{
  "id": 5313386,
  "name": "THE HANOVER INSURANCE COMPANY, Subrogee of ZIMP ATKINSON, Plaintiff v. AMANA REFRIGERATION, INC., Defendant",
  "name_abbreviation": "Hanover Insurance v. Amana Refrigeration, Inc.",
  "decision_date": "1992-04-07",
  "docket_number": "No. 9116SC372",
  "first_page": "79",
  "last_page": "83",
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    "name": "N.C."
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  "last_updated": "2023-07-14T19:35:11.401464+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Arnold and Parker concur."
    ],
    "parties": [
      "THE HANOVER INSURANCE COMPANY, Subrogee of ZIMP ATKINSON, Plaintiff v. AMANA REFRIGERATION, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nIn its first assignment of error, plaintiff contends its claim is not barred by the statute of limitations for two reasons: (1) Rule 4(j2)(2), N.C. Rules of Civil Procedure, allowed plaintiff an additional sixty days after the action was dismissed within which to file a new action; and (2) the appropriate statute of limitations applicable to this action was the four-year limitation period for Uniform Commercial Code (UCC) actions and not the three-year limitations period under G.S. 1-52.\nIn the present case, since plaintiff\u2019s cause of action arose when Atkinson\u2019s house burned on 15 September 1986 the first action was timely filed on 11 September 1989. However, when the first action was dismissed, plaintiff did not refile this action until 2 May 1990, more than three years after the cause of action arose. Plaintiff contends that since the first action was commenced within the three-year statute of limitations period then pursuant to Rule 4(j2)(2), N.C. Rules of Civil Procedure, the statute of limitations may not be raised as a defense since plaintiff refiled the second action within sixty days of the 12 April 1990 order of dismissal. The \u201csaving provision\u201d of this Rule provides that if an action was initially commenced within the period of limitation and service is completed within sixty days from the date the service is declared invalid, then the statute of limitations may not be pled as a defense. However, a careful review of this saving provision indicates it is limited in scope and may only be employed where: (1) the original service was made by registered or certified mail upon a person residing in the addressee\u2019s dwelling house or usual place of abode; and (2) it later appears \u201cthe person who received the receipt at the addressee\u2019s dwelling house or usual place of abode was not a person of suitable age and discretion residing therein.\u201d In the present case, with defendant being a corporation, service must be made upon its registered agent, an agent authorized by law, or the officers, directors or managing agent of the corporation as per Rule 4(j)(6), N.C. Rules of Civil Procedure. Service was attempted by registered mail as provided in Rule 4(j)(6)(c), however CT Corporation System was not the registered agent or agent authorized by law to accept service for defendant. It is therefore apparent that the savings provision is not applicable to these facts and the limitation period was not extended.\nWe now turn to plaintiff\u2019s contention that its claims for breach of express and implied warranty are governed by the four-year statute of limitations under G.S. 25-2-725. Plaintiff alleges that its insured sustained damages to his real property as a result of a defect in the air conditioning unit manufactured by defendant. The question then is whether plaintiff can maintain this action for breach of warranty where the four-year statute of limitations under G.S. 25-2-725 applies; otherwise, the action is governed by the three-year statute of limitations. In Bernick v. Jurden, 306 N.C. 435, 444-445, 293 S.E.2d 405, 411-412 (1982), the Court held that \u201cwhere bodily injury to the person or a defect in property is an essential element of the cause of action\u201d the three-year statute of limitations found in G.S. 1-52 should be utilized. Here, plaintiff\u2019s action is not based on the air conditioning unit being defective, but instead is based on this defective unit causing a fire which resulted in damages to the Atkinson house. The loss sought to be recovered is the damage to this real property and not just an action to recover the value or a replacement of the air conditioning unit based on breach of warranty. Therefore, the trial judge properly concluded the applicable limitation period was three years under G.S. 1-52.\nIn its final assignment of error, plaintiff argues that the 18 December 1990 order providing that it could recommence this action within one year of the date of the original dismissal order vitiated the applicable statute of limitations. According to plaintiff, it has complied with this order by commencing this action within one year of the dismissal of the first action. In Long v. Fink, 80 N.C.App. 482, 342 S.E.2d 557 (1986), this Court dealt with a situation similar to the present case. There, plaintiff instituted his first action on 1 August 1979, the last date the action could be commenced before being barred by the applicable statute of limitations. Defendant was never served and the summons expired 30 October 1979. On 19 May 1980, the trial court dismissed the action without prejudice and in its order specified that plaintiff could refile within one year. Plaintiff argued his claim was not barred because his action was refiled within one year as provided by the trial court. This Court disagreed and said that when the action was discontinued by operation of law on 30 October 1979, the statute of limitations had run its remaining course and the court\u2019s order of voluntary dismissal on 19 May 1980 allowing plaintiff another year within which to refile the action did not have the effect of extending the limitations period.\nIn the present case, defendant was not properly served with summons and complaint and the limitations period expired 15 September 1989. As in Long v. Fink, supra, the trial court\u2019s order providing that plaintiff had an additional year to refile does not have the force of extending the limitations period which had already run its course. The trial court\u2019s entry of summary judgment in favor of the defendant is\nAffirmed.\nJudges Arnold and Parker concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Bailey & Dixon, by Gary S. Parsons and David S. Coats; and Huggins & Pounds, by Dallas M. Pounds, for plaintiff appellant.",
      "McLeod, Senter & Hockman, P.A., by William L. Senter, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "THE HANOVER INSURANCE COMPANY, Subrogee of ZIMP ATKINSON, Plaintiff v. AMANA REFRIGERATION, INC., Defendant\nNo. 9116SC372\n(Filed 7 April 1992)\n1. Rules of Civil Procedure \u00a7 4 (NCI3d)\u2014 service on corporation \u2014 wrong registered agent \u2014sixty day savings provision not applicable\nThe sixty day savings provision against the statute of limitations found in N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2), was not applicable where service by registered mail was attempted, but not on the registered agent or agent authorized by law to accept service for defendant. A careful review of the savings provision indicates it is limited in scope and may only be employed where the original service was made by registered or certified mail upon a person residing in the addressee\u2019s dwelling house or usual place of abode, and it later appears that the person who received the receipt was not a person of suitable age and discretion residing therein.\nAm Jur 2d, Limitation of Actions \u00a7 212; Process \u00a7\u00a7 234, 265.\n2. Limitation of Actions \u00a7 4.1 (NCI3d) \u2014 defective air conditioner\u2014 house fire \u2014three year statute of limitations\nThe trial judge properly concluded that the applicable limitation period was three years under N.C.G.S. \u00a7 1-52, rather than four years under N.C.G.S. \u00a7 25-2-725, where the action was not based on the air conditioner being defective, but on this defective unit causing a fire which resulted in damages to the house. The loss sought to be recovered is the damage to the real property and not just the value or replacement of the air conditioning unit.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 121, 122.\n3. Limitation of Actions \u00a7 12 (NCI3d)\u2014 improper service \u2014 order that action could be recommenced within one year \u2014 limitations period not extended\nAn order by the trial court that plaintiff could recommence its action within one year of the date of the original dismissal for improper service did not have the force of extending the limitations period, which had already run its course.\nAm Jur 2d, Limitation of Actions \u00a7 311.\nAPPEAL by plaintiff from order entered 18 December 1990 by Judge Dexter Brooks in ROBESON County Superior Court. Heard in the Court of Appeals 12 February 1992.\nIn October 1984, Zimp Atkinson (Atkinson), plaintiff\u2019s insured, purchased an air conditioner manufactured by Amana Refrigeration, Inc. (defendant). On 15 September 1986, this air conditioning unit allegedly malfunctioned, resulting in a fire which destroyed Atkinson\u2019s house. The Hanover Insurance Company (plaintiff) paid Atkinson\u2019s losses and became subrogated to his rights.\nOn 11 September 1989, plaintiff commenced an action against defendant by filing a complaint and issuing a summons. Defendant moved to dismiss this action since service of the summons and complaint was made upon CT Corporation System which was not the registered agent for accepting service of process. On 12 April 1990, the trial court granted defendant\u2019s motion to dismiss. On 2 May 1990 plaintiff filed the present action and defendant moved for summary judgment on 7 September 1990. On 18 December 1990, the trial court entered an order granting defendant\u2019s requested relief on the grounds that plaintiff\u2019s action was barred by the applicable three-year statute of limitations, however the order dismissing the first action was amended on that same date to provide that plaintiff could \u201crecommence its action against defendant at any time within one year after the date of entry of this dismissal order.\u201d\nBailey & Dixon, by Gary S. Parsons and David S. Coats; and Huggins & Pounds, by Dallas M. Pounds, for plaintiff appellant.\nMcLeod, Senter & Hockman, P.A., by William L. Senter, for defendant appellee."
  },
  "file_name": "0079-01",
  "first_page_order": 109,
  "last_page_order": 113
}