Dean v. Rousseau

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-376

No. COA21-518

Filed 7 June 2022

Forsyth County, No. 20 CVS 5229

RICKY DEAN, ADMINISTRATOR OF THE ESTATE OF OLIVIA DARLENE
FLORES, Plaintiff,

v.

RAVON WALSER ROUSSEAU, Defendant.

Appeal by plaintiff from Order entered 17 May 2021 by Judge John O. Craig

in Forsyth County Superior Court and from Order entered 25 May 2021 by Judge

Martin B. McGee in Forsyth County Superior Court. Heard in the Court of Appeals

22 February 2022.

Morrow Porter Vermitsky & Taylor, PLLC, by John N. Taylor, Jr., for plaintiff-
appellant.

Sue & Anderson L.L.P., by Gary K. Sue, for unnamed defendant-appellee
Southern General Insurance Company.

Bowden Gardner & Hill, P.C., by Spencer L. Hill, for unnamed defendant-
appellee National General Insurance Company.

GORE, Judge.

¶1 Plaintiff Ricky Dean, administrator of the estate of Olivia Darlene Flores,

appeals from two Orders granting Motions to Dismiss filed by unnamed defendants

Southern General Insurance Company (“Southern General”) and National General
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Insurance Company (“National General”). For the reasons stated herein, we affirm

the Orders of the trial court.

I. Background

¶2 On 12 November 2020, plaintiff filed a complaint for wrongful death and

survivorship damages against Ravon Walser Rousseau. Plaintiff alleged that on 14

November 2018, Ms. Flores was involved in a collision with Mr. Rousseau while

operating a taxi cab for Taxi Universal, Ms. Flores’s employer. The complaint alleges

that at the time of the collision with Ms. Flores, Mr. Rousseau was racing with a

second vehicle and driving at excessive speeds. The driver of the second vehicle fled

the scene and was never identified. Mr. Rousseau also fled the scene but was later

apprehended and charged with second-degree murder and felonious hit and run; he

pled guilty and was sentenced to fifteen years in prison. Ms. Flores was pronounced

dead at the scene. Mr. Rousseau did not have car insurance, however, Ms. Flores’s

insurance policies with Southern General and National General included uninsured

motorist coverage.

¶3 On 12 November 2020, a Civil Summons was issued against Southern General.

Service of the Summons and Complaint as to Southern General and National
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General1 were made through the Commissioner of Insurance on 1 December 2020 and

26 January 2021, respectively. Southern General filed an Answer and Motion to

Dismiss on 29 December 2020 and National General filed an Answer and Motion to

Dismiss on 15 February 2021. Both Southern General and National General claimed

that plaintiff’s claim should be dismissed for failure to state a claim upon which relief

may be granted pursuant to North Carolina Rules of Civil Procedure Rule 12(b)(6)

because plaintiff failed to serve the unnamed defendants within the applicable

statute of limitations.

¶4 The trial court granted Southern General’s motion to dismiss pursuant to Rule

12(b)(6) on 17 May 2021 and National General’s motion to dismiss pursuant to Rule

12(b)(6) on 20 May 2021. The trial court entered an Amended Default Judgment

against Mr. Rousseau on 8 June 2021. Plaintiff entered Notice of Appeal from the two

Orders granting the Southern General and National General Motions to Dismiss on

1 July 2021.

II. Discussion

¶5 Plaintiff appeals from grants of a 12(b)(6) motion to dismiss. On appeal,

plaintiff argues that decisions from this Court regarding similarly situated litigants

1 The record does not include the Civil Summons issued to National General. Generally,
failure to include the Civil Summons would frustrate review of the issue before this Court.
However, we were able to piece together enough of the facts to resolve the issue presented.
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are inconsistent. This line of cases includes Thomas v. Washington, 136 N.C. App.

750, 525 S.E.2d 839 (2000), Davis v. Urquiza, 233 N.C. App. 462, 757 S.E.2d 327

(2014), and Powell v. Kent, 257 N.C. App. 488, 810 S.E.2d 241, disc. rev. denied, 371

N.C. 338, 813 S.E.2d 857 (2018). These cases have been interpreted as standing for

the proposition that service of the complaint and summons on an unnamed defendant

uninsured motorist carrier must occur before the expiration of the applicable statute

of limitations.

¶6 “The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency

of the complaint.” Simpson v. Sears, 231 N.C. App. 412, 414, 752 S.E.2d 508, 509

(2013). “In ruling on the motion the allegations of the complaint must be viewed as

admitted, and on that basis the court must determine as a matter of law whether the

allegations state a claim for which relief may be granted.” Stanback v. Stanback, 297

N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). “This Court must

conduct a de novo review of the pleadings to determine their legal sufficiency and to

determine whether the trial court’s ruling on the motion to dismiss was correct.”

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per

curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

¶7 In order for an uninsured motorist carrier to be bound by a judgment against

an uninsured motorist, the insurer must be “served with copy of summons, complaint

or other process in the action against the uninsured motorist by registered or certified
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mail, return receipt requested, or in any manner provided by law . . . .” N.C. Gen.

Stat. § 20-279.21(b)(3)(a) (2021). “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.” Id.

¶8 N.C. Gen. Stat. § 20-279.21(b)(3)(a) does not specify a time limitation for

service of the uninsured motorist carrier. However, the North Carolina Rules of Civil

Procedure provide that “[a] civil action is commenced by filing a complaint with the

court.” N.C. R. Civ. P. 3(a) (2021). The Rules go on to state that “[u]pon the filing of a

complaint, summons shall be issued forthwith, and in any event within five days.”

N.C. R. Civ. P. 4(a). “Personal service or substituted personal service of summons as

prescribed by Rule 4(j) and (j1) must be made within 60 days after the date of the

issuance of summons.” N.C. R. Civ. P. 4(c).

¶9 In Thomas, the plaintiff instituted an action to recover for personal injuries

from a car accident before the statute of limitations applicable to automobile

negligence expired and properly issued summons against both individual defendants,

who were properly served. Thomas, 136 N.C. App. at 753, 525 S.E.2d at 841. A series

of alias and pluries summonses were issued and directed to the named defendants,

but the uninsured motorist carrier was not served within the statutory time limit. Id.

The plaintiff argued that because her action against the uninsured motorist carrier
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arose from a contract of insurance, the statute of limitations did not apply, and that

her action was kept alive through alias and pluries summonses. Id. at 754, 525 S.E.2d

at 842. This Court rejected the plaintiff’s arguments in affirming the trial court’s

grant of summary judgment, holding that the applicable statute of limitations, “which

begins running on the date of the accident, also applies to the uninsured motorist

carrier[]” and that “the provisions relating to issuance of alias or pluries summonses

did not apply, as both individual defendants were served personally with the original

summons.” Id. at 754-56, 525 S.E.2d at 842-43.

¶ 10 In Davis, the plaintiff filed a claim for personal injuries resulting from a

vehicular collision against the defendant, an uninsured motorist, on 31 May 2012.

Davis, 233 N.C. App. at 463, 757 S.E.2d at 329. On 5 June 2012, counsel for the

plaintiff mailed a copy of the summons and complaint to a representative of the

uninsured motorist carrier (who was not a proper person upon which service of

process could be made). Id. The uninsured motorist carrier’s representative received

these documents on 7 June 2012 and the uninsured motorist carrier filed an answer

to plaintiff’s complaint on 6 July 2012, asserting the defenses of insufficiency of

process as well as the statute of limitations. Id. The plaintiffs caused alias and pluries

summonses to be issued on 20 July 2012, 25 September 2012, and 10 December 2012.

Id. On 2 January 2013, the plaintiffs sent by certified mail a copy of the summons

and complaint to the Commissioner of Insurance in order to be served upon the
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uninsured motorist carrier. This Court, in affirming the trial court’s dismissal of the

plaintiff’s complaint, stated that mere notice to the uninsured motorist carrier is

insufficient under N.C. Gen. Stat. § 20-279.21(b); “the carrier must be formally served

with process.” Id. at 464, 757 S.E.2d at 330. The Court went on to state that “[w]here

a plaintiff seeks to bind an uninsured motorist carrier to the result in a case, the

carrier must be served by the traditional means of service, within the limitations

period.” Id. at 467, 757 S.E.2d at 332.

¶ 11 In Powell, the plaintiff filed a complaint for personal injury and had summons

issued against the individual defendants on 4 February 2009. Powell, 257 N.C. App.

at 488, 810 S.E.2d at 242. Summons were issued to the uninsured motorist carrier on

24 February 2009 and service of the summons and complaint as to the uninsured

motorist carrier was made through the Commissioner of Insurance on 31 March 2009.

Id. The complaint was voluntarily dismissed on 13 December 2013 and refiled on 24

February 2014. Id. at 488-89, 810 S.E.2d at 242. The uninsured motorist carrier was

served through the Commissioner of Insurance with the summons and refiled

complaint on 20 March 2014. Id. at 489, 810 S.E.2d at 242. The complaint was again

voluntarily dismissed on 2 November 2014. Id. Plaintiff refiled his complaint on 26

February 2016. Id. The uninsured motorist company moved for summary judgment

because it was served with the summons and complaint after the statute of

limitations had expired, which the trial court granted. Id. at 490, 810 S.E.2d at 243.
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This Court concluded that our holdings in Thomas and Davis required the Court to

affirm the trial court’s grant of summary judgment. Id. at 493, 810 S.E.2d at 245.

However, this Court noted:

The holdings in Thomas and Davis appear to be
inconsistent with other applications of the statute of
limitation which hold that cases are timely when filed
within the statute of limitation, with service of process
permitted within the time frames set forth in Rule 4 of the
North Carolina Rules of Civil Procedure, even when service
is accomplished after the statute of limitation has expired.
While we are unable to discern any requirement in N.C.
Gen. Stat. § 20-279.21(b)(3)(a) that specifically requires in
an uninsured motorist action that service of process also be
accomplished before the date the statute of limitation
expires, we are bound by the prior determinations in
Thomas and Davis. Given this inconsistent application of
the statutes of limitations for similarly situated litigants,
this situation appears ripe for determination or
clarification by our Supreme Court or Legislature.

Id. at 492, 810 S.E.2d at 244-45.

¶ 12 In the case sub judice, the action for wrongful death was filed on 12 November

2020, before the applicable two-year statute of limitations expired on 14 November

2020. See Brown v. Lumbermens Mut. Casualty Co., 285 N.C. 313, 319, 204 S.E.2d

829, 833 (1974) (applying the two-year statute of limitations for wrongful death

actions to claims brought by a deceased’s estate seeking to recover from an uninsured

motorist provision). The civil summons was issued that same day. Southern General

and National General were then served with the summons and complaint through
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the Commissioner of Insurance on 1 December 2020 and 26 January 2021,

respectively. Neither our Supreme Court nor General Assembly has addressed this

issue since this Court’s holding in Powell. Thus, just as we were in Powell, we are

bound by this Court’s prior decisions and must affirm the trial court’s dismissal of

plaintiff’s actions because both Southern General and National General were served

after the statute of limitations expired. See In re Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.”).

¶ 13 However, just as in Powell we note that the rule established by this Court in

Thomas and Davis seems inapposite and inconsistent with this State’s Rules of Civil

Procedure and how the statute of limitations is evaluated in other civil matters. Thus,

we once again request clarification and further guidance from either our Supreme

Court or General Assembly.

III. Conclusion

¶ 14 For the foregoing reasons the Orders of the trial court are affirmed.

AFFIRMED.

Judges INMAN and ZACHARY concur.