245 N.C. App. 239
N.C. Ct. App.2016Background
- Plaintiff, a home-health nurse, rented a 2012 Dodge Avenger while her personal car was being repaired and was catastrophically injured in a December 30, 2011 collision while driving the rental on employer business.
- HomeCare (plaintiff’s employer) held a GuideOne policy purchased June 1, 2011 that provided liability and underinsured motorist (UIM) coverage for covered autos.
- Plaintiff sued multiple defendants (vehicle manufacturers, rental company, drivers); copies of the complaint were sent to potential UIM carriers including GuideOne and Ironshore under N.C. Gen. Stat. § 20-279.21.
- Plaintiff obtained a default-based summary judgment against Ironshore, then moved for summary judgment against GuideOne; GuideOne filed its own summary judgment motion denying UIM coverage for the rental car.
- The trial court on Feb 18, 2015 denied GuideOne’s motion and granted Plaintiff partial summary judgment declaring GuideOne’s policy provided UIM coverage up to $1,000,000; the court later vacated the default judgment against Ironshore.
- GuideOne appealed the interlocutory order; the Court of Appeals dismissed the appeal for lack of an immediately appealable substantial right (no Rule 54(b) certification and no lost substantial right).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GuideOne’s policy provides UIM coverage to Plaintiff for the rental vehicle | GuideOne is a UIM carrier under the policy and thus coverage applies | GuideOne contends the rental was not an insured vehicle so no UIM coverage applies | Court did not reach merits on coverage; appeal dismissed as interlocutory because no substantial right shown |
| Whether the Financial Responsibility Act required UIM coverage here | The Act supports Plaintiff’s position that UIM coverage applies and allows carrier participation | GuideOne disputes that the Act compels participation or coverage determination now | Court held the Act permits carrier participation but declined interlocutory review of coverage determination |
| Whether GuideOne has a right to participate in the underlying suit as a UIM carrier under § 20-279.21(b)(4) | Plaintiff: declaring GuideOne a UIM carrier is consistent with the court order, allowing participation | GuideOne: whether it is a UIM carrier is a threshold right; losing immediate review deprives it of participation rights | Court: Under its order GuideOne is an "underinsured motorist insurer" for now and may fully participate; no substantial right lost absent immediate appeal |
| Whether the trial court’s ruling is analogous to a duty to defend, creating a substantial right warranting immediate appeal | Plaintiff: the ruling does not create a duty-to-defend analog; carrier may elect to appear | GuideOne: the ruling operates like a duty to defend and so is immediately appealable | Court: § 20-279.21(b)(4) expressly permits but does not compel participation; not a duty-to-defend situation; no substantial right shown |
Key Cases Cited
- Veazey v. City of Durham, 231 N.C. 357 (decision defining interlocutory order and finality)
- Heavner v. Heavner, 73 N.C. App. 331 (interlocutory order requires further proceedings)
- Harris v. Matthews, 361 N.C. 265 (policy against piecemeal appeals)
- Feltman v. City of Wilson, 767 S.E.2d 615 (two avenues for immediate appeal: Rule 54(b) or showing loss of substantial right)
- Sharpe v. Worland, 351 N.C. 159 (test for loss of substantial right)
- Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C. App. 1 (distinguishing duty-to-defend contexts)
- Darroch v. Lea, 150 N.C. App. 156 (UIM carrier not required to be served or to appear)