Lloyd v. Coffey

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-840
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-840

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

ERNEST LLOYD & MARY JO CAUBLE, Plaintiffs,

v. Henderson County No. 11 CVS 1251 WILLIAM PRESTON COFFEY, Defendant,

&

MARKEL INSURANCE COMPANY, Unnamed Defendant.

Appeal by plaintiffs from order entered 22 March 2013 by

Judge Alan Z. Thornburg in Henderson County Superior Court.

Heard in the Court of Appeals 11 December 2013.

Lanier Law Group, P.A., by Michael F. Roessler, for plaintiff-appellants.

Arthurs & Foltz, LLP, by Douglas P. Arthurs and Travis G. Page, for unnamed defendant-appellee.

BRYANT, Judge.

Where plaintiffs fail to follow the statutory requirements

of providing advance, written notice of a claim and settlement -2- offer in accordance with N.C. Gen. Stat. § 20-279.12(b)(4), a

grant of summary judgment in favor of unnamed defendant Markel

Insurance Company is appropriate.

On 8 October 2008, plaintiffs Ernest Lloyd and Mary Jo

Cauble (“plaintiffs”) were a driver and passenger, respectively,

in a municipally-operated bus when the bus was struck from

behind by defendant William Preston Coffey (“defendant”). On 7

July 2011, plaintiffs filed a complaint against defendant

alleging injury and damages as a result of defendant’s

negligence.

On 15 December 2011, plaintiffs’ counsel sent a notice to

Markel Insurance Company (“Markel”), holders of defendant’s

underinsured motor vehicle policy (“UIM”), that “the bodily

injury damages incurred in [the October 8, 2008] accident exceed

[defendant’s] liability insurer’s limits of liability coverage.”1

On 20 July 2012, plaintiff Lloyd agreed to a settlement

agreement and covenant not to enforce judgment with defendant’s

insurance carrier, Discovery. On 1 August 2012, plaintiff

Cauble agreed to a similar settlement agreement and covenant not

to enforce judgment with defendant’s insurance carrier,

Discovery.

1 Defendant’s primary insurance carrier was Discovery Insurance Company (“Discovery”). -3- On 17 December 2012, Markel filed a motion for summary

judgment alleging that plaintiffs had failed to provide Markel

with thirty days advance, written notice of the settlement

agreements with Discovery as required by N.C. Gen. Stat. § 20-

279.12(b)(4). On 22 March 2013, the trial court granted

Markel’s motion for summary judgment. Plaintiffs appeal.

_________________________

On appeal, plaintiffs argue that the trial court erred in

granting Markel’s motion for summary judgment. We disagree.

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.” N.C. Gen. Stat. §

1A-1, Rule 56(c) (2011). We review a trial court’s granting of

summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524,

649 S.E.2d 382, 385 (2007).

Plaintiffs contend that the trial court erred in granting

Markel’s motion for summary judgment. Specifically, plaintiffs

argue that the trial court erred in granting summary judgment

because plaintiffs provided written, advance notice of their -4- settlement agreements to Markel as required by N.C.G.S. § 20-

279.21(b). Pursuant to N.C.G.S. § 20-279.21(b)(4),

[n]o insurer shall exercise any right of subrogation or any right to approve settlement with the original owner, operator, or maintainer of the underinsured highway vehicle under a policy providing coverage against an underinsured motorist where the insurer has been provided with written notice before a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured in an amount equal to the tentative settlement within 30 days following receipt of that notice. Further, the insurer shall have the right, in its election, to pursue its claim by assignment or subrogation in the name of the claimant, and the insurer shall not be denominated as a party in its own name except upon its own election.

N.C.G.S. § 20-279.21(b)(4) (2011). Our Court has held that “a

plaintiff is . . . required to notify the UIM insurance carrier

when a claim is filed against the primary tort-feasor, and also

when a settlement offer has been made.” Gurganious v. Integon

Gen. Ins. Corp., 108 N.C. App. 163, 166, 423 S.E.2d 317, 318

(1992) (emphasis added).

Here, plaintiffs’ counsel sent letters to Markel on 15

December 2011 which stated:

Please be advised that we represent [plaintiffs] with respect to injuries arising from an accident involving my client[s] on or about 10/8/2008. Further -5- communications regarding this matter should be directed to the undersigned.

This letter will also advise you that the bodily injury damages incurred in this accident exceed the liability insurer’s limits of liability coverage. Factual and medical information will be submitted to you as soon as my client[s] ha[ve] reached maximum medical improvement.

Please acknowledge this correspondence and confirm that the above-named was insured on the date of the accident and furnish us with the amount of insurance coverage. Also, please forward to the undersigned any copies of medical records or recorded statements that you may have retained in your files.

The letters sent by plaintiff’s counsel provide written notice

of a claim to Markel; however, the letters do not convey notice

of a proposed settlement offer. Therefore, the letters fail to

meet N.C.G.S. § 20-279.21(b)(4)’s requirement of providing

written notice to Markel of a claim and a settlement offer. See

Williams v. Bowden, 128 N.C. App. 318, 494 S.E.2d 798 (1998)

(holding that plaintiff’s oral notice of a settlement offer via

a telephone conversation with the insurer did not meet N.C.G.S.

§ 20-279.21(b)(4)’s requirement of written notice); Gurganious,

108 N.C. App. at 166, 423 S.E.2d at 318 (“[A] plaintiff is . . .

required to notify the UIM insurance carrier when a claim is

filed against the primary tort-feasor, and also when a

settlement offer has been made.”). Accordingly, as plaintiffs -6- have not met the requirements of N.C.G.S. § 20-279.21(b)(4) by

giving advance, written notice of a claim and settlement offer,

the trial court did not err in granting Markel’s motion for

summary judgment.

Affirmed.

Judges CALABRIA and GEER concur.

Report per Rule 30(e).