Grimsley v. Nelson

451 S.E.2d 336, 117 N.C. App. 329, 1994 N.C. App. LEXIS 1271

• Court: Court of Appeals of North Carolina
• Decided: December 20, 1994
• Docket: 943SC145
• Status: Published

Opinions

GREENE, Judge.

Marlene R. Grimsley and Denny A. Grimsley (plaintiffs) appeal from orders entered 5 April 1993, 21 September 1993, and 1 November 1993 in Craven County Superior Court, granting Leroy Jerome Nelson’s (defendant) motion to dismiss for lack of personal jurisdiction, denying plaintiffs’ written motion to enlarge and oral motion for extension of time to serve the original summons, and granting Travelers Indemnity Company’s (Travelers) motion for judgment on the pleadings.

On 18 May 1992, plaintiffs.filed a complaint against defendant for personal injuries and loss of consortium arising out of an automobile accident on 4 June 1989 allegedly caused by defendant’s negligence. At the time of the accident, Travelers provided uninsured motorist (UM) coverage for plaintiffs. On 21 May 1992, plaintiffs, pursuant to N.C. Gen. Stat. § 20-279.21(b)(3)(a), served Travelers a copy of the summons and complaint. On 22 May 1992, Deputy Sheriff Paul Mathes allegedly personally served a summons on defendant at 2005 New Bern Avenue, New Bern, North Carolina. Travelers retained the law firm of Johnson & Lambeth to represent it.

By letter dated 11 June 1992, Robert White Johnson of Johnson & Lambeth wrote Mr. Albeon G. Anderson (Mr. Anderson), counsel for plaintiffs, confirming their telephone conversation in which Mr. Johnson advised Mr. Anderson “that Travelers had retained me to represent its interest as uninsured motors carrier .... If at some time it appears that you are unable to settle the case I will be notified and will file a response of pleadings and will undertake to get the discovery answered.” By letter dated 13 July 1992, Ms. Beth M. Bryant (Ms. Bryant) of Johnson & Lambeth wrote Mr. Anderson acknowledging “the extension of time within which to file defensive pleadings which you granted Bob Johnson in the referenced case.” On 12 October 1992, Ms. Bryant filed an answer which stated “[t]he undersigned Counsel, appearing in the name of the Defendant, answers the Complaint of the Plaintiff as follows.” She signed the answer “Beth M. Bryant Appearing in the name of the Defendant.” This answer denied the allegations set forth in plaintiffs’ complaint and further alleged that Marlene R. Grimsley (Mrs. Grimsley) was contributorily negligent. On 22 October 1992, plaintiffs filed a reply, denying that Mrs. Grimsley was contributorily negligent and further alleging that defendant had the last clear chance to avoid the accident.

On 9 November 1992, Ms. Bryant filed an amended answer which provided:

NOW COMES THE TRAVELERS INDEMNITY Co., WITHIN 30 DAYS OF FILING OF ITS ORIGINAL ANSWER . . . AND AMENDS ITS ANSWER IN THIS PROCEEDING ... BY DELETING SAID ANSWER IN ITS ENTIRETY AND SUBSTITUTING THE FOLLOWING:

The Travelers Indemnity Co., appearing in the name of Defendant Leroy Jerome Nelson pursuant to N.C. Gen. Stat. 20-279.21(b), answers the Complaint of the Plaintiff as follows.

In its amended answer, Travelers moved to dismiss plaintiffs’ action under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim against defendant upon which relief can be granted and moved to dismiss under Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the North Carolina Rules of Civil Procedure for lack of personal jurisdiction over defendant, insufficiency of process, and insufficiency of service of process. Travelers also denied the allegations contained in plaintiffs’ complaint and alleged Mrs. Grimsley was contributorily negligent. Ms. Bryant signed the amended answer “Beth M. Bryant . . . Attorney for The Travelers Indemnity Co., Appearing in the name of the Defendant.”

On 24 November 1992, plaintiffs made a motion pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure to strike Traveler’s amended answer filed 6 November 1992 because “plaintiffs did not consent to the amended answer and leave of court has not been given.” Also on 24 November 1992, plaintiffs moved for “an order for an enlargement of time within which to file an alias & pluries summons ... on the ground that the failure to act within the time prescribed was due to excusable neglect” because Ms. Bryant and plaintiffs did not discover until later that the summons had been delivered to Leroy Jerome Nelson, Jr. instead of defendant. Plaintiffs also made an oral motion to extend time in which to serve the original summons. On 1 December 1992, Ms. Bryant filed a motion to amend answer which provided “Now Comes Travelers Indemnity Co., through Counsel, and moves the Court for leave to amend its original Answer in this cause and file an Amended Answer” “because subsequent to receipt of Plaintiff’s Reply, Counsel for the Movant learned that the named Defendant herein, Leroy Jerome Nelson, was never served with Complaint and Summons, notwithstanding purported service by the Sheriff reflected in the Court file.” By order entered 5 April 1993, the trial court denied plaintiff’s motions to enlarge and extend the time in which to serve the original summons, denied Traveler’s motion to amend its answer, and allowed plaintiffs’ motion to strike.

On 24 May 1993, David A. Stoller (Mr. Stoller), an attorney for the law firm of Dunn, Dunn & Stoller, filed a motion to dismiss which provided “Comes Now Defendant, Leroy Jerome Nelson, by and through the undersigned counsel and moves the Court to dismiss this action as against Defendant” because “[n]o Summons, Complaint or other process have been served upon this Defendant. The Summons issued with Complaint has expired. Because of an insufficiency of process, an insufficiency of service of process, or both, this Court lacks jurisdiction over the person of Defendant, Leroy Jerome Nelson.” Mr. Stoller signed this motion “Dunn Dunn & Stoller Attorneys for Defendant By: David A. Stoller.”

By order dated 21 September 1993, the trial court found it lacked jurisdiction over the person of defendant, granted defendant’s motion to dismiss for lack of personal jurisdiction, and dismissed plaintiffs’ action against defendant. Travelers then made a motion for judgment on the pleadings on the grounds that the 21 September 1993 order, dismissing the action as to defendant, resolved all issues raised by plaintiffs’ complaint. By order entered 1 November 1993, the trial court allowed Travelers’ motion and dismissed plaintiffs’ action.

The issues presented are whether (I) Ms. Bryant was the attorney for defendant so that the answer filed by Ms. Bryant constitutes a general appearance by the defendant thereby waiving his defense of lack of personal jurisdiction; and (II) the UM carrier’s motion for judgment on the pleadings should have been granted.

I

It has long been the law in North Carolina that “a general appearance by a party’s attorney will dispense with process and service” on the defendant. Williams v. Williams, 46 N.C. App. 787, 789, 266 S.E.2d 25, 27 (1980). Thus, the filing of an answer by the defendant’s attorney (which constitutes a general appearance) which does not include the defense of lack of personal jurisdiction constitutes a waiver by the defendant of this defense if the defense had not been raised in a prior motion. Id. at 790, 266 S.E.2d at 28; N.C.G.S. § 1A-1, Rule 12(h)(1) (1990) (defense must be raised in pre-answer motion or in the answer). In this case, the issue is raised as to whether Ms. Bryant, in filing the 12 October 1992 answer, appeared as the defendant’s attorney. If she did not, the answer she filed did not bind the defendant, and the defendant cannot be said to have made a general appearance and therefore waived his defenses to personal jurisdiction. If she did appear on behalf of the defendant, the filing of the answer was a waiver of the defendant’s right to raise the defense of lack of personal jurisdiction.

Plaintiffs argue that Ms. Bryant’s signing of Travelers’ answer “Appearing in the name of the Defendant” raises the presumption that Ms. Bryant had “authority to act for the client he or she professes to represent.” J.I.C. Elec., Inc. v. Murphy, 81 N.C. App. 658, 660, 344 S.E.2d 835, 837 (1986). We disagree.

Under N.C. Gen. Stat. § 20-279.21(b)(3)(a), if an insured institutes suit against an uninsured motorist, the insurer is bound by a final judgment against the uninsured motorist “if the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist.” N.C.G.S. § 20-279.21(b)(3)(a) (1993). Once an insurer is served with a copy of the summons, complaint or other process in a suit brought by an insured against an uninsured motorist, the insurer “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.; see also James E. Snyder, Jr., North Carolina Automobile Insurance Law § 36-5 at 289-90 (2d ed. 1988).

Plaintiffs, in serving Travelers a copy of the summons and complaint pursuant to Section 20-279.21(b)(3)(a), were aware that Travelers became an unnamed party to the action, entitled to file responsive pleadings if it so chose. Allowing a UM carrier to be an unnamed party that “may defend the suit in the name of the uninsured motorist” allows a UM carrier to file an answer “in the name of defendant” to protect its interests, not defendant’s interests, without the UM carrier identifying itself by name. See Paul W. Pretzel, Uninsured Motorists §§ 60-61 at 143-46 (1972) (discussing possible conflicts of interest between UM carrier and uninsured motorist when suit is filed by insured against uninsured motorist).

The 12 October 1992 answer, viewed on its face, does not reveal that it was filed on behalf of Travelers. It does, however, reveal that it was filed by Ms. Bryant, an attorney known by the plaintiffs to be representing Travelers, and filed “in the name of the defendant,” the very language permitted by Section 20-279.21(b)(3)(a). Thus, because the filing of the 12 October 1992 answer was entirely consistent with Section 20-279.21(b)(3)(a) and because the record reveals that the plaintiffs were fully aware of the fact that Ms. Bryant, the attorney signing the answer, represented Travelers, there arises no presumption that Ms. Bryant represented the defendant. Accordingly, the answer did not constitute a general appearance by the defendant, and the defendant was not precluded from later raising the defense of lack of personal jurisdiction. Because there is no dispute that the defendant was not served with process, the trial court therefore correctly allowed the defendant’s motion to dismiss.

II

Travelers argues that because “Travelers has no liability to Plaintiffs if Plaintiffs cannot obtain a judgment against Defendant Nelson, all issues raised by the pleadings were resolved by virtue of the dismissal of this action as to Defendant Nelson and judgment on the pleadings was therefore appropriate.” We disagree.

Judgment on the pleadings is only proper where the pleadings fail to present any issue of fact for determination by a jury. Flexolite Elec. v. Gilliam, 55 N.C. App. 86, 88, 284 S.E.2d 523, 524 (1981). In an uninsured motorist case, a UM carrier’s liability depends on whether the plaintiff is “legally entitled to recover damages” from the uninsured motorist, i.e., “can reduce his right to damage to judgment.” Brown v. Casualty Co., 285 N.C. 313, 319, 204 S.E.2d 829, 833 (1974); see 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 7.2, at 247 (2d ed. 1992) (“term ‘legally entitled’ means that the injuries must result from the negligent conduct of an uninsured motorist”). Although the action by the insured against an uninsured motorist is one “for the tort allegedly committed by the uninsured motorist” so that “[a]ny defense available to the uninsured tort-feasor should be available to the [UM] insurer,” id. at 319, 204 S.E.2d at 834, the UM carrier must avail itself of that defense in order to benefit from it.

Section 20-279.21(b)(3)(a) gives Travelers the right to participate in plaintiffs’ lawsuit against defendant, but does not require Travelers’ participation, does not relieve plaintiffs’ duty to serve defendant, and does not deprive defendant of his rights to participate in the lawsuit himself. See In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (when statute uses word “may,” its provisions will ordinarily be construed as permissive and not mandatory). Travelers, who exercised its option to participate in plaintiffs’ lawsuit against defendant pursuant to Section 20-279.21(b)(3)(a) after becoming an unnamed party to the action, filed an answer without asserting the defense of lack of personal jurisdiction over defendant. Therefore, although Travelers did have this defense available to it, Travelers waived its ability to avail itself of that defense by filing an answer without asserting the defense. See Humphrey v. Sinnott, 84 N.C. App. 263, 265, 352 S.E.2d 443, 445 (1987) (party waives defense of lack of personal jurisdiction by filing motion for discretionary change of venue without first or simultaneously asserting defense). Under these circumstances, although plaintiffs cannot obtain a judgment against defendant because he properly asserted the defense of lack of personal jurisdiction, this action may proceed against Travelers to determine whether plaintiffs are entitled to uninsured motorist coverage. Furthermore, Travelers, by failing to properly assert the defense of lack of personal jurisdiction in its answer, may not rely on the defense that plaintiffs cannot “reduce its right to judgment” against defendant because of lack of personal jurisdiction in determining whether plaintiffs are “legally entitled to recover damages” from defendant. The order of the trial court granting Travelers’ motion for judgment on the pleadings is accordingly reversed.

Because plaintiffs presented no argument in their brief supporting their assignments of error to the trial court’s denial of plaintiffs’ motions for enlargement of time for filing alias and pluries summons and extension of time in which to serve the original summons, we need not address these issues. N.C.R. App. P. 28(b)(5).

Affirmed in part, reversed in part, and remanded.

Judge JOHN concurs. Judge WYNN dissents.