{ "id": 8524142, "name": "BOBBY CHARLES PATRICK and wife, OMIE PATRICK, Plaintiffs v. RONALD WILLIAMS, Professional Association and RONALD C. WILLIAMS, Individually, Defendants", "name_abbreviation": "Patrick v. Williams", "decision_date": "1991-04-02", "docket_number": "No. 9026SC350", "first_page": "355", "last_page": "370", "citations": [ { "type": "official", "cite": "102 N.C. App. 355" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "13 ALR4th 95", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "87 A.L.R. 3d 168", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1978, "pin_cites": [ { "page": "183-85" } ], "opinion_index": 0 }, { "cite": "92 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "396-97" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "year": 1956, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "337 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714177, 4716485, 4715177, 4715661, 4716155 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0185-05", "/nc/315/0185-01", "/nc/315/0185-03", "/nc/315/0185-02", "/nc/315/0185-04" ] }, { "cite": "331 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "75 N.C. 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App.", "case_ids": [ 8521334 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0131-01" ] }, { "cite": "402 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524290 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0392-01" ] }, { "cite": "384 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492089, 2492692, 2488557 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0277-02", "/nc/325/0277-01", "/nc/325/0277-03" ] }, { "cite": "379 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486785 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0513-01" ] }, { "cite": "380 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "94 N.C. 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App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549915 ], "year": 1978, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0001-01" ] }, { "cite": "284 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526892 ], "year": 1981, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0158-01" ] }, { "cite": "378 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528090 ], "year": 1989, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0453-01" ] }, { "cite": "391 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "326 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306228 ], "year": 1990, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0569-01" ] }, { "cite": "208 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547757 ], "year": 1974, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0067-01" ] }, { "cite": "241 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "125", "parenthetical": "quoting Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E.2d 223, 224 (1974)" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548789 ], "year": 1978, "pin_cites": [ { "page": "269", "parenthetical": "quoting Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E.2d 223, 224 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0267-01" ] }, { "cite": "302 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704611, 4707270, 4707468, 4707598, 4705784 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0194-02", "/nc/308/0194-01", "/nc/308/0194-05", "/nc/308/0194-04", "/nc/308/0194-03" ] }, { "cite": "298 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "411" }, { "page": "411" }, { "page": "411-12" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519377 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "42" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0040-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "pin_cites": [ { "page": "(j)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1154, "char_count": 33463, "ocr_confidence": 0.769, "pagerank": { "raw": 1.8169980263095846e-07, "percentile": 0.718677614023057 }, "sha256": "a8197a899fb51dfea5fcb9d1bf667f35b697eb76af90dc2f5235ed8522122b5d", "simhash": "1:4f6bd77a546e4c6e", "word_count": 5394 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and Lewis concur." ], "parties": [ "BOBBY CHARLES PATRICK and wife, OMIE PATRICK, Plaintiffs v. RONALD WILLIAMS, Professional Association and RONALD C. WILLIAMS, Individually, Defendants" ], "opinions": [ { "text": "COZORT, Judge.\nSeeking compensatory and punitive damages, plaintiffs sued defendants for legal malpractice. We affirm in part and reverse in part the trial court\u2019s Order of 19 January 1990 disposing of various motions and granting partial summary judgment to plaintiffs and defendants.\nThe case below has its origin in an automobile accident. On 5 December 1984 Bobby Charles Patrick (Patrick), while driving a truck owned by his employer, was involved in a collision with a truck driven by James H. Greene (Greene). As a result of Patrick\u2019s injuries, his damages exceed $63,000 for medical expenses, treatment, and lost wages.\nIn January 1985, plaintiffs (Patrick and his wife) employed defendant herein, Ronald Williams (Williams), to represent them in \u201call matters and things arising out of or connected with\u201d the accident of 5 December 1984. In July 1986, Williams, on behalf of the Patricks, filed an action alleging that Greene\u2019s negligence caused the accident and seeking recovery for damages including loss of consortium. The action joined the following parties as defendants in a declaratory judgment claim to determine Bobby Patrick\u2019s rights, if any, under applicable policies of the defendants: Iowa National Mutual Insurance Company (Iowa National), Bobby Patrick\u2019s liability insurance carrier; Michigan Mutual Insurance Company (Michigan Mutual), the liability insurance carrier of Patrick\u2019s employer; and State Farm Mutual Insurance Company (State Farm), Greene\u2019s liability insurance carrier. Iowa National became insolvent, and the North Carolina Insurance Guaranty Association (North Carolina Guaranty) was substituted in its place. North Carolina Guaranty, Michigan Mutual, and Greene filed answers to the complaint.\nIn December 1986, Greene\u2019s attorney sent to Williams an offer of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure. Although the text of that offer (in the amount of $25,000) is not included in the Record, Williams responded to the offer by sending a letter, dated 15 December 1986, to the attorneys for North Carolina Guaranty and Michigan Mutual. Williams\u2019 letter read as follows:\nPursuant to North Carolina General Statutes 20-279.21(b)(4) please accept this letter as written notice in advance of settlement between the underinsured motorist, Jimmy Harris Greene, and Bobby Charles Patrick. By copy of this letter we are notifying Mr. Greene\u2019s attorney that we accept the Offer of Judgment.\nThe record indicates that on 19 December 1986 Greene\u2019s attorney filed an affidavit, with attached copies of his offer and of Patrick\u2019s letter quoted above, to prove service and acceptance of the offer of judgment. The record also indicates that, on the same day, the clerk, in accordance with Rule 68, entered judgment for the plaintiffs against Greene in the amount of $25,000 plus costs. On 19 December 1986, Greene\u2019s attorney also petitioned the court to determine the distribution of the judgment proceeds pursuant to N.C. Gen. Stat. \u00a7 97-10.2(j) (1985). On 21 January 1987, an Order was entered directing that the proceeds of the judgment against Greene \u201cbe distributed in part to Plaintiffs, in part to counsel for Plaintiffs [Williams] and in part to Michigan Mutual [the workers\u2019 compensation insurance carrier].\u201d Neither the text of the 19 December 1986 Judgment against Greene, nor that of the 21 January 1987 Order, distributing the proceeds, appears of record.\nOn 27 January 1987, Williams filed a motion pursuant to Rule 60 of the North Carolina Rules of Civil Procedure to have the Judgment of 19 December 1986 set aside. After a hearing on 10 June 1987, the trial court entered an Order on 7 July 1987 denying the Rule 60 motion on the grounds, among others, that \u201cany alleged mistake claimed by the Plaintiffs in support of their motion [by Williams] to set aside the judgment of December 19, 1986 was a unilateral mistake, and a mistake of law, and it is therefore not appropriately remedied under Rule 60(b)(1).\u201d Williams failed to file an appeal of that Order, consequently, the Judgment of 19 December 1986 remains final.\nOn 26 August 1988 the Patricks filed a complaint alleging that Williams was negligent in providing legal services to them. The essence of their complaint was that Williams committed \u201cgross legal malpractice\u201d by accepting the $25,000 offer of judgment and failing to appeal the order denying relief from the judgment entered on 19 December 1986, \u201cthereby releasing forever . . . the primary tort-feasor, Jimmy H. Greene, and by operation of law . . . releasing\u201d the insurance companies providing applicable underinsured motorist coverage. Williams answered, and, after further pleadings, the parties made cross-motions for partial summary judgment.\nAmending an earlier order, the trial court entered an Order on 19 January 1990, which included the following dispositions: (1) denied defendants\u2019 motion to amend their answer; (2) granted defendants\u2019 motion for partial summary judgment on the plaintiffs\u2019 claim for punitive damages; (3) granted defendants\u2019 motion for a protective order from plaintiffs\u2019 discovery request for documents related to defendants\u2019 financial worth; (4) granted plaintiffs\u2019 motion for partial summary judgment \u201cin regard to negligence of the original tort feasor Jimmy Harris Greene\u201d; and (5) granted plaintiffs\u2019 motion for partial summary judgment on their claim regarding defendants\u2019 legal malpractice. Further, the order provided: (6) \u201cthat the liability insurance policies were in effect prior to the 1985 amendments to N.C.G.S. \u00a7 20-179.21(b)(4), and the Michigan Mutual policy provided $60,000.00 underinsurance coverage, and the Iowa National policy provided for $50,000.00 underinsurance coverage\u201d; and (7) \u201cft]hat the issue of any credit for amounts paid to or for the benefit of the Plaintiff, Bobby Charles Patrick, pursuant to the Workers\u2019 Compensation Act is not an issue before the Court at this time, and the Court declines to rule thereon.\u201d\nPlaintiffs and defendants appealed the Order of 19 January-1990. We shall discuss defendants\u2019 appeal first. Defendants assign error to the trial court\u2019s rulings in issues (1), (4), (5), and (7) above. We address these assignments of error seriatim.\nThe defendants contend that the trial court abused its discretion in denying their motion to amend their answer. We disagree.\nRule 15(a) of the North Carolina Rules of Civil Procedure provides that, after the time for amendment as a matter of right expires, \u201ca party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (1990). As defendants correctly note, a motion to amend is addressed to the sound discretion of the court, and its decision will not be disturbed on appeal without a clear showing of abuse of discretion. United Leasing Corp. v. Miller, 60 N.C. App. 40, 42, 298 S.E.2d 409, 411 (1982), disc. review denied, 308 N.C. 194, 302 S.E.2d 248 (1983). It does not appear of record that defendants moved, pursuant to Rule 52(a) of the North Carolina Rules of Civil Procedure, for findings and conclusions to support the court\u2019s decision. Without such a motion, formal findings and conclusions are not required, and it is \u201c \u2018presumed that the Judge, upon proper evidence, found facts to support\u2019 \u201d the ruling. Allen v. Wachovia Bank and Trust Co., 35 N.C. App. 267, 269, 241 S.E.2d 123, 125 (1978) (quoting Haiduven v. Cooper, 23 N.C. App. 67, 69, 208 S.E.2d 223, 224 (1974)).\nWhere there is no declared reason for the denial of a motion to amend, an appellate court \u201cmay examine any apparent reasons for such denial.\u201d Leasing Corp., 60 N.C. App. at 43, 298 S.E.2d at 411. Among the reasons justifying denial of amendment are: \u201c(a) undue delay, (b) bad faith or dilatory tactics, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments.\u201d Id. at 43, 298 S.E.2d at 411-12. In the case below defendants moved to amend their answer almost a full year after filing it and after both parties had conducted extensive discovery. Moreover, if the trial court had allowed amendment, plaintiffs would have been required to produce evidence of Greene\u2019s negligence approximately five years after the accident. Thus, at least on grounds of defendants\u2019 undue delay and undue prejudice to plaintiffs, the trial court\u2019s ruling was justified. We note finally that by their motion to amend the defendants sought to deny the allegation that plaintiff Bobby Patrick was damaged \u201cas a direct and proximate result of the negligence of James H. Greene.\u201d Defendants\u2019 original answer admitted that allegation, and the withdrawal of a judicial admission is not favored. 31A C.J.S. \u00a7 299 (1964). Accordingly, we hold the trial court did not abuse its discretion.\nWe turn next to defendants\u2019 contention that the trial court erred \u201cin allowing the plaintiffs\u2019 motion for partial summary judgment on the issue of the negligence of Jimmy H. Greene.\u201d Emphasizing in particular Greene\u2019s affidavit dated 27 November 1989, defendants contend that for purposes of summary judgment there remains a genuine issue of fact regarding Greene\u2019s negligence in the 1984 accident. We disagree.\nWe first note that summary judgment is to be granted when, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Beckwith v. Llewellyn, 326 N.C. 569, 573, 391 S.E.2d 189, 191 (1990).\nThe defendants\u2019 answer, filed 28 October 1988, expressly admitted the allegations contained in paragraphs one through eight and paragraph ten of the plaintiffs\u2019 complaint. Paragraphs seven, eight, and ten of that complaint made the following pertinent allegations of fact:\n7. That as a direct and proximate result of the negligence of the aforesaid James H. Greene, Plaintiff, Bobby C. Patrick, sustained serious, crippling and permanent injuries ....\n8. That as a direct and proximate result of the negligence of James H. Greene, as set forth above, the Plaintiff, Bobby C. Patrick, has been damaged to and about his person in excess of $10,000.00.\n* * * *\n10. That at the time of the automobile collision referred to above, on December 5, 1984, Plaintiff Bobby C. Patrick was a regular employee of Neese\u2019s Country Sausage Company, Inc., a North Carolina corporation, and was then and there operating a 1980 Chevrolet truck owned by his employer; that the aforesaid James H. Greene was operating a 1972 Ford vehicle and negligently collided with the vehicle being operated by Plaintiff Bobby C. Patrick ....\nA judicial admission is made for the purpose of removing a fact or facts from the realm of dispute between litigants. Such an admission \u201cis binding in every sense, absent a showing of fraud, misrepresentation, undue influence or mutual mistake. Evidence offered in denial of the admitted fact should undoubtedly be rejected.\u201d 2 H. Brandis, Brandis on North Carolina Evidence \u00a7 166 (3d ed. 1988). This Court has repeatedly held that a party seeking to avoid summary judgment cannot create a genuine issue of material fact by offering evidence \u201cwhich contradicts prior judicial admissions.\u201d Brown v. Lyons, 93 N.C. App. 453, 458, 378 S.E.2d 243, 246 (1989); accord, Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 162, 284 S.E.2d 697, 701 (1981); and Mortgage Co. v. Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978), disc. review allowed, 296 N.C. 585, 254 S.E.2d 32, aff\u2019d, 297 N.C. 696, 256 S.E.2d 688 (1979). Thus, for purposes of the case below, the trial court correctly held defendants to be bound by their solemn admissions, and it properly granted summary judgment on the issue of Greene\u2019s liability.\nWe turn next to defendants\u2019 contention that it was error to grant partial summary judgment for the plaintiffs \u201con the issue of defendants\u2019 legal malpractice.\u201d Citing Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985), defendants maintain that, \u201cin pursuing a claim for legal malpractice, the Plaintiff must prove that: (1) the original claim was valid; (2) it would have resulted in a Judgment in Plaintiff\u2019s favor; and (3) the Judgment would have been collectable.\u201d Defendants\u2019 argument misreads Rorrer and misstates the legal standard applicable to the case below. As a close reading of Rorrer makes plain, the three-prong test adopted by defendants applies only \u201c[w]here the plaintiff bringing suit for legal malpractice has lost another suit allegedly due to his attorney\u2019s negligence.\u201d (Emphasis added.) Rorrer, 313 N.C. at 361, 329 S.E.2d at 369. The plaintiffs\u2019 case against Greene never went to trial, nor to summary judgment, nor was it dismissed by the trial court. It was settled by acceptance of an offer of judgment.\nAs Rorrer notes, our Supreme Court\u2019s most thorough exposition of legal malpractice is found in Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954). The general standard applicable to an attorney, set out in Hodges and quoted with approval in Rorrer, is as follows:\nOrdinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client\u2019s cause.\n* * * *\n[An attorney] is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.\nRorrer, 313 N.C. at 341, 329 S.E.2d at 358 (emphasis added).\nApplying that standard to the case below, we note that the defendants\u2019 answer admitted that, as a result of the accident in 1984, plaintiff Bobby Patrick \u201csustained serious injuries and . . . that his medical expenses, treatment, and lost income are in excess of $63,000.\u201d As noted above, the defendants admitted that Greene\u2019s negligence caused the accident. The defendants further admitted that the Iowa National insurance policy provided \u201cto the plaintiffs . . . underinsured motorist coverage in the amount of $50,000\u201d and that Bobby Patrick\u2019s employer was insured by Michigan Mutual under a policy which \u201cwould and did inure to the benefit of the plaintiffs.\u201d\nRegarding the amount of Patrick\u2019s claim against Greene and Greene\u2019s ability to pay a judgment against him, Ronald Williams testified as follows:\nQ Now, did you ever form an opinion during your representation of Mr. Patrick as to what would be a fair amount to settle his case that you would recommend to him to accept?\nA No.\n* * * *\n[Y]ou don\u2019t know what assets that [Greene] may have had to satisfy [a] judgment, do you?\nA Specifically, no, I don\u2019t.\nQ You never had done anything about checking him out as to what he owned in the way of real estate or any other assets?\nA My recollection of that is this: That I asked his attorney about that and got an answer that he didn\u2019t have anything to speak of and likely that it was nothing in excess of the exemptions that are granted a judgment debtor in North Carolina.\nQ You relied then on what his attorney \u2014 Greene\u2019s attorney told you?\nA I believe that I did, yes. If I did not, I did not have other information. I\u2019ll tell you that.\nIn their complaint the plaintiffs stated that Williams did not consult with them before accepting Greene\u2019s offer of judgment. Williams answered the plaintiffs\u2019 allegation as follows: \u201c[T]he defendants have no independent recollection at this time of accepting the offer of $25,000 without consulting with the plaintiffs, nor do the defendants have any independent recollection of consulting with the plaintiffs prior to accepting said offer. As such, the allegations ... are denied.\u201d In support of their motion for partial summary judgment on the issue of defendants\u2019 malpractice, both plaintiffs presented affidavits stating that they had not authorized Williams to settle their lawsuit for $25,000, that they were not consulted about the offer of judgment in December 1986 when it was made, and that they first learned about the settlement when they received a letter from Williams \u201cdated July 8,1987 stating that the $25,000.00 had been paid into the Court.\u201d No response to these affidavits appears of record. Rule 56(e) of the North Carolina Rules of Civil Procedure provides in part as follows:\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (1990).\nRegarding Patrick\u2019s claims under the Iowa National and Michigan Mutual insurance policies, Williams testified that\nit was not my opinion when I accepted that money that it terminated his claim.\nQ When did it become your opinion?\nA I\u2019m not sure but it is now.\nQ It is now?\nA Uh huh.\nQ And what do you base that on?\nA The denial of my Rule 60-B motion and \u2014 yeah. The case is over.\nQ The case is over?\nA Yeah. I don\u2019t think he had any claims after that to them.\nQ When was it over?\nA I think it was over when the judge denied my Rule 60-B motion and I did not pursue the appeal.\nQ And when was that?\nA When the \u2014I guess on July 7, 1987, when the order was entered denying my Rule 60-B motion.\nQ And when did the time for appeal expire from that?\nA That would have been ten days later.\nThe defendants contend that Williams\u2019 letter of 15 December 1986 was intended solely \u201cto put the underinsured motorist [insurance] carriers on notice of the fact that a settlement was about to be accomplished with the insurance carrier for the primary defendant.\u201d They maintain that \u201cWilliams simply did not accept an Offer of Judgment as contemplated under Rule 68(a), but rather a letter he wrote to third parties was construed as an acceptance of [the offer of judgment] by the counsel for [Greene]\u201d and the clerk of court who entered judgment. In an affidavit submitted to the trial court in support of his Rule 60 motion, Williams stated, in pertinent part, that\n[discovery revealed that Michigan Mutual had $60,000 underinsured motorist coverage wherein Mr. Patrick was the \u201cinsured\u201d and that Iowa National had $50,000 underinsured motorist coverage wherein he was the \u201cinsured.\u201d Mr. Patrick has incurred over $62,000 in medical bills and lost wages alone which [have] been paid by the workers\u2019] compensation carrier.\n* * * *\nMr. Byrum, [counsel for Greene] drew and submitted his judgment on December 19, 1986 without first submitting it to Plaintiffs\u2019 counsel. It was signed that same day. If Mr. Byrum had submitted it to Plaintiffs\u2019 counsel beforehand, he would have had a chance to review it and require that the judgment be restricted to preserve Plaintiffs\u2019 claims against the underinsured motorist carriers and if Mr. Byrum and Plaintiffs\u2019 counsel could not have agreed on the language, no judgment would have been entered.\nNevertheless, as Williams conceded, he failed to file, much less perfect, an appeal of the trial court\u2019s Order of 7 July 1987, which ruled that no reason justified relief from the Judgment of 19 December 1986; consequently, the plaintiffs were barred from recovering their damages from insurance proceeds that would otherwise have been available.\nThus, the forecast of uncontroverted evidence was that Williams failed to estimate the value of plaintiff Bobby Patrick\u2019s claim against Greene, failed to make an independent evaluation of Greene\u2019s assets, failed to consult his clients about Greene\u2019s offer of judgment and to inform them of the entry of judgment pursuant to Rule 68 until more than six months had passed, and failed to appeal the trial court\u2019s Order of 7 July 1987 which terminated Bobby Patrick\u2019s claims to underinsured motorist coverage. These successive failures constitute an omission of reasonable care and diligence that proximately caused damage to his clients. Thus, the trial court properly entered summary judgment on the issue of defendants\u2019 legal malpractice.\nWe turn next to defendants\u2019 contention that the trial court erred in declining to decide whether the amount of underinsured motorist coverage otherwise available should be reduced by \u201cany amount paid to or for the benefit of the plaintiff, Bobby Charles Patrick, pursuant to the Workers\u2019 Compensation Act.\u201d We agree.\nWhile neither the plaintiffs\u2019 nor the defendants\u2019 motion for partial summary judgment gave notice of this issue, we note that it was argued before the trial court. The notice required by Rule 56(c) of the North Carolina Rules of Civil Procedure may be waived \u201cby participation in the hearing and by a failure to object to the lack of notice or failure to request additional time by the non-moving party.\u201d Westover Products v. Gateway Roofing, 94 N.C. App. 163, 166, 380 S.E.2d 375, 377 (1989). It does not appear of record that the plaintiffs either objected to or moved for additional time on this issue. Moreover, in response to the defendants\u2019 request for admissions, the plaintiffs conceded that the Michigan Mutual policy provided for reduction in underinsured motorist coverage \u201cby the amount of workers\u2019 compensation benefits paid to a party\u201d claiming underinsured motorist coverage. We note, finally, that the plaintiffs themselves moved for partial summary judgment with regard to the \u201camount of underinsurance [coverage] available\u201d to them. Calculation of and judgment on that amount would necessarily involve the reduction, if any, permissible for workers\u2019 compensation benefits paid to plaintiff Bobby Patrick. A reduction is permitted under some circumstances, see, e.g., Manning v. Fletcher, 324 N.C. 513, 379 S.E.2d 854 (1989), rehearing denied, 325 N.C. 277, 384 S.E.2d 517 (1989), appeal after remand, 102 N.C. App. 392, 402 S.E.2d 648 (1991), but not others, see, e.g., Ohio Casualty Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990).\nWe hold that plaintiffs waived the requirement for notice on this issue and that the trial court should have reached it before giving judgment on the amount of underinsurance coverage that would have been available to plaintiff Bobby Patrick. Accordingly, we reverse the trial court\u2019s order with respect to this issue and remand the case for a determination of the amount of workers\u2019 compensation benefits paid and the permissible reduction, if any, in the amount of underinsured motorist coverage.\nThe plaintiffs\u2019 cross-appeal assigns error to issues (2), (3), and (6) in the trial court\u2019s order of 19 January 1990. We address these in. turn.\nThe plaintiffs contend that the trial court erred in granting the defendants\u2019 motion for partial summary judgment on the issue of punitive damages. We agree.\nWhere a claim is grounded in negligence rather than an intentional tort, punitive damages may be recovered only for gross or wanton negligence. Paris v. Michael Kreitz, Jr., P.A., 75 N.C. App. 365, 373-74, 331 S.E.2d 234, 241, disc. review denied, 315 N.C. 185, 337 S.E.2d 858 (1985). Our Supreme Court, \u201cin references to gross negligence, has used that term in the sense of wanton conduct. . . . Conduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others.\u201d Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E.2d 393, 396-97 (1956). Where the pleadings and evidence warrant,\nan issue as to punitive damages should be submitted to the jury. Upon submission thereof, it is for the jury to determine (1) whether punitive damages in any amount should be awarded, and if so (2) the amount of the award. These questions are determinable by the jury in its discretion.\nId. at 26, 92 S.E.2d at 395. Applying these principles to the case below, we conclude that the forecast of evidence supports the submission of an issue as to punitive damages.\nWhile case law clearly establishes that attorneys may be held liable, among other breaches of duty, for failing to inform their clients of an existing settlement offer, see: 2 R. Mallen & J. Smith, Legal Malpractice \u00a7 24.36 (3d ed. 1989) and Annotation, Legal Malpractice in Settling or Failing to Settle Client\u2019s Case, 87 A.L.R. 3d 168, 183-85 (1978), neither the plaintiffs nor the defendants cite case law from this or other jurisdictions bearing on punitive damages as applied to facts substantially the same as those involved in the case below. We are aware of no case law precisely on point. Our review of plaintiffs\u2019 evidence below leads us to the conclusion that the successive failures of the defendants constituted gross negligence. Plaintiffs\u2019 forecast of evidence showed that defendants failed to determine the assets of the original alleged tort-feasor, failed to estimate the value of plaintiffs\u2019 claim, accepted a binding settlement offer without consulting plaintiffs, did not perfect an appeal of the trial court\u2019s denial of his motion to set aside the judgment reflecting the settlement, and failed to disclose the entry of judgment for more than six months, which prohibited plaintiffs from being able to make a claim for any other available insurance proceeds. We thus hold the plaintiffs are entitled to submit to the jury an issue as to punitive damages. This is not to say that every claim involving the breach of a fiduciary duty nor every action involving legal malpractice supports a claim for punitive damages. But where, as here, plaintiffs offer evidence that defendants engaged in a repeated course of conduct which constituted a callous or intentional indifference to the plaintiffs\u2019 rights, the plaintiffs have made out a claim for punitive damages. Accordingly, summary judgment for the defendants on the issue of punitive damages is reversed.\nWe turn next to the plaintiffs\u2019 contention that the trial court erred in granting the defendants\u2019 motion for a protective order regarding plaintiffs\u2019 discovery proceedings on defendants\u2019 net worth. Because the evidence supports the submission of an issue as to punitive damages, the trial court\u2019s order on this issue was in error and is reversed.\nFinally, in view of our holding that the trial court erred in declining to decide whether the underinsured motorist coverage that would- otherwise have been available should be reduced by workers\u2019 compensation benefits paid, we need not reach the plaintiffs\u2019 assignment of error to the trial court\u2019s conclusion that the \u201cMichigan Mutual policy provided $60,000.00 underinsurance coverage, and the Iowa National policy provided for $50,000.00 underinsurance coverage.\u201d Upon remand the trial must first determine whether a reduction for benefits paid under workers\u2019 compensation applies before calculating the applicable amounts of underinsured motorist coverage.\nIn summary, we hold:\n(1) The trial court did not err in denying defendants\u2019 motion to amend their answer;\n(2) The trial court erred in granting summary judgment for defendants on the issue of punitive damages;\n(3) The trial court erred in granting defendants\u2019 motion for a protective order regarding defendants\u2019 financial worth;\n(4) The trial court did not err in granting summary judgment for plaintiffs in regard to the negligence of the original tort-feasor Greene;\n(5) The trial court did not err in granting summary judgment for plaintiffs on the issue of defendants\u2019 legal malpractice; and\n(6) The trial court erred in declining to decide the issue of whether to reduce the amount of coverage available by payments made pursuant to the Workers\u2019 Compensation Act.\nAffirmed in part, reversed in part, and remanded.\nJudges WELLS and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Charles M. Welling for plaintiff appellants-appellees.", "Hedrick, Eatman, Gardner & Kincheloe, by Mel J. Garofalo, for defendant appellants-appellees." ], "corrections": "", "head_matter": "BOBBY CHARLES PATRICK and wife, OMIE PATRICK, Plaintiffs v. RONALD WILLIAMS, Professional Association and RONALD C. WILLIAMS, Individually, Defendants\nNo. 9026SC350\n(Filed 2 April 1991)\n1. Rules of Civil Procedure \u00a7 15 (NCI3d)\u2014 motion to amend\u2014 undue delay in filing \u2014 undue prejudice to opposing party\nThe trial court did not err in denying defendants\u2019 motion to amend their answer where defendants filed the motion almost a full year after filing the answer and after both parties had conducted extensive discovery; if the trial court had allowed the amendment, plaintiffs would have been required to produce evidence of an automobile driver\u2019s negligence approximately five years after the accident giving rise to the claims here; thus the trial court\u2019s ruling was justified at least on grounds of defendants\u2019 undue delay and undue prejudice to plaintiffs; by their motion defendants sought to deny one of plaintiffs\u2019 crucial allegations which the original answer had admitted; and the withdrawal of a judicial admission is not favored.\nAm Jur 2d, Pleading \u00a7\u00a7 309, 310.\n2. Rules of Civil Procedure \u00a7 56.3 (NCI3d)\u2014 negligence of driver\u2014 admission in answer \u2014 summary judgment on negligence question proper\nIn an action for legal malpractice arising from defendants\u2019 representation of plaintiffs in a negligence action which in turn arose from an automobile accident, there was no merit to defendants\u2019 contention that the trial court erred in allowing plaintiffs\u2019 motion for partial summary judgment on the issue of negligence of the automobile driver, since defendants\u2019 answer specifically admitted allegations in plaintiffs\u2019 complaint with regard to the driver\u2019s negligence.\nAm Jur 2d, Pleading \u00a7 179; Summary Judgment \u00a7\u00a7 6, 32, 41.\n3. Attorneys at Law \u00a7 45 (NCI4th|\u2014 malpractice \u2014 successive failures of attorney to take action \u2014 summary judgment for client proper\nThe trial court properly entered summary judgment for plaintiffs on the issue of defendants\u2019 legal malpractice where the forecast of uncontroverted evidence was that defendant attorney failed to estimate the value of plaintiffs\u2019 claim against a negligent automobile driver, failed to make an independent evaluation of the driver\u2019s assets, failed to consult plaintiffs about the driver\u2019s offer of judgment and to inform them of the entry of judgment pursuant to Rule 68 until more than six months had passed, and failed to appeal the trial court\u2019s order which terminated plaintiffs\u2019 claims to underinsured motorist coverage, since these successive failures constituted an omission of reasonable care and diligence which proximately caused damage to plaintiffs, his clients.\nAm Jur 2d, Attorneys at Law \u00a7\u00a7 199, 202, 206; Summary Judgment \u00a7 26.\n4. Rules of Civil Procedure \u00a7 56.1 (NCI3d)\u2014 malpractice \u2014 issue argued but not pleaded \u2014 waiver of notice requirement \u2014 failure of court to rule on issue \u2014error\nIn a legal malpractice action arising from defendants\u2019 representation of plaintiff in a negligence action which in turn arose from an automobile accident, the trial court erred in declining to decide whether the amount of underinsured motorist coverage otherwise available should be reduced by any amounts paid to or for the benefit of plaintiff pursuant to the Workers\u2019 Compensation Act, although neither plaintiffs\u2019 nor defendants\u2019 motion for partial summary judgment gave notice of this issue, where plaintiffs waived the notice requirement by failing to object or move for additional time on this issue; plaintiffs admitted that the policy providing for underinsured motorist coverage also provided for reduction in that coverage by the amount of workers\u2019 compensation benefits paid to a party; and plaintiffs themselves moved for partial summary judgment with regard to the amount of underinsurance coverage available to them.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 316, 320; Summary Judgment \u00a7\u00a7 14, 30.\n5. Attorneys at Law \u00a7 49 (NCI4th)\u2014 malpractice \u2014 punitive damages \u2014court\u2019s refusal to submit to jury \u2014 error\nIn an action for legal malpractice, plaintiffs\u2019 forecast of evidence was sufficient to support submission of an issue as to punitive damages based on gross negligence where it tended to show that defendants failed to determine the assets of the original alleged tortfeasor, failed to estimate the value of plaintiffs\u2019 claim, accepted a binding settlement offer without consulting plaintiffs, did not perfect an appeal of the trial court\u2019s denial of their motion to set aside the judgment reflecting the settlement, and failed to disclose the entry of judgment for more than six months, which prohibited plaintiffs from being able to make a claim for available underinsured motorist insurance.\nAm Jur 2d, Attorneys at Law \u00a7 226.\nAllowance of punitive damages in action against attorney for malpractice. 13 ALR4th 95.\nAPPEAL by plaintiffs and defendants from judgment of Judge Chase Saunders entered 19 January 1990 out of court and out of session in MECKLENBURG County Superior Court. Heard in the Court of Appeals 24 October 1990.\nCharles M. Welling for plaintiff appellants-appellees.\nHedrick, Eatman, Gardner & Kincheloe, by Mel J. Garofalo, for defendant appellants-appellees." }, "file_name": "0355-01", "first_page_order": 385, "last_page_order": 400 }