*1 IN THE COURT INS. CO. BUREAU MUT. v. N.C. FARM (1991)] App. 432 [103 LINDSEY, MUTUAL FARM BUREAU Plaintiff NORTH CAROLINA ELLA MUTUAL INSURANCE COM- NATIONWIDE AND INSURANCE COMPANY PANY, Defendants

No. 9014DC1033 1991) (Filed July (NCI3d)— summary judgment § 56.3 Procedure 1. Rules of Civil to affidavits motions —waiver admissibility of affidavits the objection to Plaintiff waived a motion for hearing in a defendants submitted move the affidavits or to object failing to strike them. 2d, Summary § 18. Judgment

Am Jur (NCI3d)— § settlement —uninsured 68.7 insurance 2. Insurance fact of material payments of medical motorist —inclusion —issue presented fact was A issue of material unin- only for plaintiff’s settlement was whether an the claim under plaintiff’s or included motorist claim sured an af- presented where defendant payments provision at- plaintiff’s informed adjuster that she fidavit of its claims $4,000 plaintiff was settlement torney paid that payments and medical the uninsured motorist under claims attorney by an affidavit plaintiff but provisions, motorist claim uninsured plaintiff’s that settlement informed him otherwise. adjuster never 2d, § 291. Insurance Am Jur Automobile — (NCI3d|— automobile insurance § 68.7 3. Insurance — — improper summary judgment family member payments it entitled to to show that was insurer failed Defendant under the action to recover issued to automobile provision payments manager its claims where it submitted an affidavit her mother the insured as member of not not included but the policy, is defined term cannot deter- appellate record on appeal, is not allegation of the significance mine the of the insured. family member 2d, § Insurance Jur Automobile Am OF APPEALS IN THE COURT MUT. INS. CO. LINDSEY v. N.C. *2 in the result.

Judge concurring EAGLES concurring opinion. only in the Judge LEWIS concurs July 1990 in entered 5 by plaintiff APPEAL by William Y. Manson. Heard County Judge District Court DURHAM May of Appeals Court Perry plaintiff-appellant. Robert T.

Patterson, Hartzog, by Loann Cranfill, & Dilthey, Clay, Sumner Meekins, Farm Bureau North Carolina defendant-appellee S. Company. Mutual Insurance Patterson, Patterson, P.A., A. by Lee Bryant &

Reynolds, II, Company. Mutual Insurance Nationwide defendant-appellee

GREENE, Judge. defendants, 1989 against filed action on October Plaintiff (Nationwide) North Company and Mutual Insurance Nationwide (Farm Bureau), Company Insurance Farm Bureau Mutual Carolina by Na- policies under 1990, issued recovery expenses medical seeking of July granted the trial tionwide and Farm Bureau. On in Nationwide and favor of defendants appeals. Plaintiff Bureau. plain- October plaintiff alleges

In that on complaint, collision which was involved in a car passenger tiff was a a passenger car in which plaintiff with run driver. The a hit and by insured Na- Ragland, and operated and Pearline owned payment coverage of policy providing tionwide under $50,000.00. $2,000.00 At the of coverage uninsured motorist and time, a policy Farm Bureau under mother was insured $1,000.00 person. coverage per of provided payment which collision, had plaintiff injuries sustained As the result $1,064.20. totaling medical bills entitled agreement executed plaintiff

On 30 June provided, part, which Agreement “Release and Trust —UMC” $4,000.00, “does the sum of for the consideration from all claims of and and Nationwide discharge forever release the date including prior of whatsoever kind and nature Coverage of an Motorist out of the Uninsured growing hereof Pearline . Nationwide to Policy . . issued Automobile Insurance IN THE COURT OF APPEALS LINDSEY v. N.C. FARM BUREAU MUT. INS. CO.

Ragland, resulting or to result from an accident which occurred Durham, 1988 at or near NC.” Nationwide issued a check in the payable amount of to plaintiff and her at- check, torney. At the bottom of the dated June are the handwritten words “Full Accord and Satisfaction All Claims.”

Plaintiff demanded subsequently payment her medical ex- penses under the coverage provisions policies issued Nationwide and Farm Bureau. Both companies refused to make payment, instituted this action.

In of its judgment, Nationwide *3 adjuster submitted affidavit of Geibig, Sheila a claims for Na- tionwide. The part: affidavit states in 23, 1989, 28, 1989,

5. That on June again on June I spoke [plaintiff’s] attorney, Perry, with T. Robert telephone and negotiated [plaintiff’s] claim with him. 28,

6. on I That June 1989 made an offer to settle [plaintiff’s] $4,000.00 $4,000.00 claim for to Mr. Perry, attorney. her The was offered full and final settlement of her all claims 2, arising the accident of I October 1988. specifically Perry informed Mr. that this offer was for settlement of bills, the lost wages, pain medical asserted suffering by his specifically client. further Perry informed Mr. this offer included the asserted claims of client under his the Uninsured portion Motorist of Ms. coverage Ragland’s policy Payment and the Coverage Medical portion of Ms. Ragland’s policy. Perry

7. That on June Mr. indicated that on behalf client, of his he accepted the above-referenced offer of $4,000.00 to settle her claim.

In opposition to Nationwide’s motion for judgment, attorney, submitted the affidavit Robert Perry. Perry’s affidavit in part: states' 28,

4. That on June 1989 a settlement was obtained to settle the uninsured motorist with claim Nationwide Insurance $4,000.00. Company for the sum of Demand was also made payment payment claim under Ms. Ragland Perline policy Ms. Shelia Geibig stated she would be [sic]. [sic] making payment medical bills incurred Lindsey Ms.

IN THE COURT OF MUT. INS. CO. However, payment was made. such accident. said $4,000 inform me that the offer of no time did Ms. Geibig At Ms. Medical Ragland’s portion included settlement for [sic] Coverage. payment Bureau Farm judgment,

In of its motion for Beckley, manager district claims the affidavit of James policy to an Bureau. This affidavit refers “attached Farm mother, Mary V. Betts. plaintiffs insurance” which was issued to note, however, in the record not included states, part: on The further appeal. Lindsey testimony

3.1 of Ella deposition have reviewed her deposition, information she provided and based on the V. Mary member of Betts Lindsey Ella was not a said is defined in the term DEFINITIONS Mary V. Betts and issued section of on October applicable 2, 1988. representative August a claim On about Company Bureau Mutual Insurance

of North Carolina that Ella Company Nationwide Insurance was informed $1,064.20 for her Lindsey received amount payment of October from the accident arising claim payment pursuant made said *4 by Ragland’s Ms. Pearline coverage provided by Nationwide. policy issued (I) may the first time whether

The issues are: Geibig of Sheila of the affidavits on that the admission appeal argue evidence contain Beckley error in that the affidavits and James settlement, by inadmissible made compromise and negotiation, of (II) 408; in granting court erred and whether the trial Evid. N.C.R. (B) (A)Nationwide, Bureau. in of favor motion or supporting opposing note that affidavits first as would be such facts “shall set forth summary judgment (1990). P. A release . .” 56 . . N.C.R. Civ. admissible in evidence case, in this is by plaintiff one executed agreement, such the Couch, on Insurance Couch rule. G. to the evidence subject parol (2d 1983). Thus, release in the language where the 60:20 ed. § is law matter of the release is a of unambiguous, construction court, execu- surrounding to facts evidence as the parol the 436 IN THE COURT OF APPEALS v. N.C. FARM BUREAU MUT. INS. CO. may tion the not to vary of release be introduced contradict or Therefore, the written in terms. if release this case is without and if the facts forth in ambiguity, set the affidavits contradict release, vary the written terms of the then facts contained are, in the affidavits would not be admissible evidence and therefore, to incompetent a motion for

However, we do not address these questions appeal on this because the issue is not The properly presented. parol evidence rule is a rule law of substantive and not a rule of evidence. (1988). Brandis, H. Brandis North Carolina Evidence 251 There § authority is a of split object effect of failing of parol trial admission evidence. Some courts have held objection, such absence of an is to be con- court, sidered other trial while courts have held that such disregarded by evidence must be the trial even in court the absence Annotation, objection its an admission. See Modern Status Legal Object Rules Failure to Governing to Admission Effect of Rule, Extrinsic Evidence Violative Parol Evidence 81 A.L.R.3d of 249 (1977).However, North Carolina follows the former rule holding that, admission, objection absence to its the trial court DuBose, is to consider v. parol Bishop evidence. (1960) (parol S.E.2d evidence admitted without nonsuit); Green, objection must be question considered on Scott (1883)(where made to parol evidence evidence). party jury cannot complain permitted hear the The record in case does not show objected Therefore, the affidavits submitted either of the defendants. the facts set out in these competent affidavits were evidence to be considered the trial upon ruling motions for summary judgment.

[1] Plaintiff first argues that the affidavits of both Sheila Geibig Beckley and James evidence contained of settlement negotiations (1988), were, therefore, made inadmissible N.C.R. Evid. *5 to incompetent support summary defendants’ motions judgment. for (1990);Borden, Brower, P. N.C.R. Civ. Inc. v. 17 N.C. App. 193 S.E.2d rev’d on grounds, other (1973) 54, 199 S.E.2d 414 (“[affidavits filed of or in to opposition a motion ‘shall judgment set forth such THE IN COURT MUT. INS. CO.

LINDSEY v. N.C. ”). Rule 408 provides would be facts as admissible evidence[ ]’ in part: (1) furnish, or or to furnishing offering promising

Evidence of (2) accept, or to a valuable offering promising or or accepting to compromising attempting compromise consideration in or amount, validity as to either disputed a claim which was liability invalidity for or of the prove is not to admissible require its This rule ... does not exclusion claim or amount.... .... purpose when the is offered for another evidence Evid. 408. N.C.R.

However, a which may upon ruling not be predicated “[e]rror right party evidence unless a substantial admits or excludes ' affected, . is one ruling admitting is and . . case [i]n to strike of record.” N.C.R. timely objection appears or motion (1988); Corey, Evid. 103 see Whitehurst (1988) (failure to move to strike defective 729-30 deter- purposes judgment waives mination). objection or motion strike the not find an do Therefore, arguendo appeal. assuming in the record on affidavits Rule can- were inadmissible under affidavits as error on appeal. not assert admission

II erred in granting Plaintiff next the trial court argues gen- in that there are and Farm Bureau judgment Nationwide de- against the claims both uine issues of material fact precluding fendants if the movant shows

Summary appropriate is judg- fact he is entitled to issue of material when the . . . An issue is material ment as a matter of law. defense legal is would constitute facts on which it based ... To prevailing. which would a non-movant prevent movant must conclusive- summary judgment, entitle one defense or bar non-movant’s ly complete establish “a con- . . . rests the movant make a claim.” “The burden then, the non-movant has no burden clusive until showing; defendant, . is the . . When movant produce evidence.” reverses the usual rule the burden on the movant placing in this showing, ... If movant fails trial burdens. whether nonmovant makes regardless improper, *6 IN THE COURT OF APPEALS

LINDSEY v. N.C. FARM BUREAU MUT. INS. CO. App. (1991)] N.C.

[103 any . . . “In the showing. absence of such proof, plaintiff [non- movant not required to show at the anything hearing; is] in a hearing on a motion for judgment^] the non- movant, trial, unlike a plaintiff at does not have to automatical- case, ly prima only make out a any but has to refute facie showing fa,tally made that his case is deficient. . . . Poole, 158, 162, Cheek v. App. N.C. 390 S.E.2d disc. denied, (1990)(citations omitted). rev. 327 N.C. 394 S.E.2d 169

A ^[2] Nationwide’s evidence, in the form of Sheila Geibig’s affidavit, in support of its motion for judgment, tends to show Geibig that Ms. informed plaintiffs attorney was in settlement plaintiff’s claims asserted under the uninsured provision motorist and the coverage provision evidence, of Ms. Ragland’s policy. Plaintiff’s in the form of her affidavit, attorney’s in opposition to Nationwide’s motion for sum mary judgment, tends to show settlement was plain claim, tiff’s uninsured motorist and that Geibig Ms. never informed plaintiff’s attorney otherwise.

From the evidence presented upon the there judgment, exists a genuine issue of material fact as to whether the settlement included claim for medical expenses under expenses coverage provision of Ms. Ragland’s policy. Co., See Moore v. Beacon Ins. (1981), denied, disc. rev. 291 S.E.2d 150 (1982) (whether medical expenses included in release “is for the determine”). Therefore, jury to entry judgment in favor of Nationwide inwas error.

B fidavit, in support of its motion ^[3] Farm Bureau’s in the form of James judgment, alleges Beckley’s af only that the in question Mary was issued to V. Betts on 2 not a member of Ms. Betts as that term is defined the policy. Though attached, states that this policy is it is not included the record on appeal.

In that the insurance question is not included in appeal, record on we appeal cannot on determine the significance

IN THE COURT BUREAU MUT. INS. CO. LINDSEY v. N.C. FARM of Ms. Betts’ is not one allegation of Farm Bureau’s *7 Thus, “conclusively establish Bureau failed to family members. ” claimfj’ Cheek bar to the nonmovant’s complete ‘a defense not, therefore, entitled to 390 S.E.2d at and is judgment. statement, in his Beckley’s reject argument

We also affidavit, already medical ex- paid plaintiff’s had that Nationwide we As found entitles Farm Bureau to penses, above, motions evidence in opposition from Nation- to show the settlement judgment tending Thus, there is a expenses. wide did not include Ac- on this issue both defendants. issue of material fact entry in favor of Farm Bureau cordingly, inwas error.

Reversed and remanded. only separate opinion. in the result

Judge EAGLES concurs opin- only Judge concurring LEWIS concurs EAGLES Judge ion; only in the result. concurring in the result. concurring

Judge EAGLES we only. I think that here are bound in the result concur Corey, in Whitehurst opinion this Court’s (1988). held that on a In Whitehurst Court any objection to plaintiff waived make a motion by failing to admissibility parol agreement of a to strike.