Kelly 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 under 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 reservation 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.
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 action previously dismissed by Nationwide Insurance. About three and one-half hours later, Nationwide Insurance refiled its declaratory judgment action in Superior Court, Wake County.
Notwithstanding notice of the pending action in Carteret County, Superior Court Judge Abraham Penn Jones entered judgment in the Wake County action (1) denying Douglas’s motion 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 action.” Eways v. Governor’s Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990) (citing McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860 (1952); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952)). See State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 496 S.E.2d 585 (1998). Douglas’s motion to dismiss presents essentially the same questions as the outmoded plea of abatement, and was properly raised in her responsive pleading. See Brooks v. Brooks, 107 N.C. App. 44, 47, 418 S.E.2d 534, 536 (1992) (“[a] plea in abatement based on a prior pending action ... is a preliminary motion of the type enumerated in Rule 12(b) (2)-(5) and the time for filing such motion is governed by that rule”); Lehrer v. Manufacturing Co., 13 N.C. App. 412, 185 S.E.2d 727 (1972).
However, in Mercer, this Court recognized that the plea of abatement doctrine serves the purpose of avoiding a subsequent action
In Allen, this Court construed an exclusionary provision substantially the same as the language at issue in the 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, 553 S.E.2d at 421. Similarly, in the case at bar, Nationwide Insurance’s policy excludes insurance coverage for any injury “[w]hich is intended by or which may reasonably be expected to result from the intentional acts or omissions or criminal acts or omissions of’ the insured. As in Allen, the question before us is whether, as a matter of law, the injuries suffered by Douglas were intended or may reasonably have been expected by Fogleman, such that coverage for those injuries is barred under Nationwide Insurance’s policy. We conclude that the policy, as a matter of law, excludes coverage for Douglas’s injuries, as Fogleman’s intentional act of concealing a video camera in his bathroom and filming its occupants was sufficiently certain to cause injury that Fogleman should have reasonably expected such injury to occur.
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 of Nationwide Insurance. Thus, we conclude that the trial court’s failure to abate the action in Wake County in favor of
The trial court’s 18 October 2000 judgment on the pleadings for plaintiff is therefore,
Affirmed.
. 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.