Swisher v. American Home Assurance Co.

Court of Appeals of North Carolina

Swisher v. American Home Assurance Co.

343 S.E.2d 288, 80 N.C. App. 718, 1986 N.C. App. LEXIS 2245

CourtCourt of Appeals of North Carolina

DecidedMay 20, 1986

DocketNo. 8510DC1345

StatusPublished

Cited by1 cases

This text of 343 S.E.2d 288 (Swisher v. American Home Assurance Co.) 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.

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Swisher v. American Home Assurance Co., 343 S.E.2d 288, 80 N.C. App. 718, 1986 N.C. App. LEXIS 2245 (N.C. Ct. App. 1986).

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Opinion

HEDRICK, Chief Judge.

Plaintiff first contends that the trial court should have granted plaintiffs motions for default judgment and to strike defendant’s motion to dismiss.

The determination of whether an adequate basis exists for setting aside the entry of default rests in the sound discretion of the trial judge. Byrd v. Mortenson, 308 N.C. 536, 302 S.E. 2d 809 (1983). Default judgments are not favored, and all doubt should be resolved in favor of setting aside entry of default. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E. 2d 735 (1970). We hold that the trial court did not abuse its discretion in setting aside entry of default.

We need not address the propriety of denying plaintiffs motion to strike defendant’s motion to dismiss. Because the trial court did not err in setting aside entry of default and never ruled on defendant’s motion to dismiss, the trial court’s ruling on plaintiffs motion to strike could not have prejudiced plaintiff. See Peebles v. Moore, 302 N.C. 351, 275 S.E. 2d 833 (1981); Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E. 2d 664 (1985).

Plaintiff also argues that the trial court erred in granting summary judgment for defendant. The insurance contract between plaintiff and defendant explicitly states: “This policy does not apply: (a) To any criminal, fraudulent or malicious act or omis[720]*720sion of the Insured . . . G.S. 90-270.16(c) and G.S. 90-270.17 make it a misdemeanor for a psychologist to employ a psychologist who does not possess a valid license. Both parties admit that Dr. Swisher employed Dr. Coleman as a psychologist while Dr. Coleman was unlicensed. Plaintiff contends that the policy provision and the two statutes do not create an insurmountable bar to his claim because the two statutes are not violated unless a psychologist knowingly employed an unlicensed psychologist. There is no such requirement of knowledge explicit or implicit in G.S. 90-270.16. See State v. Hales, 256 N.C. 27, 122 S.E. 2d 768 (1961); State v. Curie, 19 N.C. App. 17, 198 S.E. 2d 28 (1973); 1 Wharton’s Criminal Law Sec. 23 (C. Torcia 14th ed. 1978). Summary judgment for defendant is affirmed.

Affirmed.

Judges EAGLES and COZORT concur.

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HEDRICK, Chief Judge.

Plaintiff first contends that the trial court should have granted plaintiffs motions for default judgment and to strike defendant’s motion to dismiss.

The determination of whether an adequate basis exists for setting aside the entry of default rests in the sound discretion of the trial judge. Byrd v. Mortenson, 308 N.C. 536, 302 S.E. 2d 809 (1983). Default judgments are not favored, and all doubt should be resolved in favor of setting aside entry of default. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E. 2d 735 (1970). We hold that the trial court did not abuse its discretion in setting aside entry of default.

We need not address the propriety of denying plaintiffs motion to strike defendant’s motion to dismiss. Because the trial court did not err in setting aside entry of default and never ruled on defendant’s motion to dismiss, the trial court’s ruling on plaintiffs motion to strike could not have prejudiced plaintiff. See Peebles v. Moore, 302 N.C. 351, 275 S.E. 2d 833 (1981); Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E. 2d 664 (1985).

Plaintiff also argues that the trial court erred in granting summary judgment for defendant. The insurance contract between plaintiff and defendant explicitly states: “This policy does not apply: (a) To any criminal, fraudulent or malicious act or omis[720]*720sion of the Insured . . . G.S. 90-270.16(c) and G.S. 90-270.17 make it a misdemeanor for a psychologist to employ a psychologist who does not possess a valid license. Both parties admit that Dr. Swisher employed Dr. Coleman as a psychologist while Dr. Coleman was unlicensed. Plaintiff contends that the policy provision and the two statutes do not create an insurmountable bar to his claim because the two statutes are not violated unless a psychologist knowingly employed an unlicensed psychologist. There is no such requirement of knowledge explicit or implicit in G.S. 90-270.16. See State v. Hales, 256 N.C. 27, 122 S.E. 2d 768 (1961); State v. Curie, 19 N.C. App. 17, 198 S.E. 2d 28 (1973); 1 Wharton’s Criminal Law Sec. 23 (C. Torcia 14th ed. 1978). Summary judgment for defendant is affirmed.

Affirmed.

Judges EAGLES and COZORT concur.

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343 S.E.2d 288, 80 N.C. App. 718, 1986 N.C. App. LEXIS 2245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swisher-v-american-home-assurance-co-ncctapp-1986.

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