Paris v. Woolard

497 S.E.2d 283, 128 N.C. App. 416, 1998 N.C. App. LEXIS 31
CourtCourt of Appeals of North Carolina
DecidedJanuary 20, 1998
DocketNO. COA97-460
StatusPublished
Cited by3 cases

This text of 497 S.E.2d 283 (Paris v. Woolard) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paris v. Woolard, 497 S.E.2d 283, 128 N.C. App. 416, 1998 N.C. App. LEXIS 31 (N.C. Ct. App. 1998).

Opinion

SMITH, Judge.

On 18 February 1992, plaintiff Mable B. Paris, individually and as executrix of the estate of Charles F. Paris, sought damages for injuries sustained in an automobile accident that occurred on 25 April 1991 involving defendant James F. Woolard (“Woolard”). During this accident, Woolard was driving a vehicle owned and insured by his employer W. H. Cahoon, Inc. (“Cahoon”).

On 24 April 1992, defendants Woolard and Cahoon filed a third-party complaint against Pennsylvania Manufacturers’ Association Insurance Company (“PMA”) to obtain a declaration of rights under a business automobile liability insurance policy issued to Cahoon by PMA. Cahoon alleged that the liability insurance coverage was effective on the date of the automobile accident. PMA alleged that the policy had been cancelled prior to the date of the accident.

On 10 September 1993, Woolard and Cahoon added an additional third-party defendant, Agency Services, Inc. (“ASI”), who financed the premiums for the insurance coverage of Cahoon. Woolard and Cahoon alleged that ASI failed to follow certain procedures required by N.C. Gen. Stat. § 58-35-85 (1989) to properly cancel the coverage provided by the insurance policy.

On 26 May 1994, ASI moved for summary judgment. Thereafter, on 7 June 1994, PMA also moved for summary judgment. On 16 June 1994, Woolard and Cahoon as third-party plaintiffs moved for summary judgment as to their third-party action against PMA and ASI. On 27 July 1994, Judge Herbert O. Phillips, III, denied the summary judgment motions of ASI and PMA, and granted summary judgment in favor of plaintiff Paris and Woolard and Cahoon as third-party plaintiffs. Judge Phillips’ order held that the insurance policy was in effect on the date of the accident and thus provided coverage for Woolard and Cahoon.

Subsequent to Judge Phillips’ order, PMA and ASI appealed to this Court. That appeal was dismissed as interlocutory. PMA began [419]*419settlement negotiations with plaintiff Paris and advised ASI of these negotiations. On 5 October 1995, ASI stated that any settlement of claims up to $200,000.00 was reasonable. On 15 December 1995, plaintiff Paris, defendants Woolard and Cahoon, and PMA settled the tort action for $197,500.00. However, ASI did not participate in or contribute to this settlement.

On 18 July 1996, PMA amended its answer to assert a crossclaim for indemnity against ASI. On 26 August 1996, PMA filed a summary judgment motion as to the claims for indemnity and for actual damages. ASI filed a summary judgment motion on 25 October 1996 as to all claims against ASI. Judge James E. Ragan, III, entered an order on 17 January 1997 granting summary judgment to PMA, denying summary judgment to ASI, and ordering ASI to indemnify PMA in the amount of $250,585.33, plus interest and future costs and fees. ASI appeals from both grants of summary judgment.

Before we address the merits of this case, we note that appellant ASI’s brief does not comply with Rule 26(g) of the Rules of Appellate Procedure which requires that “[a]ll printed matter must appear in at least 11 point type.” In addition, Rule 26(g) provides that there must be only ten characters per inch. Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 147, 468 S.E.2d 269, 273 (1996). Therefore, “a properly formatted 8.5 by 11 inch page will contain no more than 65 characters per line.” Id. ASI’s brief violates this rule because it has approximately 98 characters per line. A violation of the type size restriction could result in the imposition of sanctions pursuant to N.C.R. App. P. 25(b) and 34(b). Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 217, 488 S.E.2d 845, 848 (1997).

The appellate rules are not optional; they are mandatory and failure to follow the rules subjects an appeal to dismissal. Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). Nothwithstanding the errors, in deference to the litigants and for reasons of judicial economy, we nevertheless address the general thrust of appellant’s argument pursuant to N.C.R. App. P. 2.

The first issue presented for appeal is whether the trial court committed reversible error in granting the motion for summary judgment in favor of Woolard and Cahoon as third-party plaintiffs against PMA and ASI. Appellate review of the grant of summary judgment is limited to two questions, including: (1) whether there is a genuine question of material fact, and (2) whether the moving party is entitled [420]*420to judgment as a matter of law. Gregorino v. Charlotte-Mecklenburg Hosp. Authority, 121 N.C. App. 593, 595, 468 S.E.2d 432, 433 (1996). A motion for summary judgment should be granted if, and only 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) (Cum. Supp. 1996). Evidence is viewed in the light most favorable to the non-moving party with all reasonable inferences drawn in favor of the nonmovant. Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 291 (1974).

In the instant case, summary judgment was properly granted in favor of Woolard and Cahoon as third-party plaintiffs, holding that PMA’s coverage for Cahoon was in full force and effect on the date of the accident. N.C. Gen. Stat. § 58-35-85 provides that an insurance contract paid for by insurance premium financing cannot be cancelled unless “not less than ten (10) days written notice” is given to the insured concerning the intent of the insurance premium finance company to cancel the insurance contract. N.C. Gen. Stat. § 58-35-85(2) states that only “[a]fter expiration of the period” can the insurance premium finance company mail the insurer a request for cancellation. Thus, N.C. Gen. Stat. § 58-35-85 required the insurance premium finance company, ASI, to wait at least ten days before mailing the insurer a request for cancellation. All the evidence in the record shows that ASI did not wait for ten days to pass after mailing the notice of intent to cancel to Cahoon before it mailed its notice of cancellation to PMA. “In order to cancel a policy the carrier must comply with the procedural requirements of the statute or the attempt at cancellation fails and the policy will continue in effect despite the insured’s failure to pay in full the required premium.” Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 254, 382 S.E.2d 745, 748 (1989). Therefore, since ASI failed to comply with the statute, this assignment of error is overruled.

The second issue is whether the trial court erred in denying ASI’s motion to file a supplemental or further affidavit. ASI argues that the trial court abused its discretion when it stated that the inclusion of A.E. Bittner’s affidavit would not have altered the order allowing summary judgment.

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Bluebook (online)
497 S.E.2d 283, 128 N.C. App. 416, 1998 N.C. App. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paris-v-woolard-ncctapp-1998.