Court of Appeal Decisions - September 16, 2014

 Below are summaries of some of the major decision of the North Carolina Court of Appeals for September 16, 2014.

North Carolina Court of Appeals Opinions

September 16, 2014

Published

Adcox v. Clarkson:  Commissioners’ silence in order regarding attorney fees did not preclude recovery of attorney fees.

Coll. Rd. v. Animal Hospital:  Right of contribution exists once one debtor pays more than their pro rata share of judgment against multiple defendants.

Crogan v. Crogan:  In action on separation agreement, tort claims, including fraud, are governed by three year statute of limitations, but contract under seal is still ten years.  Plaintiff must allege date fraud was or should have been discovered.

Hyatt v. Mini Storage:  While exculpatory language excusing negligence is disfavored, if the language is unambiguous, it will still be enforced.

Inman v. City of Whiteville:  Where an investigating police officer failed to obtain identity of motorist who negligently forced another vehicle off the road, the public duty doctrine bars recovery against the police department.

**Trillium Ridge Condominium v. Trillium Construction Company: The case arises out of discovered defects by homeowners association and its claim against original builder and developer.  Court held that (1) unless admitted, the statute of limitations is a question of fact for the jury; (2) the gross negligence requires pleading of specific acts; (3) plaintiff must allege action brought within SOL; (4) although statute of repose is 6 years from date of substantial completion, if original construction contract provided for warranty repairs, the SOR may begin to run from the date of those repairs – if those repairs were defective; (5) although there is a 6 year statute of repose, where the developer remains on the HOA Board, there may be a continuing statutory duty to disclose known defects which is an exception to the 6 year SOR; and (7) individuals employed by developer who sat on Board for HOA, may be personally liable for breach of a fiduciary duty when they did not disclose construction defects to the Board.

Unpublished

Cut N Up Hair Salon v. Bennett:  Court held (1) Injunction to enforce covenant not to compete affects a substantial right and is immediately appealable; (2) five year restriction on competition within a 50 mile radius was reasonable.

Gregory v. Old Republic:  Plaintiff died as a result of carbon monoxide poisoning.  Decedent had criminal convictions which the judge excluded from the jury pursuant to a motion in limine. However, during the course of the trial, plaintiff’s attorney put on evidence of what a good father he was, so the judge allowed the admission of the criminal convictions. Court of Appeals found no error.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Do you know Mickey Moore?

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Insurance Bad Faith Hits Poor Families the Hardest

Our firm has litigated numerous insurance bad faith cases representing clients across the board.  In terms of property claims, these cases have ranged from multi-million dollar losses to corporate buildings, to million dollar losses to large wealthy homes, to minor losses to small private homes.  Invariably, however, the smaller losses to indigent families are the most troubling.

Bottom line, insurance companies make money by denying claims or limiting payment on claims.  For large companies and wealthy individuals, a denied insurance claim can be just a small headache.  But for a single parent with two jobs whose roof is leaking and plumbing is not operational, the headache can turn into a debilitating nightmare.

If your insurance claim is denied or payment is minimal, it is important to have an attorney review your insurance contract and any communications from your insurance company regarding the denial.  If the damage to your home is a covered loss, depending on your type of coverage, you are entitled to either the actual cash value of the damage or replacement value.

Additionally, Chapter 58 of the North Carolina General Statutes requires that all insurance companies operate in good faith with respect to claims made by their insureds.  This includes requirements such as: affirming or denying coverage in a prompt manner; promptly investigating your claim; not denying a claim for an improper purpose; not providing justification as basis for denial of a claim, etc.

Do your homework any time you make an insurance claim.  Insurance companies have a duty to their insured and the laws of North Carolina interpret insurance contracts in favor of the insured and in favor of coverage.  


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Monroe Bypass back on track

The North Carolina Department of Transportation recently announced that after much delay, it is going to proceed with the Monroe Bypass.  This will be a 20 mile toll four lane road that runs approximately from Stallings to almost Marshville. (See Map).  The NCDOT has created a flyover of what the proposed road will look like.  The project website may be found by clicking here.

If you are property owner in the path of the new road, you have the absolute right to be paid for your property considering its highest and best use.  You may want to seek legal advice before entering into any agreement with the NCDOT.

Common questions are:

• Do I have to accept the State's offer?
• Do I need an appraiser?
• How long does it take to go to Court?
• Do I need an attorney?
• When do I get paid?
• If there is mortgage on the property, how is that handled?
• What if the roadway impacts other property I own nearby?

In most cases, our firm will provide a free initial consultation to assist you in making decisions about your property.  Visit us at www.devact.com or call 704-377-5242 and ask for Will or Fred DeVore. 


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Does a builder have insurance if a building has defects? Beware builders and owners!

Most builders or contractors have a commercial general liability ("CGL") insurance policy for a particular project.  It is often required by the construction lender.  However, whether this policy actually affords any meaningful insurance to either the contractor or the owner is another question.

Much to the surprise of builders and owners, construction defects are generally NOT covered by either a CGL policy or the owner's homeowners policy (or business policy).  The example we often give clients is that if your roof leaked as a result of a construction defect, the insurance company might pay for the damage the leak caused, but not the cost of repairing the leak.

Reduced to the most basic terms, a CGL policy will only cover losses caused by an "occurrence" not a defect.  An occurrence could be a fire or storm, for example, that occurs while the builder is working on the project.  It would also likely cover personal injuries suffered by third parties on the job.

Several years ago, CGL policies provided additional insurance for subcontractors on the job.  Under these older policies, if a contractor was negligent, it might be covered under the policy.  However, in more recent years that coverage has been written out of the policy and can only be acquired by purchasing a separate endorsement from the insurance company.

For builders who find themselves without coverage and facing a substantial claim - bankruptcy may be the only alternative which is terrible news for both the contractor and the owner.

Email me if you have other questions.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

What are the laws regarding a wrongful death recovery?

There is no more difficult case than one where a loved one has been lost due to the negligence of another.  How can you begin to place a monetary value or something that is priceless?

When faced with a wrongful death situation, here is an outline of the steps that will need to be taken.

1.  You must open an estate.  This is done by going to the Clerk of Court in the county where the person lived or died, and making an application to open the estate.  If the person who died left a will,  then the person appointed in the will to serve as executor will be responsible for opening the estate.  If the person died without a will, then the Clerk will appoint the next of kin to serve as the administrator of the estate, after getting the consent of the other heirs.

2.  Once the estate is opened, the Clerk will issue "Letters of Testamentary".  These "Letters" are somewhat like a power of attorney and it authorizes you to manage the affairs of the estate - from paying creditors to collecting the assets of the estate and distributing them.

3.  North Carolina General Statute 28A-13-3 gives the executor or administrator the exclusive right and responsibility for bringing a wrongful death claim.  The statute of limitations to bring a legal action to recover for wrongful death is two years from the date of death.

4. What may be recovered in such an action is also set forth in the statute.  What may be considered in evaluating such a claim are:

    (1) Expenses for care, treatment and hospitalization incident to the injury resulting in death;

    (2) Compensation for pain and suffering of the decedent;

    (3) The reasonable funeral expenses of the decedent;

    (4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

        a. Net income of the decedent,

        b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

       c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

4.  Proceeds from a wrongful death statute are distributed to the deceased person's heirs pursuant to a statute and regardless of whether the person had a will.  Any money recovered is distributed as if the person died without a will.  Also, any proceeds that you may recover may not be used to be creditors of the estate (except for some limited funeral and medical expenses).  However, if the person lived and was conscious before he or she died, the estate may also be entitled to recover for personal injuries (medical expenses, pain and suffering, etc.) in addition to a wrongful death recovery.  In this case, the funds do pass through the estate (under the will, if one exists).

5.  If a settlement is reached in a wrongful death action, it must be approved by all of the heirs or by court order.  (Court approval is always required if an heir is a minor).

If you have additional questions, email me.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Make sure that your automobile insurance policy has underinsurance coverage in the event of an automobile accident.

Did you know that in North Carolina, a person is only required to have $30,000 in automobile liability insurance coverage?  With the rising cost of health care and mandatory diagnostic medical procedures, a person seriously injured in an automobile accident may face medical expenses in excess of $30,000 in a matter of a day or two. That is why it is imperative that your insurance policy contain underinsurance coverage, sometimes called UIM.

UIM coverage means that if the person who caused the accident does not have enough insurance to pay you for your medical bills, pain and suffering, lost wages, disability, etc., then your policy will provide you with additional coverage - up to a million dollars.

Buy UIM is not required in North Carolina and there is an additional premium to have it included in your policy.  However, the increased premium is well worth it.  Furthermore, if you make make a UIM claim, it will not increase your premium or affect your insurance in any way.

In making a UIM claim, one must be very careful.  Oftentimes the injured party will mistakenly give a release to the insurance company that insured the person that caused the wreck. When this occurs,  your right to make a UIM claim may be lost.

If you have questions about this, email me at Fred DeVore visit us at DeVore, Acton & Stafford, Attorneys at Law.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.