Kеlly Douglas appeals from the entry of judgment on the pleadings favoring Nationwide Mutual Insurance Company. We affirm.
The underlying facts show that while Kelly Douglas stayed at a home owned by Jerry Fogleman and insured by Nationwide Insurance, Fogleman secretly videotaped her in the bathroom. Following Fogleman’s conviction undеr the secret peeping statute, N.C. Gen. Stat. § 14-202 (1999), Douglas brought a civil action against him alleging intentional infliction of emotional distress and invasion of privacy (98 CVS 386). Nationwide Insurance defended Fogleman under a resеrvation of rights, and a jury awarded Douglas compensatory damages in the amount of $33,000.00 and punitive damages in the amount of $50,000.00.
On 30 December 1999, Nationwide Insurance brought a declaratory judgment action in Superior Court, Wake County, seeking relief from any obligation to indemnify Fogleman on the judgment against him. Subsequently, Superior Court Judgе A. Leon Stanback, Jr., ordered a change of venue to Carteret County. On 20 June 2000, Nationwide Insurance voluntarily dismissed that action without prejudice under N.C. Gen. Stat. § 1A-1, Rule 41 (1999).
Three days later at 12:54 p.m., Douglas filed a declaratory judgment action in Superior Court, Carteret County seeking an adjudication on the same issues under the aсtion previously dismissed by Nationwide Insurance. About three and one-half hours later, Nationwide Insurance refilеd its declaratory judgment action in Superior Court, Wake County.
Notwithstanding notice of the pending action in Cаrteret County, Superior Court Judge Abraham Penn Jones entered judgment in the Wake County action (1) denying Douglas’s motiоn to dismiss based on the pending action in Carteret County, (2) denying Douglas’s alternative motion for change of venue to Carteret County, and (3) granting Nationwide Insurance’s Rule 12(c) motion for judgment on the pleadings. We uphold the trial court’s judgment.
Douglas argues that the trial court should have dismissed Nationwide Insurance’s action in Wake County because she had filed an action about three and one-half hours earlier in Carteret County (00 CVS 726). “Under the law of this state, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent aсtion.” Eways v. Governor’s Island,
However, in Mercer, this Court recognized that the plea of abatement doctrine serves the purpose of avoiding a subsequent action which is “wholly unnecessary and therefore, in the interest of judicial economy, should be subject to a plea in abatement.”
In Allen, this Court construed an exclusionary provision substantially the same as the language at issue in thе instant case. In that case, the homeowner’s insurance policy excluded personal liability and medical payments coverage for bodily injury “which is expected or intended by the insured.” Id. at 541,
In light of this Court’s decision in Allen, the pleadings in the matter filed in Wake County being the same as those filed in Carteret County would as a matter of law yield the same result at either venue: judgment in favor оf Nationwide Insurance. Thus, we conclude that the trial court’s failure to abate the action in Wake County in favor of the prior filed action in Carteret County, although it ran contrary to the general rule of abаtement, nonetheless served the hoary notions of judicial economy upon which the abatement doctrine is founded by effectively avoiding a multiplicity of actions, excess delay and duplicitous costs. See Mercer,
The trial court’s 18 October 2000 judgment on the pleadings for plaintiff is therefore,
Affirmed.
Notes
. Notably, in the underlying civil case (98 CVS 386) that gave rise to the compensatory and punitive damages for which Nationwide Insurance is being asked to indemnify Fogleman, a jury found Fogleman liable to Douglas for intentional infliction of emotional distress and intentional invasion of privacy.