Swisher v. American Home Assurance Co.

80 N.C. App. 718 | N.C. Ct. App. | 1986

HEDRICK, Chief Judge.

Plaintiff first contends that the trial court should have granted plaintiffs motions for default judgment and to strike defendant’s motion to dismiss.

The determination of whether an adequate basis exists for setting aside the entry of default rests in the sound discretion of the trial judge. Byrd v. Mortenson, 308 N.C. 536, 302 S.E. 2d 809 (1983). Default judgments are not favored, and all doubt should be resolved in favor of setting aside entry of default. Whaley v. Rhodes, 10 N.C. App. 109, 177 S.E. 2d 735 (1970). We hold that the trial court did not abuse its discretion in setting aside entry of default.

We need not address the propriety of denying plaintiffs motion to strike defendant’s motion to dismiss. Because the trial court did not err in setting aside entry of default and never ruled on defendant’s motion to dismiss, the trial court’s ruling on plaintiffs motion to strike could not have prejudiced plaintiff. See Peebles v. Moore, 302 N.C. 351, 275 S.E. 2d 833 (1981); Joe Newton, Inc. v. Tull, 75 N.C. App. 325, 330 S.E. 2d 664 (1985).

Plaintiff also argues that the trial court erred in granting summary judgment for defendant. The insurance contract between plaintiff and defendant explicitly states: “This policy does not apply: (a) To any criminal, fraudulent or malicious act or omission of the Insured . . . G.S. 90-270.16(c) and G.S. 90-270.17 make it a misdemeanor for a psychologist to employ a psychologist who does not possess a valid license. Both parties admit that Dr. Swisher employed Dr. Coleman as a psychologist while Dr. Coleman was unlicensed. Plaintiff contends that the policy provision and the two statutes do not create an insurmountable bar to his claim because the two statutes are not violated unless a psychologist knowingly employed an unlicensed psychologist. There is no such requirement of knowledge explicit or implicit in G.S. 90-270.16. See State v. Hales, 256 N.C. 27, 122 S.E. 2d 768 (1961); State v. Curie, 19 N.C. App. 17, 198 S.E. 2d 28 (1973); 1 Wharton’s Criminal Law Sec. 23 (C. Torcia 14th ed. 1978). Summary judgment for defendant is affirmed.

Affirmed.

Judges EAGLES and COZORT concur.