{ "id": 8520727, "name": "LAURA HACKETT, Plaintiff v. THERESA J. BONTA, Defendant", "name_abbreviation": "Hackett v. Bonta", "decision_date": "1993-12-21", "docket_number": "No. 924SC1147", "first_page": "89", "last_page": "98", "citations": [ { "type": "official", "cite": "113 N.C. App. 89" } ], "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": "342 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "316 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4699748 ], "year": 1986, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0543-01" ] }, { "cite": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "876", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "year": 1984, "pin_cites": [ { "page": "229", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "311 F. Supp. 68", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3095083 ], "year": 1970, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/f-supp/311/0068-01" ] }, { "cite": "442 F.2d 329", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769654 ], "year": 1971, "pin_cites": [ { "page": "331", "parenthetical": "\" 'waiver . .. may not rest mechanically on some act such as the filing of a complaint or answer but must find a basis in prejudice to the objecting party' \"" } ], "opinion_index": 0, "case_paths": [ "/f2d/442/0329-01" ] }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "24-25", "parenthetical": "\"[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.\"" }, { "page": "785", "parenthetical": "\"[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.\"" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "588 P.2d 1261", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "465 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334479 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/465/0001-01" ] }, { "cite": "645 P.2d 1192", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "183 Cal. Rptr. 360", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1982, "opinion_index": 0 }, { "cite": "31 Cal. 3d 584", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1980031 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/cal-3d/31/0584-01" ] }, { "cite": "276 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645825 ], "year": 1981, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "588 P. 2d 1261", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "151 Cal. Rptr. 837", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "23 Cal. 3d 180", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2268456 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/cal-3d/23/0180-01" ] }, { "cite": "600 P.2d 1060", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "158 Cal. Rptr. 828", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "opinion_index": 0 }, { "cite": "25 Cal. 3d 418", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2270586 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/cal-3d/25/0418-01" ] }, { "cite": "302 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520181 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0052-01" ] }, { "cite": "401 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523254 ], "year": 1991, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0255-01" ] }, { "cite": "422 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "336-37", "parenthetical": "quoting Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522260 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "44", "parenthetical": "quoting Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0042-01" ] } ], "analysis": { "cardinality": 829, "char_count": 20138, "ocr_confidence": 0.734, "pagerank": { "raw": 9.27771892435983e-08, "percentile": 0.5118213455687957 }, "sha256": "7c9d26eb11af27b49aaafcf470f26c92c23c1fb842fa265fa7ce2ec40e30d6e2", "simhash": "1:59034bb21e2f1d7a", "word_count": 3195 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and GREENE concur." ], "parties": [ "LAURA HACKETT, Plaintiff v. THERESA J. BONTA, Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nPlaintiff appeals from the trial court\u2019s 27 July 1992 and 26 August 1992 orders. After careful review, we reverse and remand for entry of an order compelling arbitration.\nI.\nIn her first two assignments of error, plaintiff contends that the trial court committed reversible error in denying plaintiff\u2019s motion to compel arbitration and in granting defendant\u2019s motion to stay arbitration \u201con the grounds that plaintiff\u2019s insurance contract with defendant State Farm Mutual Insurance Company grants plaintiff a contractual right to arbitrate.\u201d We agree.\nThis is an interlocutory appeal arising from the denial of plaintiff\u2019s motion to stay the proceedings and compel arbitration. Initially, we note that a trial court\u2019s \u201c \u2018order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.\u2019 \u201d Bennish v. N.C. Dance Theater, 108 N.C. App. 42, 44, 422 S.E.2d 335, 336-37 (1992) (quoting Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)); Sims v. Ritter Constr., Inc., 62 N.C. App. 52, 302 S.E.2d 293 (1983); G.S. 1-277(a); G.S. 7A-27(d)(1).\nOur Supreme Court has held that;\nWaiver of a contractual right to arbitration is a question of fact. E.g., Davis v. Blue Cross of Northern California, 25 Cal. 3d 418, 158 Cal. Rptr. 828, 600 P.2d 1060 (1979); Doers v. Golden Gate Bridge Etc. Dist., 23 Cal. 3d 180, 151 Cal. Rptr. 837, 588 P. 2d 1261 (1979). Because of the strong public policy in North Carolina favoring arbitration, see N.C. Gen. Stat. \u00a7 1-567.3 (1983); Thomas v. Howard, 51 N.C. App. 350, 355-56, 276 S.E.2d 743, 747 (1981), courts must closely scrutinize any allegation of waiver of such a favored right. See Keating v. Superior Court, 31 Cal. 3d 584, 183 Cal. Rptr. 360, 645 P.2d 1192 (1982), dismissed in part and rev\u2019d in part on other issues sub nom. Southland Corp. v. Keating, 465 U.S. 1, 79 L.Ed.2d 1 (1984); Doers v. Golden Gate Bridge Etc. Dist., 23 Cal. 3d 180, 151 Cal. Rptr. 837, 588 P.2d 1261. See also Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L.Ed.2d 765, 785 (1983) (\u201c[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.\u201d). Because of the reluctance to find waiver, we hold that a party has impliedly waived its contractual right to arbitration if by its delay or by actions it takes which are inconsistent with arbitration, another party to the contract is prejudiced by the order compelling arbitration. See, e.g., Carolina Throwing Co. v. S & E Novelty Corp., 442 F.2d 329, 331 (4th Cir. 1971) (\u201c \u2018waiver . .. may not rest mechanically on some act such as the filing of a complaint or answer but must find a basis in prejudice to the objecting party\u2019 \u201d) (quoting Batson Y. & F. M. Gr., Inc. v. Saurer-Allma GmbH-Allgauer M., 311 F. Supp. 68, 73 (D.S.C. 1970)).\nCyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984) (footnote omitted). See also Servomation Corp. v. Hickory Constr. Co., 316 N.C. 543, 544, 342 S.E.2d 853, 854 (1986); Bennish, 108 N.C. App. 42, 422 S.E.2d 335. Here, our close scrutiny leads us to conclude that given the terms of plaintiff\u2019s policy with State Farm and given State Farm\u2019s actions, plaintiff\u2019s demand for arbitration of her UIM claim was timely made.\nState Farm contends that because plaintiff filed suit against defendant Bonta (another State Farm insured) several months prior to her (plaintiff\u2019s) written demand for arbitration, she thus nullified the effect of her demand to arbitrate under the terms of her own UIM policy. We disagree.\nWe note that plaintiff has two potential claims under two separate State Farm policies: the first is a claim against defendant Bonta\u2019s personal automobile liability policy with State Farm, while the second is a claim arising under the UIM coverage of her (plaintiff\u2019s) own personal automobile policy with State Farm. We further note that despite the existence of these separate claims brought forward by its own named insured, State Farm initially refused to assign two different adjusters and subsequently refused to assign two different attorneys to handle the respective claims against each policy. The North Carolina State Bar has issued an ethics opinion ruling that \u201can attorney may not represent the insured, her liability insurer, and the same insurer relative to underinsured motorist coverage carried by the plaintiff.\u201d See N.C. R.P.C. 154 (proposed 21 October 1992; approved 15 January 1993). State Farm contends that \u201c[i]t should be noted that by letter dated July 27, 1990, the defendant-appellee State Farm had clearly stated to counsel for the plaintiff-appellant that the company did not subrogate against their own insureds when payment was made under the underin-sured motorist coverage for another State Farm insured.\u201d Nevertheless, we do not find this argument persuasive as to the issue of plaintiff\u2019s right to arbitration under the express terms of her UIM policy.\nPlaintiff argues that by the express terms of her UIM policy she \u201cdid not have a right to seek payment from her State Farm UIM coverage (and thus arbitrate) until State Farm, as the liability carrier, offered to pay the limits of the Bonta liability policy. State Farm refused to tender the liability limits until 18 months after suit was filed, in spite of demands by plaintiff which provided an objective basis for State Farm to conclude that the value of plaintiff\u2019s claim exceeded those liability limits.\u201d We agree.\nA provision under Coverage U1 of plaintiffs UIM policy, supra, specifically stated that \u201cWe [State Farm] will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payments of judgments or set-tlements_\u201d Prior to the time plaintiff filed suit against defendant, State Farm had refused plaintiff\u2019s demands for settlement in the amount of $25,000.00 under defendant\u2019s liability policy. Plaintiff filed suit against only defendant Bonta on 29 August 1990. Thereafter, plaintiff made repeated demands for payment under defendant\u2019s liability policy, all of which were declined by State Farm. Because State Farm assigned one attorney to handle both claims, until the 17 February 1992 offer (of $75,000.00) plaintiff could not reasonably assume that the limits of defendant\u2019s policy ($25,000.00) had been exhausted. Accordingly, we conclude that the arbitration rights under plaintiff\u2019s UIM policy were not triggered prior to State Farm\u2019s 17 February 1992 offer. We further note that Part C of plaintiff\u2019s UIM policy specifically states that if State Farm and \u201can insured do not agree: 1. Whether that person is legally entitled to recover damages under this Part; or 2. As to the amount of damages\u201d then the insured is entitled to make a written demand for arbitration. Nothing in plaintiff\u2019s UIM policy states that plaintiff\u2019s filing of a complaint against another State Farm insured for liability arising from the same insured event results in a waiver of plaintiff\u2019s right to arbitrate under her own UIM policy. By the terms of plaintiff\u2019s UIM policy, plaintiff\u2019s action against defendant was not inconsistent with, and did not prejudice, her right to seek arbitration under the terms of her (plaintiff\u2019s) own policy. In sum, we conclude that plaintiff\u2019s demand for arbitration was not untimely or unreasonably delayed by plaintiff. Because of our disposition of this issue, we need not address the remaining issues raised by plaintiff.\nWe hold that the trial court erred and that the cause must be submitted to arbitration pursuant to plaintiff\u2019s timely demand under the terms of the insurance contract. Accordingly, the trial court\u2019s 27 July 1992 and 26 August 1992 orders are reversed and the cause is remanded for proceedings not inconsistent with this opinion.\nReversed and remanded.\nJudges ORR and GREENE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Brumbaugh & Mu, by Richard A. Mu, for plaintiff-appellant.", "Marshall, Williams & Gorham, by William Robert Cherry, Jr., for defendant-appellee State Farm Mutual Automobile Insurance Company.", "Hamilton, Bailey, Way & Brothers, by Glenn S. Bailey, for defendant-appellee Theresa J. Bonta." ], "corrections": "", "head_matter": "LAURA HACKETT, Plaintiff v. THERESA J. BONTA, Defendant\nNo. 924SC1147\n(Filed 21 December 1993)\nArbitration and Award \u00a7 14 (NCI4th) \u2014 automobile accident \u2014 liability coverage \u2014 UIM coverage \u2014motion to compel arbitration\nThe trial court erred by denying plaintiffs motion to compel arbitration and in granting defendant\u2019s motion to stay arbitration where both plaintiff and defendant have automobile liability insurance policies with State Farm; plaintiff was a passenger in defendant\u2019s vehicle when defendant drove across the center line of a highway and struck another vehicle, injuring two of its passengers; plaintiff suffered injuries allegedly causing approximately $20,000.00 in medical expenses and approximately $388,000.00 in other damages; plaintiff informed State Farm that her injuries exceeded the limits of defendant\u2019s liability policy and that she would proceed against her underin-sured coverage; plaintiff filed a complaint against defendant alleging negligence; settlement offers were exchanged; plaintiff demanded arbitration under her UIM policy and State Farm refused to arbitrate. A provision under plaintiff\u2019s UIM policy specifically stated that \u201cWe [State Farm] will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payments of judgments or settlements . . .\u201d; prior to the time plaintiff filed suit against defendant, State Farm had refused plaintiff\u2019s demands for settlement in the amount of $25,000.00 under defendant\u2019s liability policy; plaintiff filed suit against only defendant Bonta on 29 August 1990; thereafter, plaintiff made repeated demands for payment under defendant\u2019s liability policy, all of which were declined by State Farm; plaintiff could not reasonably assume that the limits of defendant\u2019s policy ($25,000.00) had been exhausted until the 17 February 1992 offer (of $75,000.00) because State Farm assigned one attorney to handle both claims; and the arbitration rights under plaintiff\u2019s UIM policy were not triggered prior to State Farm\u2019s 17 February 1992 offer. Plaintiff\u2019s demand for arbitration was not untimely or unreasonably delayed by plaintiff.\nAm Jur 2d, Arbitration and Award \u00a7 71 et seq.\nAppeal by plaintiff from orders entered 27 July 1992 and 26 August 1992 by Judge George R. Greene in Onslow County Superior Court. Heard in the Court of Appeals 7 October 1993.\nBoth plaintiff and defendant have automobile liability insurance policies with State Farm Mutual Automobile Insurance Company (hereinafter \u201cState Farm\u201d). State Farm insures defendant Theresa J. Bonta, the driver, pursuant to a personal automobile policy with liability limits of $25,000.00/$50,000.00. Plaintiff Laura Hackett, a passenger in defendant Bonta\u2019s vehicle, has $100,000.00 in uninsured/underinsured (UM/UIM) coverage for each of her two vehicles under a personal automobile policy with State Farm.\nOn the evening of 17 February 1990, plaintiff was a passenger in defendant\u2019s vehicle. While driving near Wilmington, defendant drove across the center line of the highway and struck another vehicle, injuring two of its passengers. As a result of the collision, plaintiff suffered injuries allegedly causing approximately $20,000.00 in medical expenses and approximately $388,000.00 in other damages.\nBy a letter dated 30 March 1990, plaintiff\u2019s counsel informed State Farm that \u201cthis claim will be worth more than $25,000,\u201d referring to the limits of defendant\u2019s liability policy. By a letter dated 6 April 1990, plaintiff\u2019s counsel described plaintiff\u2019s injuries, stated that these \u201cinjuries exceedfed] the $25,000.00 insurance available\u201d under defendant\u2019s policy, and inquired as to \u201cthe extent of the other parties\u2019 injuries.\u201d By a letter to State Farm dated 15 June 1990, plaintiff\u2019s counsel stated that \u201cour client\u2019s injuries are well in excess of the $25,000 and for that reason [we] wish to settle this claim so we may proceed against our client\u2019s underin-sured coverage.\u201d The record does not contain a reply by State Farm. By a letter dated 20 July 1990, plaintiff\u2019s counsel again demanded payment in the amount of $25,000.00 under defendant\u2019s policy. Plaintiff also stated that there was $200,000.00 in coverage under plaintiff\u2019s UIM policy and that documentation for that claim was being gathered pursuant to State Farm\u2019s request. The record reflects that throughout this time, State Farm had assigned one insurance adjuster to negotiate both the claim against defendant\u2019s liability policy and the claim against plaintiff\u2019s UIM policy. Plaintiff\u2019s counsel informed State Farm inter alia in the 20 July 1990 letter that assigning one adjuster for both claims was a conflict of interest impeding the settlement process. By a letter dated 27 July 1990, State Farm, referring to plaintiff\u2019s 15 June 1990 and 20 July 1990 demand letters, informed plaintiff\u2019s counsel that it needed more information regarding plaintiff\u2019s claim and that\n[w]e do not feel that we have a conflict since we do not as a company subrogate against our own insureds when we make payments under the underinsured motorist coverages for another State Farm insured. As of July 27, 1990 [State Farm\u2019s] Wilmington [office] still does not have the information necessary to evaluate the two claims in that area. If it is necessary for us to exhaust the liability limits under the Bonta policy to conclude the two claims in Wilmington we will do so, and this will obviously increase State Farm\u2019s liability to your client under her own underinsured motorist coverage as there will be no offset or the offset will be less than some prorated amount.\nOn 30 July 1990, State Farm retained attorney Glenn Bailey.\nOn 29 August 1990, plaintiff filed a complaint against defendant Bonta alleging negligence. Mr. Bailey filed an answer on defendant\u2019s behalf denying negligence and demanding a jury trial. Both parties conducted discovery. Trial was scheduled for 16 March 1992.\nBy a letter dated 17 February 1992, Mr. Bailey forwarded plaintiff\u2019s counsel a letter stating as follows:\nRE: Laura Hackett v. Theresa J. Bonta\nIn the Superior Court of Onslow County, Civil File No. 90-CVS-2200\nDear Dick [A. Mu, plaintiff\u2019s counsel]:\nWith this letter we are offering $75,000.00 in settlement of the above case. If this is rejected, we would welcome a more realistic demand.\nThis letter did not specify the policy under which State Farm was offering settlement, though the amount offered exceeded the maximum payable to one victim pursuant to defendant\u2019s liability policy. An affidavit submitted by plaintiffs counsel states that this was State Farm\u2019s \u201cfirst offer to settle this matter.\u201d On 14 March 1992, plaintiff\u2019s counsel transmitted to Mr. Bailey a letter rejecting the offer, offering a covenant not to execute judgment in excess of defendant Bonta\u2019s insurance coverage in return for $25,000.00 (defendant\u2019s liability policy limits), complaining of Mr. Bailey\u2019s conflict of interest, setting forth a counteroffer in the amount of \u201c$165,000.00 as a compromise settlement under the UIM coverage of her [plaintiff\u2019s] policy,\u201d and stating that \u201c[i]f State Farm is not willing to settle for $165,000.00 we demand arbitration of all issues of Laura Hackett\u2019s [plaintiff\u2019s] right to damages pursuant to her policy.\u201d In demanding arbitration for the UIM claim, the provision upon which plaintiff relied reads as follows:\nPart C \u2014 Uninsured Motorists Coverage \u2014 Coverage U\nArbitration\nIf we and an insured do not agree:\n1. Whether that person is legally entitled to recover damages under this Part; or\n2. As to the amount of the damages;\nthe insured may make a written demand for arbitration. In this event, arbitration will be conducted in accordance with the Rules of the American Arbitration Association. Judgment on the award decided by the arbitrators may be entered in any court having jurisdiction. Each party agrees the arbitration award is binding.\nIf an insured elects not to arbitrate:\n1. Our liability will be determined only in a legal action against us; and\n2. We may require the insured to join the owner or operator of the vehicle as a party defendant. We may not require this in any action to determine if a vehicle is an uninsured motor vehicle.\nNote: The following endorsement applies when the endorsement number appears in the declarations.\n6273CC.4 Uninsured/Underinsured Motorists Coverage-\nNorth Carolina (Coverage Ul)\nI. Part C. is amended as follows:\nA. The following is added to the first paragraph of the Insuring Agreement:\nWe will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payments of judgments or settlements, unless we:\n1. Have been given written notice in advance of a settlement between an insured and the owner or operator of the uninsured motor vehicle, as defined in Section 5 of the definition of uninsured motor vehicle; and\n2. Consent to advance payment to the insured in the amount equal to the tentative settlement.\nState Farm refused to arbitrate. On 16 March 1992, plaintiff filed a motion to compel arbitration and filed a motion for a continuance of the trial due to defendant\u2019s disclosure of \u201can expert witness during the week prior to trial which surprised plaintiff and did not allow her sufficient time to take a discovery deposition of said witness.\u201d A hearing for both motions was scheduled for 30 March 1992. On 30 March 1992, the trial court granted plaintiff\u2019s motion for a continuance. Though the record is unclear, Mr. Bailey\u2019s affidavit states that on that same date plaintiff withdrew the motion to compel arbitration \u201cwithout hearing\u201d and subsequently \u201cfile[d] suit against the carrier, the prayer of which was only that arbitration be compelled, and later took a voluntary dismissal of that suit.\u201d The affidavit of plaintiff\u2019s counsel states that \u201c[n]o decision was made [sic] in the motion to compel arbitration, and it was re-calendared for July 27, 1992. Plaintiff filed a separate action to compel arbitration after defendant refused to arbitrate. However, when plaintiff learned that the AAA [American Arbitration Association] would proceed with arbitration without an order to compel, plaintiff dismissed this case. . .\u201d Mr. Bailey\u2019s affidavit states that plaintiff filed a written demand for arbitration with the AAA and that defendant objected to the scheduling of arbitration.\nOn 15 June 1992, State Farm, through William R. Cherry, Jr., as counsel, filed notice of its \u201cappearance pursuant to the terms and conditions of G.S. 20-279.21(b)(4) as an unnamed party, though not named in the caption of the pleadings, and electing to defend in the name of the named defendant without appearing as a party herein.\u201d Plaintiff claims that on that same day \u201cState Farm, as the UIM carrier, also served on plaintiff a motion to stay arbitration with no reference to affidavits in support of its motion.\u201d Plaintiff claims that thirty-five days later State Farm mailed affidavits to plaintiff in support of its motion to stay arbitration and that the affidavits were not received until nine days following their mailing, which was two days after the hearing was held. Plaintiff contends that these affidavits contain allegations which are erroneous and which were prejudicial to her motion to compel arbitration.\nOn 27 July 1992, the trial court entered an order granting State Farm\u2019s motion to stay arbitration and denying plaintiff\u2019s motion to compel arbitration. Plaintiff filed a motion to reconsider the 27 July 1992 order, alleging that she had an inadequate opportunity under G.S. 1A-1, Rule 6(d) and (e) to respond to State Farm\u2019s affidavits. On 26 August 1992, the trial court denied plaintiff\u2019s motion for reconsideration. Plaintiff appeals.\nBrumbaugh & Mu, by Richard A. Mu, for plaintiff-appellant.\nMarshall, Williams & Gorham, by William Robert Cherry, Jr., for defendant-appellee State Farm Mutual Automobile Insurance Company.\nHamilton, Bailey, Way & Brothers, by Glenn S. Bailey, for defendant-appellee Theresa J. Bonta." }, "file_name": "0089-01", "first_page_order": 119, "last_page_order": 128 }