Opinion of the Court
No brief filed for Defendants Charlotte Fox, Leroy Allen, Raymond C. Tarlton, and Kimbery Pinchbeck.
GRIFFIN, Judge.
Plaintiff Lexington Insurance Company appeals from the trial court’s order
granting Defendants J. Duane Gilliam, as Guardian of the Estate of Leon Brown,
Raymond C. Tarlton, as Guardian Ad Litem for Henry Lee McCollum, and Kimberly
Pinchbeck’s, as Limited Guardian and Conservator of the Estate of Henry Lee
McCollum, motion to dismiss. Plaintiff argues the trial court erred by granting
Defendants’ motion based on the prior pending action doctrine. We agree.
I. Factual and Procedural Background
In 1983, Defendants Henry Lee McCollum and Leon Brown were convicted for
the rape and murder of a child. After serving thirty-one years in prison, DNA
evidence exonerated them, and they were released from the State’s custody in 2014.
A year later, they brought civil rights claims in federal court which were in part
settled. Their claims against two former State Bureau of Investigation agents were
tried resulting in a jury verdict of 75 million dollars, later reduced by the United
States Court of Appeals for the Fourth Circuit and memorialized in an amended
judgment entered on 20 April 2023.
Plaintiff Lexington Insurance Company provided indemnity coverage to
Defendant North Carolina Public Officers and Employees Liability Insurance
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Commission (“POELIC”) between 2007 to 2017 by issuing multiple policies during
those years. After the amended judgment was entered, on 1 June 2024, Defendants
McCollum and Brown filed a supplemental complaint against the State of North
Carolina and its insurers, including Plaintiff, seeking to satisfy the judgment. The
supplemental complaint and satisfaction of the judgment are proceeding in federal
court concurrent to this action. See Tarlton ex rel. McCollum v. Allen, No. 5:15-CV-
451BO, 2025 WL 818557 (E.D.N.C. Mar. 13, 2025) (denying Lexington Insurance
Company’s motion to dismiss the supplemental complaint). The State of North
Carolina and Defendant POELIC sought to exercise their rights to indemnity
payments from Plaintiff pursuant to the policies.
Plaintiff takes the position it is not required to indemnify the public entities
because the policies it provided were not entered into when the wrongful acts
occurred, for which Defendants recovered. To this end, Plaintiff filed a complaint
seeking declaratory judgment they are not liable for the judgment under the policies
in Wake County Superior Court on 14 January 2022, which it later amended on 27
March 2024. Defendant filed, on 4 June 2024, a motion to dismiss or, in the
alternative, motion to stay—citing the prior pending action doctrine and forum non
conveniens as grounds for dismissal. After a hearing on the motion, the trial court
granted the motion.
Plaintiff timely appeals.
II. Analysis
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Plaintiff contends the trial court’s judgment was erroneous because the prior
pending action doctrine is inapplicable for multiple reasons. Specifically, Plaintiff
argues the federal action was not a prior pending action because: (1) the federal action
was not a prior pending action when Plaintiff filed this action; (2) the actions do not
involve the same claims in that the federal action was initially for civil rights claims
and the claims here are for declaratory judgment on insurance coverage; and (3) there
is not substantial identity between the parties in both of the actions because the State
and POELIC are insulated from the federal action by the Eleventh Amendment.
Plaintiff also argues the interests of judicial economy weigh in favor of allowing this
action to proceed in state court.
Defendants, in contrast, argue dismissal was proper for two reasons. First,
Defendants contend the trial court granted their motion to dismiss, in part, because
actions for declaratory judgment are improper where a party is seeking an advisory
opinion. Defendants argue this basis, which they allege is not challenged by Plaintiff
on appeal, is sufficient to uphold the trial court’s order. Second, Defendants argue
the prior pending action doctrine supports dismissal as, despite the procedural stalls
in litigation, the federal action was filed in 2015 and the insurance claims made in
their supplemental complaint relate back to that date—therefore, they argue, the
federal action is the “prior pending action” and this action is subject to dismissal. On
this point, Defendants also contend there is substantial similarity between the
material characteristics of each action. Finally, Defendants ask us to remand for
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further consideration of their forum non conveniens argument.
A. Standard of Review
The parties dispute the standard of review applicable here. Plaintiff argues
we review an order granting a motion to dismiss made because of the prior pending
action doctrine de novo. In contrast, Defendants argue we review for an abuse of
discretion because “the Superior Court decided whether a matter is appropriate for
declaratory relief.” Neither Defendants’ motion to dismiss nor the trial court’s order
specifies the ground under Rule 12(b) of the North Carolina Rules of Civil Procedure
that dismissal is premised upon.
Our review of relevant precedent reflects we generally review de novo a motion
to dismiss premised upon the prior pending action doctrine. See Doe v. Wake County,
264 N.C. App. 692, 694, 826 S.E.2d 815, 818 (2019) (reviewing a trial court’s order
dismissing the case, where the defendants raised the prior pending action doctrine
defense, de novo despite it being unclear “which claims were being dismissed on
which grounds”); LMSP, LLC v. Town of Boone, 260 N.C. App. 388, 390, 818 S.E.2d
314, 316 (2018) (reviewing the defendant’s Rule 12(b)(6) motion premised upon the
prior pending action doctrine de novo); Greene v. Trustee Services of Carolina, LLC,
244 N.C. App. 583, 590–91, 781 S.E.2d 664, 670 (2016) (reviewing a Rule 12(b)(6)
motion to dismiss based upon the prior pending action doctrine de novo); but see Johns
v. Welker, 228 N.C. App. 177, 178–79, 744 S.E.2d 486, 488 (2013) (holding record
evidence made clear the trial court’s dismissal was based on Rule 12(b)(1) where the
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prior pending action doctrine was argued, but still reviewing the order de novo).
When reviewing a motion to dismiss de novo, we consider “whether the
allegations in the complaint, if treated as true, are sufficient to state a claim upon
which relief can be granted under some legal theory.” Bridges v. Parrish, 366 N.C.
539, 541, 742 S.E.2d 794, 796 (2013). When doing so, we freely substitute our
“assessment of whether the allegations of the complaint are sufficient to state a claim
for the trial court’s assessment.” Taylor v. Bank of Am., N.A., 382 N.C. 677, 679, 878
S.E.2d 798, 800 (2022) (citations omitted).
Dismissal is proper, on the other hand, where “one of the following three
conditions is satisfied: (1) the complaint on its face reveals that no law supports the
plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to
make a good claim; or, (3) the complaint discloses some fact that necessarily defeats
the plaintiff’s claim.” Bissette v. Harrod, 226 N.C. App. 1, 7, 738 S.E.2d 792, 797
(2013) (citation and internals marks omitted).
B. Independent Ground
As a threshold matter, we disagree with Defendants’ contention that the trial
court partially based its decision upon the theory that Plaintiff is seeking an advisory
opinion. The portion of the transcript Defendants cite to in support of this argument
does not disclose any mention or argument related to this action being in pursuit of
an advisory opinion—rather, the transcript reflects arguments on the prior pending
action doctrine. Specifically, trial counsel cited Coca-Cola Bottling Company
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Consolidated v. Durham Coca-Cola Bottling Company, 141 N.C. App. 569, 541 S.E.2d
157 (2000), while arguing Plaintiff is forum shopping in this action. In Coca-Cola, we
made apparent the guiding principles of declaratory judgment. Id. at 578–79, 541
S.E.2d at 163–64. During our discussion of the inappropriate uses of an action for
declaratory judgment, we do not discuss obtaining an advisory opinion as one such
inappropriate use. Id. at 579, 541 S.E.2d at 164.
Moreover, this action is consistent with the Declaratory Judgment Act.
Specifically, any party “interested under a . . . written contract . . . or whose rights,
status or other legal relations are affected by a . . . contract, may have determined
any question of construction or validity arising under the . . . contract . . . and obtain
a declaration of rights, status, or other legal relations thereunder.” N.C. Gen. Stat. §
1-254 (2023). An action for declaratory judgment to determine the rights between an
insurer and the insured is well within the scope of this power. See generally North
State Deli, LLC. v. Cincinnati Ins. Co., 386 N.C. 733, 908 S.E.2d 802 (2024) (reviewing
an action by the restaurant-plaintiffs for declaratory judgment that their COVID-19
induced losses were covered by their insurance policies); N.C. Farm Bureau Mut. Ins.
v. Allen, 146 N.C. App. 539, 553 S.E.2d 420 (2001) (reviewing a grant of summary
judgment for the plaintiff insurance company on its claim for declaratory judgment
that the policy did not cover a specific event).
As such, Defendants’ contention that the trial court partially based its order
on Plaintiff attempting to obtain an advisory opinion is without merit. Accordingly,
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we will not affirm the trial court’s order on that ground.
C. Prior Pending Action Doctrine
“‘Under the law of this state, where a prior action is pending between the same
parties for the same subject matter in a court within the state having like jurisdiction,
the prior action serves to abate the subsequent action.’” Nationwide Mut. Ins. v.
Douglas, 148 N.C. App. 195, 197, 557 S.E.2d 592, 593 (2001) (quoting Eways v.
Governor’s Island, 362 N.C. 552, 558, 391 S.E.2d 182, 185 (1990)). “Invocation of the
prior action pending doctrine is a form of ‘plea in abatement.’” LMSP, LLC, 260 N.C.
App. at 390, 818 S.E.2d at 316 (citation modified). We do not construe the language
“same parties for the same subject matter” literally—instead, we ask “do the two
actions present a substantial identity as to parties, subject matter, issues involved,
and relief demanded?” Id. (citation modified). If there is substantial similarity
between those material characteristics of the actions, “the subsequent action is
wholly unnecessary and, in the interests of judicial economy, should be subject to a
plea in abatement.” Signalife, Inc. v. Rubbermaid, Inc., 193 N.C. App. 442, 444, 667
S.E.2d 499, 500 (2008) (citation and internal marks omitted).
The analysis in Signalife provides a simple illustration of how the doctrine
works. There, we addressed whether the prior pending action doctrine barred a state
action where one party filed a complaint in federal court at 12:25 a.m. and another
party filed a complaint in superior court at 9:01 a.m. on the same day. Id. at 443, 667
S.E.2d at 499–500. Determining our precedent requires “the first to file test to be
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applied in cases where the ‘prior action pending’ doctrine is implicated,’” we held that
because the parties and claims were substantially similar, and the federal action was
filed first, the state action was subject to abatement under the doctrine. Id. at 445–
46, 667 S.E.2d 500–01.
Here, the fact the federal action ran its course to a final judgment, and Plaintiff
was only brought into the litigation through a supplemental complaint, complicates
the matter. The federal action was filed in 2015 and the initial complaint in this
action was filed in 2022. At face value, presuming the parties and claims are
substantially similar, this action would be barred. But, “a prior action is pending
until its determination by final judgment.” Clark v. Craven Reg’l Med. Auth., 326
N.C. 15, 20, 387 S.E.2d 168, 171 (1990) (emphasis added); see LMSP, LLC, 260 N.C.
App. at 390–91, 818 S.E.2d at 316 (“‘An action is pending for the purpose of abating
a subsequent action between the same parties for the same cause from the time of
the issuance of the summons until its final determination by judgment.’” (quoting
McDowell v. Blythe Bros. Co., 236 N.C. 396, 398–99, 72 S.E.2d 860, 862 (1952)
(emphasis added))).
A plain reading of our precedent mandates we hold this action to be the prior
action. Being so, this action could not be subject to dismissal based upon the prior
pending action doctrine because, considering the federal action had reached a final
judgment, this action is the prior pending action.
Moreover, while North Carolina subscribes to the rule “that a prior action
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which is pending in the appellate division may serve as a prior action pending for the
purpose of basing a judgment of abatement in a subsequent action between the same
parties upon the same issues[,]” Clark, 326 N.C. at 21, 387 N.C. at 172, the federal
action was not pending in the federal appellate courts when Plaintiff filed its
amended complaint. Rather, Defendants were attempting to execute the judgment
entered upon the amended final judgment. Having determined the prior pending
action doctrine is inapplicable here, we do not endeavor to assess whether there is
substantial similarity between the issues and parties in this action and the federal
action.
Accordingly, the trial court erred by granting Defendants’ motion to dismiss
based upon the prior pending action doctrine, and we reverse that order.
D. Forum Non Conveniens
Defendants invite us to remand this case for further consideration of the
applicability of forum non conveniens. As the trial court reserved ruling on this
ground, we make no determination of its applicability moving forward. See Mclean
Trucking Co. v. Mowless, 249 N.C. 346, 351, 106 S.E.2d 510, 514 (1959) (holding a
“question of law [that] was not passed on by the superior court[] should be before it
can be heard here”).
III. Conclusion
For the aforementioned reasons, we hold the prior pending action doctrine does
not warrant dismissal and therefore we reverse the trial court’s order granting
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dismissal on this basis and remand.
REVERSED AND REMANDED.
Judges TYSON and COLLINS concur.
Report per Rule 30(e).
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