{ "id": 5313597, "name": "GRADY LEE BEAVER and wife, NANCY BEAVER v. LARRY P. HAMPTON and LARRY O. HAMPTON", "name_abbreviation": "Beaver v. Hampton", "decision_date": "1992-05-05", "docket_number": "No. 9122SC50", "first_page": "172", "last_page": "180", "citations": [ { "type": "official", "cite": "106 N.C. App. 172" } ], "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": "394 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "100 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526349 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/100/0096-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "502" }, { "page": "611-12" }, { "page": "502" } ], "opinion_index": 0 }, { "cite": "329 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555126 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "364 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358498 ], "year": 1988, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0484-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "347 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "412", "parenthetical": "citing Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982)" } ], "opinion_index": 0 }, { "cite": "318 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737049 ], "year": 1986, "pin_cites": [ { "page": "137-38", "parenthetical": "citing Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0133-01" ] }, { "cite": "331 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526613 ], "year": 1985, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0077-01" ] }, { "cite": "621 F.2d 777", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 482359 ], "year": 1980, "pin_cites": [ { "parenthetical": "after a motion in limine is overruled a party must object to preserve an error for appellate review" } ], "opinion_index": 0, "case_paths": [ "/f2d/621/0777-01" ] }, { "cite": "107 L.Ed.2d 49", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "pin_cites": [ { "parenthetical": "an objection is required to preserve error in the admission of testimony or the allowance of cross-examination even when a party has unsuccessfully moved in limine to suppress that testimony or cross-examination" } ], "opinion_index": 0 }, { "cite": "493 U.S. 823", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11356288, 11356961, 11356641, 11357640, 11356874, 11356461, 11356720, 11357457, 11356562, 11357075, 11356792, 11356383 ], "year": 1989, "pin_cites": [ { "parenthetical": "an objection is required to preserve error in the admission of testimony or the allowance of cross-examination even when a party has unsuccessfully moved in limine to suppress that testimony or cross-examination" } ], "opinion_index": 0, "case_paths": [ "/us/493/0823-01", "/us/493/0823-09", "/us/493/0823-05", "/us/493/0823-12", "/us/493/0823-08", "/us/493/0823-03", "/us/493/0823-06", "/us/493/0823-11", "/us/493/0823-04", "/us/493/0823-10", "/us/493/0823-07", "/us/493/0823-02" ] }, { "cite": "871 F.2d 1266", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10537247 ], "opinion_index": 0, "case_paths": [ "/f2d/871/1266-01" ] }, { "cite": "926 F.2d 1539", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10548246 ], "year": 1991, "pin_cites": [ { "parenthetical": "where a party objected to the admissibility of evidence in a motion in limine but did not interpose an objection at trial, the issue was not preserved for appeal" } ], "opinion_index": 0, "case_paths": [ "/f2d/926/1539-01" ] }, { "cite": "178 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559625 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0052-01" ] }, { "cite": "223 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] } ], "analysis": { "cardinality": 719, "char_count": 17786, "ocr_confidence": 0.776, "pagerank": { "raw": 5.167832529124378e-07, "percentile": 0.939688761777231 }, "sha256": "48ff58ac3c2ade6d40b5c477f466278a2cbd96e48ea3dde45391794eb1d5f0f9", "simhash": "1:c663e14c5c4ab8e0", "word_count": 2933 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Parker concur." ], "parties": [ "GRADY LEE BEAVER and wife, NANCY BEAVER v. LARRY P. HAMPTON and LARRY O. HAMPTON" ], "opinions": [ { "text": "WYNN, Judge.\nOn 23 May 1988, a tractor-trailer dump truck driven by the plaintiff, Grady Beaver, collided with a car driven by the defendant, Larry P. Hampton, and owned by his father, defendant, Larry O. Hampton. The defendant driver\u2019s twin brother, Lynn Hampton, was a passenger in the Hampton car and was killed as a result of the accident. Prior to trial, the defendant\u2019s liability carrier tendered its policy limit of $25,000, and the trial court allowed it to withdraw from the case. Nationwide Mutual Insurance Company, (\u201cNationwide\u201d), is the underinsured carrier for the plaintiffs, and on appeal is the unnamed defendant-appellee.\nInitially, plaintiffs filed a motion in limine to exclude any evidence or reference to injuries suffered by persons other than the plaintiff. This motion was denied. During the trial, the issue of Larry P. Hampton\u2019s negligence was not contested, and the jury considered only the following four issues: (1) Mr. Beaver\u2019s contributory negligence; (2) the measure of Mr. Beaver\u2019s damages; (3) whether Larry P. Hampton\u2019s negligence caused Mrs. Beaver\u2019s loss of consortium; and (4) the measure of Mrs. Beaver\u2019s damages. The jury found that Mr. Beaver was not contributorily negligent and awarded him damages in the amount of $30,000. The jury also found that Larry Hampton\u2019s conduct did not cause Nancy Beaver\u2019s loss of consortium. The trial court entered judgment in conformity with the jury\u2019s verdict and, after deducting the $25,000 previously paid by defendant\u2019s liability carrier, awarded prejudgment interest only on the remaining $5,000.\nThereafter, the plaintiffs moved to amend the judgment and for a new trial, contending in both motions, that the jury was \u201cswayed by sympathy for the defendant because he suffered the loss of his brother,\u201d which resulted in an artificially low damage award. From the denial of both motions and the judgment of the trial court, the plaintiffs appeal.\nI.\nAt the outset, we consider the defendant-appellee\u2019s motion made before this Court to dismiss the plaintiffs\u2019 appeal pursuant to Rule 3 of Appellate Procedure which provides that notice of appeal must be given thirty days after the entry of a judgment or order. See N.C.R. App. P. 3. Nationwide contends that its counsel, Richard L. Pinto, did not represent the named defendants (\u201cthe Hamptons\u201d) 'during the trial of this case. As such, Nationwide maintains that any notice of appeal that was given to Mr. Pinto was not sufficient to serve the named defendants, the Hamptons.\nThe Hamptons\u2019 liability insurance carrier retained Mr. Michael R. Greeson to represent them for this case; however, the trial court allowed him to withdraw following payment of the liability carrier\u2019s policy limits. At trial, Mr. Pinto apparently represented the Hamptons as well as Nationwide. He not only conducted the examination of witnesses for the defense, but it is significant to note that he conducted the direct examination of the Hamptons.\nThe judgment in this case was entered on 8 June 1990, and the plaintiffs filed and served Mr. Pinto with their notice of appeal on 28 June 1990, well within the thirty day limitation of Rule 3. Moreover, in response to correspondence sent to him, Larry O. Hampton told the attorney for the plaintiffs that any correspondence pertinent to the Hamptons should be sent to Richard Pinto. Furthermore, we note that on all documents filed in the appeal before this Court, Mr. Pinto appears as the attorney of record representing \u201cthe defendants.\u201d We, therefore, deny appellees\u2019 motion to dismiss this appeal under Rule 3.\nII.\nThe plaintiffs assign error to the trial court\u2019s denial of their motion in limine to prohibit the introduction of evidence that the defendant-driver\u2019s brother died in the accident and that other persons were injured. First, we consider whether plaintiffs have preserved this issue for appeal after failing to object when the evidence was introduced at trial.\nThe issue of whether the making of a pretrial motion in limine, in and of itself, is sufficient to preserve a question for appeal is a matter of first impression for this state. Plaintiffs contend however, that Rule 10 of Appellate Procedure and Rule 46 of Civil Procedure support their position. Rule 10 in pertinent part provides:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\nN.C.R. App. P. 10 (1991). Rule 46 in pertinent part provides:\n[W]hen there is objection to the admission of evidence including a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence including the same line of questioning.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 46(a)(1) (1990). We disagree with the plaintiffs\u2019 contention that these rules allow the preservation of an issue solely through the making of a motion in limine.\nIn State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976), our Supreme Court addressed an analogous issue. The defendant, in Wilson, contended that his pretrial motion to suppress was sufficient to preserve for appeal the question of the admissibility of evidence which was admitted during the trial of his case without objection. Instructively, the Court held that, \u201c[i]t does not suffice merely to file a pretrial motion to suppress evidence which the trial judge has not heard and ordinarily will not hear until it is offered at trial. To challenge the admissibility of in-court testimony defendant is required to interpose at least a general objection when such evidence is offered.\u201d Id. at 537, 223 S.E.2d at 315 (citing State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971)).\nParaphrasing the rationale of Wilson, we conclude that it is not sufficient to simply file a pretrial motion in limine to exclude evidence which the trial judge has not heard. As in Wilson, to preserve for appeal matters underlying a motion in limine, the movant must make at least a general objection when the evidence is offered at trial. We note that our ruling is consistent with the holdings of other jurisdictions on this issue. See McEwen v. City of Norman, Okl., 926 F.2d 1539 (10th Cir. 1991) (where a party objected to the admissibility of evidence in a motion in limine but did not interpose an objection at trial, the issue was not preserved for appeal); Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266 (5th Cir.), cert, denied, 493 U.S. 823, 107 L.Ed.2d 49 (1989) (an objection is required to preserve error in the admission of testimony or the allowance of cross-examination even when a party has unsuccessfully moved in limine to suppress that testimony or cross-examination); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980) (after a motion in limine is overruled a party must object to preserve an error for appellate review).\nIn the instant case, the record reflects that the trial judge did not conduct a full hearing of the evidentiary matters underlying the motion in limine. As such, the trial judge did not hear the undesired evidence until it was offered at trial. During the trial, of the eleven testimonial references to the death of Lynn Hampton, plaintiffs objected only once. Moreover, the plaintiffs made no objection during the trial to testimony regarding injuries to other persons. Applying the above-stated rule to these facts, we find that plaintiffs failed to preserve these issues for appeal. Accordingly, plaintiffs\u2019 assignment of error is dismissed.\nIII.\nThe plaintiff, Grady Beaver, next assigns error to the trial court\u2019s denial of his motion for a new trial pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 59. He contends that he is entitled to a new trial under Rule 59(a)(6) because the jury\u2019s award of $30,000 was inadequate and was given under the influence of passion or prejudice. For the reasons that follow, we find his contention to be without merit.\nA motion under Rule 59(a)(6) is \u201cdirected to the sound discretion of the trial court.\u201d Haas v. Kelso, 76 N.C. App. 77, 82, 331 S.E.2d 759, 762 (1985). \u201cConsequently, an appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Andrews v. Peters, 318 N.C. 133, 137-38, 347 S.E.2d 409, 412 (1986) (citing Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982)). Furthermore, when there is no stipulation of damages, the testimony of witnesses becomes evidence for the sole province of the jury to consider. Blow v. Shaughnessy, 88 N.C. App. 484, 494, 364 S.E.2d 444, 449 (1988).\nIn the case at bar, the proximate cause of Mr. Beaver\u2019s injuries was hotly contested at trial. Thus, while there was evidence that Mr. Beaver\u2019s medical bills amounted to $69,440.54 and that he suffered $38,000 in lost wages, there was also evidence that Mr. Beaver\u2019s ruptured disc could have occurred on several other occasions, and may not have been caused by the subject accident. Mr. Beaver testified at trial that he injured his back on three occasions after the accident: On 30 July 1988, while twisting around in his truck; on 11 September 1988, while moving a bed; and on 23 September 1988 while maneuvering on some steps. Furthermore, there was testimony from the plaintiffs\u2019 own medical expert agreeing that \u201cthere was no way to know\u201d whether the vehicular accident caused the disc protrusion and its subsequent rupture or whether the accident merely strained some of the plaintiff\u2019s ligaments and another event caused the disc to rupture.\nThis testimony, left properly to the sole province of the jury for consideration, was sufficient for the jury to enter the subject award of damages. As such, the trial judge\u2019s denial of the plaintiff\u2019s motion for a new trial did not amount to a miscarriage of justice. Accordingly, we find the trial court did not abuse its discretion in denying the plaintiffs\u2019 motion for new trial on the issue of damages.\nIV.\nIn their final assignment of error, plaintiffs contend that the trial court erred in failing to award prejudgment interest on the full amount of the judgment from the time of filing. We agree.\nThe relevant statutory provision is N.C. Gen. Stat. \u00a7 24-5 (1991), which provides:\nIn an action other than contract, the portion of money judgment designated by the fact finder as compensatory damages bears interest from the date the action is instituted until the judgment is satisfied. Interest on an award in an action other than contract shall be at the legal rate.\nId. This statute clearly authorizes the payment of prejudgment interest on the full amount of the judgment.\nIn the subject case, the trial court granted prejudgment interest on only the $5,000 that remained due on the $30,000 judgment after subtracting the $25,000 policy limits paid by the liability carrier after the filing date of the complaint but before the judgment. Thus, the trial court erred in failing to award prejudgment interest on the $25,000 paid by the liability carrier from the filing date until it was paid by the liability carrier on 30 March 1989. Regarding the remaining $5,000, prejudgment interest should be taxed from the date of filing to the time of judgment as a cost, less any interest already paid.\nHaving determined that prejudgment interest must be taxed to the full judgment in this case, we next consider whether the liability carrier or the underinsured carrier must pay this additional cost. Recently, in Sproles v. Greene, 329 N.C. 603, 407 S.E.2d 497 (1991), the Supreme Court reversed an earlier- decision by this Court, see Sproles v. Greene, 100 N.C. App. 96, 394 S.E.2d 691 (1991). The Sproles decision interpreted two liability payment provisions in which one policy provided that the insurer would pay \u201call costs taxed against the insured,\u201d and another policy provided a promise to pay for \u201call defense costs\u201d incurred. The Court differentiated the two provisions by noting that the promise to pay \u201call costs taxed against the insured\u201d was quite broad and included \u201cprejudgment interest because that is a cost taxed against the insured,\u201d Sproles, 329 N.C. at 611, 407 S.E.2d at 502, whereas the promise to pay \u201call defense costs\u201d referred to only those costs associated with the process of defending the claim \u201csuch as attorney fees, deposition expenses, and court costs.\u201d Id. The Court further held that absent any statutory or policy provision that required the liability carrier to pay prejudgment interest in excess of its policy limits, the prejudgment interest cost should not be taxed against the liability insurance carrier. Id. at 611-12, 407 S.E.2d at 502.\nIn the case at hand, we note that the record is devoid of references to the specific language of the insurer\u2019s liability policy. Without knowledge of the contents of each insurer\u2019s policy, we are unable to determine which carrier should be responsible for paying the prejudgment interest. Upon remand, the trial court should review the policies in question and absent any statutory provision that requires the liability carrier to pay prejudgment interest in excess of its liability limits, the prejudgment interest properly payable to the plaintiffs should be paid by the underinsured carrier.\nFor the foregoing reasons, we affirm the judgment of the trial court in part and reverse on the issue of prejudgment interest with instructions to the trial court to enter a judgment accordingly.\nAffirmed in part; reversed and remanded in part,\nJudges Wells and Parker concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Harris, Pressly & Thomas, by Scott E. Lawrence and Edwin Pressly, for plaintiff s-appellants.", "Nichols, Caffrey, Hill, Evans & Murrelle, by Matthew L. Mason, for Nationwide Mutual Insurance Company, unnamed defendantappellee." ], "corrections": "", "head_matter": "GRADY LEE BEAVER and wife, NANCY BEAVER v. LARRY P. HAMPTON and LARRY O. HAMPTON\nNo. 9122SC50\n(Filed 5 May 1992)\n1. Appeal and Error \u00a7 203 (NCI4th)\u2014 notice of appeal \u2014 served on counsel for insurance carrier \u2014sufficient\nService of notice of appeal on an insurance carrier was sufficient and a motion to dismiss the appeal pursuant to Rule 3 of the Rules of Appellate Procedure was denied where the insurance carrier contended that its counsel, Pinto, did not represent the named defendants at trial and that any notice of appeal given to Pinto was not sufficient to serve defendants where Pinto conducted the examination of witnesses for the defense at trial, conducted the direct examination of defendants, one of the defendants told the attorney for the plaintiffs that any pertinent correspondence should be sent to Pinto, and Pinto appeared as attorney of record representing \u201cthe defendants\u201d on all documents filed in the appeal.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 316-318.\n2. Appeal and Error \u00a7 147 (NCI4th)\u2014 denial of motion in limine\u2014 no objection when evidence introduced \u2014 issue not preserved\nPlaintiff in an action arising from an automobile collision failed to preserve for appeal issues involving evidence that defendant-driver\u2019s brother was killed in the accident and that other people were injured where plaintiff filed a motion in limine to exclude that evidence, the trial court did not conduct a full hearing of the evidentiary matters underlying the motion and did not hear the undesired evidence until it was offered for trial, and plaintiffs objected only once to eleven testimonial references to the death and made no objection to testimony regarding injuries to other persons. It is not sufficient to simply file a pretrial motion in limine to exclude evidence which the trial judge has not heard; the movant must make at least a general objection when the evidence is offered at trial. N.C.G.S. \u00a7 1A-1, Rule 46; N.C. R. App. P. 10.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 517, 545, 553.\n3. Rules of Civil Procedure \u00a7 59 (NCI3d)\u2014 automobile collision case \u2014amount of damages \u2014motion for a new trial \u2014denied\nThe trial court did not abuse its discretion in an action arising from an automobile collision by denying plaintiff Grady Beaver\u2019s motion for a new trial on the grounds that award of $30,000 was inadequate and given under the influence of passion or prejudice. While there was evidence that Mr. Beaver\u2019s medical bills amounted to $69,440.54 and that he suffered $38,000 in lost wages, there was also evidence that his ruptured disc could have occurred on several other occasions and may not have been caused by the subject accident.\nAm Jur 2d, Appeal and Error \u00a7 887; Trial \u00a7 1955.\n4. Judgments \u00a7 55 (NCI3d)\u2014 prejudgment interest \u2014not awarded on full amount \u2014 error\nThe trial court erred in an action arising from an automobile collision by not awarding prejudgment interest on the full amount of the judgment from the time of filing where the court granted prejudgment interest on only the $5,000 that remained due on the $30,000 judgment after subtracting the $25,000 policy limits the liability carrier paid after the filing date of the complaint but before the judgment. N.C.G.S. \u00a7 24-5 clearly authorizes the payment of prejudgment interest on the full amount of the judgment. Because the record was devoid of references to the specific language of the insurer\u2019s liability policy, the trial court upon remand should review the policies in question and, absent any statutory provision that requires the liability carrier to pay prejudgment interest in excess of its liability limits, the prejudgment interest properly payable to the plaintiffs should be paid by the underinsured carrier.\nAm Jur 2d, Automobile Insurance \u00a7 428.\nAPPEAL by plaintiffs from judgment entered 8 June 1990 in IREDELL County Superior Court by Judge F. Fetzer Mills. Heard in the Court of Appeals 15 October 1991.\nHarris, Pressly & Thomas, by Scott E. Lawrence and Edwin Pressly, for plaintiff s-appellants.\nNichols, Caffrey, Hill, Evans & Murrelle, by Matthew L. Mason, for Nationwide Mutual Insurance Company, unnamed defendantappellee." }, "file_name": "0172-01", "first_page_order": 202, "last_page_order": 210 }