability is derivative of the tortfeasor’s liability. Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 294, 378 S.E.2d 21, 25 (1989). In Brown v. Lumbermens Mut. Cas. Co., 285 N.C. 313, 204 S.E.2d 829 (1974), our Supreme Court held that for a plaintiff to be “ ‘legally entitled to recover damages’ a plaintiff must not only have a cause of action but a remedy by which he can reduce his right to damage to judgment.” Id. at 319, 204 S.E.2d at 833. See also Spivey v. Lowery, 116 N.C. App. 124, 446 S.E.2d 835 (1994) (The complete release of the tortfeasor releases the underinsured motorist carrier as well); Buchanan v. Buchanan, 83 N.C. App. 428, 350 S.E.2d 175 (1986), disc. review denied, 319 N.C. 224, 353 S.E.2d 406 (1987) (The release of the tort-feasor without the consent of the underinsured motorist carrier discharges the carrier because of the derivative nature of the insurer’s liability,).

In the instant case, under the majority’s analysis, the defendant tortfeasor, Leroy Jerome Nelson, is dismissed from the case since plaintiffs did not properly serve him. Plaintiffs’ insurance policy is not contained in the record on appeal so I cannot determine whether the policy contains the standard provision that a plaintiff is not entitled to UM coverage unless the plaintiff is “legally entitled to recover damages” from the tortfeasor. Under the statute, Travelers’ liability is derivative of the tortfeasor’s liability. If plaintiffs cannot obtain a judgment against Leroy Jerome Nelson, then they are not “legally entitled to recover” under their policy with Travelers.

The majority notes that Travelers has waived the defense of lack of personal jurisdiction by failing to raise the defense in its answer. Whether Travelers can raise this defense, however, is irrelevant when considering whether Travelers is liable to plaintiffs under the UM provisions of their policy. Since, under the majority’s analysis, plaintiffs can never obtain a judgment against the tortfeasor, Travelers cannot be held liable. See Brown, 285 N.C. at 319, 204 S.E.2d at 833.

In my opinion, plaintiffs should be granted an enlargement of time under N.C. Gen. Stat. § 1A-1, Rule 6(b) to serve defendant. Defendant appeared in this action and challenged the service of summons by the deputy sheriff. N.C. Gen. Stat. § 1-75.10(1)(a) provides *339that proof of service shall be the “officer’s certificate thereof, showing place, time and manner of service.” N.C. Gen. Stat. § l-75.10(l)(a) (1983). “When the return upon its face shows legal service by an authorized officer, that return is sufficient, at least prima facie, to show service in fact.” Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 462, 265 S.E.2d 633, 635 (1980). A deputy’s return of service cannot be set aside unless the evidence is clear and unequivocal. Harrington v. Rice, 245 N.C. 640, 642, 97 S.E.2d 239, 241 (1957); see also, Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); Sun Bank/South Florida v. Tracy, 104 N.C. App. 608, 410 S.E.2d 509 (1991); Olschesky v. Houston, 84 N.C. App. 415, 352 S.E.2d 884 (1987).

In the instant case, defendant presented several affidavits that he was not properly served, and the trial court, by granting defendant’s motion to dismiss, found that this evidence was sufficient to rebut the presumption of proper service. Since the deputy sheriff’s return of service indicated defendant had been properly served, plaintiffs may be awarded an enlargement of time under N.C. Gen. Stat. § 1A-1, Rule 6(b) in which to serve defendant. The Supreme Court has held, “Rule 6(b) grants our trial courts broad authority to extend any time period specified in any of the Rules of Civil Procedure for the doing of any act, after expiration of such specified time, upon a finding of ‘excusable neglect.’ ” Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh’g denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

In my opinion, the fact the deputy sheriff’s certificate indicated that defendant was properly served and that both plaintiffs and Travelers proceeded in reliance upon this certificate, is a sufficient indication of “excusable neglect” which should permit plaintiffs an enlargement of time in which to serve defendant. I therefore vote to remand this case to the trial court for a determination of whether plaintiffs are entitled to an enlargement of time under Rule 6(b). This analysis permits plaintiffs to proceed against defendant and their UM carrier which would have occurred if the father had been served instead of the son. For the foregoing reasons, I respectfully dissent.