Travelers Insurance Co. v. Ryder Truck Rental, Inc.

Court of Appeals of North Carolina

Travelers Insurance Co. v. Ryder Truck Rental, Inc.

238 S.E.2d 193, 34 N.C. App. 379, 1977 N.C. App. LEXIS 1702

CourtCourt of Appeals of North Carolina

DecidedNovember 2, 1977

DocketNo. 7714SC61

StatusPublished

This text of 238 S.E.2d 193 (Travelers Insurance Co. v. Ryder Truck Rental, Inc.) 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

Travelers Insurance Co. v. Ryder Truck Rental, Inc., 238 S.E.2d 193, 34 N.C. App. 379, 1977 N.C. App. LEXIS 1702 (N.C. Ct. App. 1977).

Pincite

Opinion

ARNOLD, Judge.

Defendant, the third party plaintiff, argues on appeal that the trial court committed prejudicial error in failing to strike plaintiffs notice of voluntary dismissal without prejudice. We should note at the outset that a motion to strike “any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter” under G.S. 1A-1, Rule 12(f) is not the proper motion by which to challenge a notice of dismissal without prejudice. In order to reach the real issue of this case, however, we shall treat defendant’s motion as a motion to set aside plaintiff’s notice of dismissal. The question is whether or not defendant’s third-party complaint asserted grounds for affirmative relief such [381]*381that plaintiff’s notice of dismissal would defeat some substantive right of defendant. See, e.g., Griffith v. Griffith, 265 N.C. 521, 144 S.E. 2d 589 (1965). If so, plaintiff would not be entitled to take a voluntary dismissal. Id.

Having reviewed the pleadings in the present case, we can find no affirmative relief sought by the defendant. Defendant cross-claims against San-Bar to recover any sums which it may be required to pay to the plaintiff. This action for indemnification is contingent upon plaintiff’s recovery and is in no way “affirmative relief,” as defendant asserts. The trial court, therefore, correctly overruled defendant’s motion and allowed the dismissal.

Defendant’s further argument that, since the voluntary dismissal should not have been allowed, the court erred in declaring moot defendant’s motion for summary judgment, is likewise without merit. After the notice of dismissal was properly allowed, there remained no claim against defendant for which defendant would be entitled to indemnity. Defendant’s motion for summary judgment against San-Bar thereby became moot.

Affirmed.

Chief Judge BROCK and Judge PARKER concur.

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ARNOLD, Judge.

Defendant, the third party plaintiff, argues on appeal that the trial court committed prejudicial error in failing to strike plaintiffs notice of voluntary dismissal without prejudice. We should note at the outset that a motion to strike “any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter” under G.S. 1A-1, Rule 12(f) is not the proper motion by which to challenge a notice of dismissal without prejudice. In order to reach the real issue of this case, however, we shall treat defendant’s motion as a motion to set aside plaintiff’s notice of dismissal. The question is whether or not defendant’s third-party complaint asserted grounds for affirmative relief such [381]*381that plaintiff’s notice of dismissal would defeat some substantive right of defendant. See, e.g., Griffith v. Griffith, 265 N.C. 521, 144 S.E. 2d 589 (1965). If so, plaintiff would not be entitled to take a voluntary dismissal. Id.

Having reviewed the pleadings in the present case, we can find no affirmative relief sought by the defendant. Defendant cross-claims against San-Bar to recover any sums which it may be required to pay to the plaintiff. This action for indemnification is contingent upon plaintiff’s recovery and is in no way “affirmative relief,” as defendant asserts. The trial court, therefore, correctly overruled defendant’s motion and allowed the dismissal.

Defendant’s further argument that, since the voluntary dismissal should not have been allowed, the court erred in declaring moot defendant’s motion for summary judgment, is likewise without merit. After the notice of dismissal was properly allowed, there remained no claim against defendant for which defendant would be entitled to indemnity. Defendant’s motion for summary judgment against San-Bar thereby became moot.

Affirmed.

Chief Judge BROCK and Judge PARKER concur.

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Bluebook (online)

238 S.E.2d 193, 34 N.C. App. 379, 1977 N.C. App. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-co-v-ryder-truck-rental-inc-ncctapp-1977.

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