{ "id": 8525300, "name": "MARLENE R. GRIMSLEY and DENNY A. GRIMSLEY, Plaintiffs v. LEROY JEROME NELSON, Defendant", "name_abbreviation": "Grimsley v. Nelson", "decision_date": "1994-12-20", "docket_number": "No. 943SC145", "first_page": "329", "last_page": "339", "citations": [ { "type": "official", "cite": "117 N.C. App. 329" } ], "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": "352 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "445", "parenthetical": "party waives defense of lack of personal jurisdiction by filing motion for discretionary change of venue without first or simultaneously asserting defense" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168257 ], "year": 1987, "pin_cites": [ { "page": "265", "parenthetical": "party waives defense of lack of personal jurisdiction by filing motion for discretionary change of venue without first or simultaneously asserting defense" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0263-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "372", "parenthetical": "when statute uses word \"may,\" its provisions will ordinarily be construed as permissive and not mandatory" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "page": "97", "parenthetical": "when statute uses word \"may,\" its provisions will ordinarily be construed as permissive and not mandatory" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "204 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "833" }, { "page": "834" } ], "opinion_index": 0 }, { "cite": "285 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564075 ], "year": 1974, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0313-01" ] }, { "cite": "284 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526756 ], "year": 1981, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0086-01" ] }, { "cite": "344 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524964 ], "year": 1986, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0658-01" ] }, { "cite": "266 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "27" }, { "page": "28" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553723 ], "year": 1980, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0787-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)(3)(a)" }, { "page": "(b)(3)(a)" } ], "opinion_index": 0 }, { "cite": "370 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "367 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 1 }, { "cite": "322 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516033 ], "year": 1988, "pin_cites": [ { "page": "276" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0271-01" ] }, { "cite": "352 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "84 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168611 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc-app/84/0415-01" ] }, { "cite": "410 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "104 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523226 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/104/0608-01" ] }, { "cite": "235 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "293 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561424 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/293/0067-01" ] }, { "cite": "97 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "241" } ], "opinion_index": 1 }, { "cite": "245 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616988 ], "year": 1957, "pin_cites": [ { "page": "642" } ], "opinion_index": 1, "case_paths": [ "/nc/245/0640-01" ] }, { "cite": "265 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "635" } ], "opinion_index": 1 }, { "cite": "46 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551326 ], "year": 1980, "pin_cites": [ { "page": "462" } ], "opinion_index": 1, "case_paths": [ "/nc-app/46/0459-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(1)(a)" } ], "opinion_index": 1 }, { "cite": "353 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "The release of the tort-feasor without the consent of the underinsured motorist carrier discharges the carrier because of the derivative nature of the insurer's liability," } ], "opinion_index": 1 }, { "cite": "319 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748910, 4741584, 4744945, 4742929, 4747543 ], "year": 1987, "pin_cites": [ { "parenthetical": "The release of the tort-feasor without the consent of the underinsured motorist carrier discharges the carrier because of the derivative nature of the insurer's liability," } ], "opinion_index": 1, "case_paths": [ "/nc/319/0224-04", "/nc/319/0224-02", "/nc/319/0224-01", "/nc/319/0224-03", "/nc/319/0224-05" ] }, { "cite": "350 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "83 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358716 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/83/0428-01" ] }, { "cite": "446 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "The complete release of the tortfeasor releases the underinsured motorist carrier as well" } ], "opinion_index": 1 }, { "cite": "116 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522604 ], "year": 1994, "pin_cites": [ { "parenthetical": "The complete release of the tortfeasor releases the underinsured motorist carrier as well" } ], "opinion_index": 1, "case_paths": [ "/nc-app/116/0124-01" ] }, { "cite": "378 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "25" } ], "opinion_index": 1 }, { "cite": "324 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487753 ], "year": 1989, "pin_cites": [ { "page": "294" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0289-01" ] }, { "cite": "411 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "105 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521275 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/nc-app/105/0074-01" ] }, { "cite": "204 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "833" }, { "page": "833" } ], "opinion_index": 1 }, { "cite": "285 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564075 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "319" } ], "opinion_index": 1, "case_paths": [ "/nc/285/0313-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)(3)" }, { "page": "(b)(3)", "parenthetical": "emphasis added" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 870, "char_count": 25244, "ocr_confidence": 0.731, "pagerank": { "raw": 2.1708356074816555e-07, "percentile": 0.7710588532381618 }, "sha256": "5e883eda16e59a3236079d72acb676c5dd4c147a0be99cf4603964a64357a08d", "simhash": "1:3941dee4f7ef9602", "word_count": 4094 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge WYNN dissents." ], "parties": [ "MARLENE R. GRIMSLEY and DENNY A. GRIMSLEY, Plaintiffs v. LEROY JEROME NELSON, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nMarlene R. Grimsley and Denny A. Grimsley (plaintiffs) appeal from orders entered 5 April 1993, 21 September 1993, and 1 November 1993 in Craven County Superior Court, granting Leroy Jerome Nelson\u2019s (defendant) motion to dismiss for lack of personal jurisdiction, denying plaintiffs\u2019 written motion to enlarge and oral motion for extension of time to serve the original summons, and granting Travelers Indemnity Company\u2019s (Travelers) motion for judgment on the pleadings.\nOn 18 May 1992, plaintiffs.filed a complaint against defendant for personal injuries and loss of consortium arising out of an automobile accident on 4 June 1989 allegedly caused by defendant\u2019s negligence. At the time of the accident, Travelers provided uninsured motorist (UM) coverage for plaintiffs. On 21 May 1992, plaintiffs, pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(a), served Travelers a copy of the summons and complaint. On 22 May 1992, Deputy Sheriff Paul Mathes allegedly personally served a summons on defendant at 2005 New Bern Avenue, New Bern, North Carolina. Travelers retained the law firm of Johnson & Lambeth to represent it.\nBy letter dated 11 June 1992, Robert White Johnson of Johnson & Lambeth wrote Mr. Albeon G. Anderson (Mr. Anderson), counsel for plaintiffs, confirming their telephone conversation in which Mr. Johnson advised Mr. Anderson \u201cthat Travelers had retained me to represent its interest as uninsured motors carrier .... If at some time it appears that you are unable to settle the case I will be notified and will file a response of pleadings and will undertake to get the discovery answered.\u201d By letter dated 13 July 1992, Ms. Beth M. Bryant (Ms. Bryant) of Johnson & Lambeth wrote Mr. Anderson acknowledging \u201cthe extension of time within which to file defensive pleadings which you granted Bob Johnson in the referenced case.\u201d On 12 October 1992, Ms. Bryant filed an answer which stated \u201c[t]he undersigned Counsel, appearing in the name of the Defendant, answers the Complaint of the Plaintiff as follows.\u201d She signed the answer \u201cBeth M. Bryant Appearing in the name of the Defendant.\u201d This answer denied the allegations set forth in plaintiffs\u2019 complaint and further alleged that Marlene R. Grimsley (Mrs. Grimsley) was contributorily negligent. On 22 October 1992, plaintiffs filed a reply, denying that Mrs. Grimsley was contributorily negligent and further alleging that defendant had the last clear chance to avoid the accident.\nOn 9 November 1992, Ms. Bryant filed an amended answer which provided:\nNOW COMES THE TRAVELERS INDEMNITY Co., WITHIN 30 DAYS OF FILING OF ITS ORIGINAL ANSWER . . . AND AMENDS ITS ANSWER IN THIS PROCEEDING ... BY DELETING SAID ANSWER IN ITS ENTIRETY AND SUBSTITUTING THE FOLLOWING:\nThe Travelers Indemnity Co., appearing in the name of Defendant Leroy Jerome Nelson pursuant to N.C. Gen. Stat. 20-279.21(b), answers the Complaint of the Plaintiff as follows.\nIn its amended answer, Travelers moved to dismiss plaintiffs\u2019 action under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim against defendant upon which relief can be granted and moved to dismiss under Rules 12(b)(2), 12(b)(4), and 12(b)(5) of the North Carolina Rules of Civil Procedure for lack of personal jurisdiction over defendant, insufficiency of process, and insufficiency of service of process. Travelers also denied the allegations contained in plaintiffs\u2019 complaint and alleged Mrs. Grimsley was contributorily negligent. Ms. Bryant signed the amended answer \u201cBeth M. Bryant . . . Attorney for The Travelers Indemnity Co., Appearing in the name of the Defendant.\u201d\nOn 24 November 1992, plaintiffs made a motion pursuant to Rule 12(f) of the North Carolina Rules of Civil Procedure to strike Traveler\u2019s amended answer filed 6 November 1992 because \u201cplaintiffs did not consent to the amended answer and leave of court has not been given.\u201d Also on 24 November 1992, plaintiffs moved for \u201can order for an enlargement of time within which to file an alias & pluries summons ... on the ground that the failure to act within the time prescribed was due to excusable neglect\u201d because Ms. Bryant and plaintiffs did not discover until later that the summons had been delivered to Leroy Jerome Nelson, Jr. instead of defendant. Plaintiffs also made an oral motion to extend time in which to serve the original summons. On 1 December 1992, Ms. Bryant filed a motion to amend answer which provided \u201cNow Comes Travelers Indemnity Co., through Counsel, and moves the Court for leave to amend its original Answer in this cause and file an Amended Answer\u201d \u201cbecause subsequent to receipt of Plaintiff\u2019s Reply, Counsel for the Movant learned that the named Defendant herein, Leroy Jerome Nelson, was never served with Complaint and Summons, notwithstanding purported service by the Sheriff reflected in the Court file.\u201d By order entered 5 April 1993, the trial court denied plaintiff\u2019s motions to enlarge and extend the time in which to serve the original summons, denied Traveler\u2019s motion to amend its answer, and allowed plaintiffs\u2019 motion to strike.\nOn 24 May 1993, David A. Stoller (Mr. Stoller), an attorney for the law firm of Dunn, Dunn & Stoller, filed a motion to dismiss which provided \u201cComes Now Defendant, Leroy Jerome Nelson, by and through the undersigned counsel and moves the Court to dismiss this action as against Defendant\u201d because \u201c[n]o Summons, Complaint or other process have been served upon this Defendant. The Summons issued with Complaint has expired. Because of an insufficiency of process, an insufficiency of service of process, or both, this Court lacks jurisdiction over the person of Defendant, Leroy Jerome Nelson.\u201d Mr. Stoller signed this motion \u201cDunn Dunn & Stoller Attorneys for Defendant By: David A. Stoller.\u201d\nBy order dated 21 September 1993, the trial court found it lacked jurisdiction over the person of defendant, granted defendant\u2019s motion to dismiss for lack of personal jurisdiction, and dismissed plaintiffs\u2019 action against defendant. Travelers then made a motion for judgment on the pleadings on the grounds that the 21 September 1993 order, dismissing the action as to defendant, resolved all issues raised by plaintiffs\u2019 complaint. By order entered 1 November 1993, the trial court allowed Travelers\u2019 motion and dismissed plaintiffs\u2019 action.\nThe issues presented are whether (I) Ms. Bryant was the attorney for defendant so that the answer filed by Ms. Bryant constitutes a general appearance by the defendant thereby waiving his defense of lack of personal jurisdiction; and (II) the UM carrier\u2019s motion for judgment on the pleadings should have been granted.\nI\nIt has long been the law in North Carolina that \u201ca general appearance by a party\u2019s attorney will dispense with process and service\u201d on the defendant. Williams v. Williams, 46 N.C. App. 787, 789, 266 S.E.2d 25, 27 (1980). Thus, the filing of an answer by the defendant\u2019s attorney (which constitutes a general appearance) which does not include the defense of lack of personal jurisdiction constitutes a waiver by the defendant of this defense if the defense had not been raised in a prior motion. Id. at 790, 266 S.E.2d at 28; N.C.G.S. \u00a7 1A-1, Rule 12(h)(1) (1990) (defense must be raised in pre-answer motion or in the answer). In this case, the issue is raised as to whether Ms. Bryant, in filing the 12 October 1992 answer, appeared as the defendant\u2019s attorney. If she did not, the answer she filed did not bind the defendant, and the defendant cannot be said to have made a general appearance and therefore waived his defenses to personal jurisdiction. If she did appear on behalf of the defendant, the filing of the answer was a waiver of the defendant\u2019s right to raise the defense of lack of personal jurisdiction.\nPlaintiffs argue that Ms. Bryant\u2019s signing of Travelers\u2019 answer \u201cAppearing in the name of the Defendant\u201d raises the presumption that Ms. Bryant had \u201cauthority to act for the client he or she professes to represent.\u201d J.I.C. Elec., Inc. v. Murphy, 81 N.C. App. 658, 660, 344 S.E.2d 835, 837 (1986). We disagree.\nUnder N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(a), if an insured institutes suit against an uninsured motorist, the insurer is bound by a final judgment against the uninsured motorist \u201cif the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist.\u201d N.C.G.S. \u00a7 20-279.21(b)(3)(a) (1993). Once an insurer is served with a copy of the summons, complaint or other process in a suit brought by an insured against an uninsured motorist, the insurer \u201cshall be a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name.\u201d Id.; see also James E. Snyder, Jr., North Carolina Automobile Insurance Law \u00a7 36-5 at 289-90 (2d ed. 1988).\nPlaintiffs, in serving Travelers a copy of the summons and complaint pursuant to Section 20-279.21(b)(3)(a), were aware that Travelers became an unnamed party to the action, entitled to file responsive pleadings if it so chose. Allowing a UM carrier to be an unnamed party that \u201cmay defend the suit in the name of the uninsured motorist\u201d allows a UM carrier to file an answer \u201cin the name of defendant\u201d to protect its interests, not defendant\u2019s interests, without the UM carrier identifying itself by name. See Paul W. Pretzel, Uninsured Motorists \u00a7\u00a7 60-61 at 143-46 (1972) (discussing possible conflicts of interest between UM carrier and uninsured motorist when suit is filed by insured against uninsured motorist).\nThe 12 October 1992 answer, viewed on its face, does not reveal that it was filed on behalf of Travelers. It does, however, reveal that it was filed by Ms. Bryant, an attorney known by the plaintiffs to be representing Travelers, and filed \u201cin the name of the defendant,\u201d the very language permitted by Section 20-279.21(b)(3)(a). Thus, because the filing of the 12 October 1992 answer was entirely consistent with Section 20-279.21(b)(3)(a) and because the record reveals that the plaintiffs were fully aware of the fact that Ms. Bryant, the attorney signing the answer, represented Travelers, there arises no presumption that Ms. Bryant represented the defendant. Accordingly, the answer did not constitute a general appearance by the defendant, and the defendant was not precluded from later raising the defense of lack of personal jurisdiction. Because there is no dispute that the defendant was not served with process, the trial court therefore correctly allowed the defendant\u2019s motion to dismiss.\nII\nTravelers argues that because \u201cTravelers has no liability to Plaintiffs if Plaintiffs cannot obtain a judgment against Defendant Nelson, all issues raised by the pleadings were resolved by virtue of the dismissal of this action as to Defendant Nelson and judgment on the pleadings was therefore appropriate.\u201d We disagree.\nJudgment on the pleadings is only proper where the pleadings fail to present any issue of fact for determination by a jury. Flexolite Elec. v. Gilliam, 55 N.C. App. 86, 88, 284 S.E.2d 523, 524 (1981). In an uninsured motorist case, a UM carrier\u2019s liability depends on whether the plaintiff is \u201clegally entitled to recover damages\u201d from the uninsured motorist, i.e., \u201ccan reduce his right to damage to judgment.\u201d Brown v. Casualty Co., 285 N.C. 313, 319, 204 S.E.2d 829, 833 (1974); see 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance \u00a7 7.2, at 247 (2d ed. 1992) (\u201cterm \u2018legally entitled\u2019 means that the injuries must result from the negligent conduct of an uninsured motorist\u201d). Although the action by the insured against an uninsured motorist is one \u201cfor the tort allegedly committed by the uninsured motorist\u201d so that \u201c[a]ny defense available to the uninsured tort-feasor should be available to the [UM] insurer,\u201d id. at 319, 204 S.E.2d at 834, the UM carrier must avail itself of that defense in order to benefit from it.\nSection 20-279.21(b)(3)(a) gives Travelers the right to participate in plaintiffs\u2019 lawsuit against defendant, but does not require Travelers\u2019 participation, does not relieve plaintiffs\u2019 duty to serve defendant, and does not deprive defendant of his rights to participate in the lawsuit himself. See In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (when statute uses word \u201cmay,\u201d its provisions will ordinarily be construed as permissive and not mandatory). Travelers, who exercised its option to participate in plaintiffs\u2019 lawsuit against defendant pursuant to Section 20-279.21(b)(3)(a) after becoming an unnamed party to the action, filed an answer without asserting the defense of lack of personal jurisdiction over defendant. Therefore, although Travelers did have this defense available to it, Travelers waived its ability to avail itself of that defense by filing an answer without asserting the defense. See Humphrey v. Sinnott, 84 N.C. App. 263, 265, 352 S.E.2d 443, 445 (1987) (party waives defense of lack of personal jurisdiction by filing motion for discretionary change of venue without first or simultaneously asserting defense). Under these circumstances, although plaintiffs cannot obtain a judgment against defendant because he properly asserted the defense of lack of personal jurisdiction, this action may proceed against Travelers to determine whether plaintiffs are entitled to uninsured motorist coverage. Furthermore, Travelers, by failing to properly assert the defense of lack of personal jurisdiction in its answer, may not rely on the defense that plaintiffs cannot \u201creduce its right to judgment\u201d against defendant because of lack of personal jurisdiction in determining whether plaintiffs are \u201clegally entitled to recover damages\u201d from defendant. The order of the trial court granting Travelers\u2019 motion for judgment on the pleadings is accordingly reversed.\nBecause plaintiffs presented no argument in their brief supporting their assignments of error to the trial court\u2019s denial of plaintiffs\u2019 motions for enlargement of time for filing alias and pluries summons and extension of time in which to serve the original summons, we need not address these issues. N.C.R. App. P. 28(b)(5).\nAffirmed in part, reversed in part, and remanded.\nJudge JOHN concurs.\nJudge WYNN dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\ndissenting.\nI respectfully dissent because I believe that the uninsured motorist (UM) coverage statute does not permit a direct action by plaintiffs against their UM carrier, the consequence of the majority\u2019s holding. I believe the better procedure would be to remand this case to the trial court for a determination of whether plaintiffs should be permitted to serve defendant Leroy Jerome Nelson in accordance with N.C. Gen. Stat. \u00a7 1A-1, Rule 6.\nThe procedural history of this case is rather complex. On 4 June 1989, plaintiff Marlene R. Grimsley was injured in a automobile accident when she was allegedly hit from behind by a vehicle driven by defendant Leroy Jerome Nelson. Plaintiffs filed this action on 18 May 1992 and a summons was issued to defendant and to Travelers Insurance Co. (\u201cTravelers\u201d), plaintiffs\u2019 UM carrier, on that same date. On 22 May 1992, Craven County Deputy Sheriff Paul Mathes certified service of the summons and complaint upon defendant and Travelers.\nOn 9 October 1992, Travelers filed its answer and filed an amended answer on 9 November 1992 asserting the defenses of failure to state a claim, lack of personal jurisdiction, insufficient process, and insufficient service of process. On 24 November 1992, plaintiffs filed a motion to strike Travelers\u2019s amended answer and a motion for enlargement of time to file alias and pluries summons. Plaintiffs filed a notice on 9 December 1992 \u201cpursuant to Rule 11 of the North Carolina Rules of Civil Procedure\u201d informing the trial court that this Court\u2019s opinion in Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635 (1992) \u201cappears to hold that the trial court does not have the authority to extend the time in which an alias and pluries summons can be issued under the facts of this case.\u201d In an order filed on 26 March 1993, the trial court granted plaintiffs\u2019 motion to strike Travelers\u2019s amended answer but denied their motion for an enlargement of time.\nOn 24 May 1993, defendant filed a motion to dismiss for insufficient process, insufficient service of process, and lack of personal jurisdiction. Defendant filed affidavits from himself, his former wife Fannie Cox, and his son Leroy Jerome Nelson, Jr. which attested that Leroy Jerome Nelson, Jr. of 2005 New Bern Avenue, New Bern was served with the complaint instead of the proper defendant Leroy Jerome Nelson of 1004 New Bern Avenue, New Bern. The trial court granted defendant\u2019s motion and then granted Travelers\u2019 motion for judgment on the pleadings. The final result of this procedural morass was that even though plaintiffs and Travelers believed plaintiffs had brought a proper action, plaintiffs\u2019 action was dismissed because Leroy Jerome Nelson had not been served despite a certificate from the deputy sheriff to the contrary.\nThe majority concludes that Travelers did not appear in defendant\u2019s name so as to waive his personal jurisdiction defense when Travelers\u2019 attorney, signed its amended answer as \u201cAppearing in the name of the defendant.\u201d I agree with this conclusion. It is clear from the record that Travelers\u2019 attorney did not represent defendant and could not take any action which would bar defendant from raising a valid defense. As a result, the action is dismissed with regard to defendant Leroy Jerome Nelson. The majority then holds that since Travelers did not raise the personal jurisdiction defense in its answer, it has waived the defense. The majority remands this case in order that plaintiffs may proceed against Travelers to determine whether they are entitled to UM coverage. The majority holds that on remand Travelers cannot raise the defense of lack personal jurisdiction.\nI do not believe the UM statute permits plaintiffs to proceed solely against their UM carrier to determine whether plaintiffs are entitled to UM coverage. N.C. Gen. Stat. \u00a7 20-279.21(b)(3) mandates that motor vehicle liability insurance be available \u201cfor the protection of persons insured thereunder who are legally entitled, to recover damages from owners or operators of uninsured motor vehicles.\u201d N.C. Gen. Stat. \u00a7 20-279.21(b)(3) (1993) (emphasis added). The UM carrier\u2019s liability is derivative of the tortfeasor\u2019s liability. Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 294, 378 S.E.2d 21, 25 (1989). In Brown v. Lumbermens Mut. Cas. Co., 285 N.C. 313, 204 S.E.2d 829 (1974), our Supreme Court held that for a plaintiff to be \u201c \u2018legally entitled to recover damages\u2019 a plaintiff must not only have a cause of action but a remedy by which he can reduce his right to damage to judgment.\u201d Id. at 319, 204 S.E.2d at 833. See also Spivey v. Lowery, 116 N.C. App. 124, 446 S.E.2d 835 (1994) (The complete release of the tortfeasor releases the underinsured motorist carrier as well); Buchanan v. Buchanan, 83 N.C. App. 428, 350 S.E.2d 175 (1986), disc. review denied, 319 N.C. 224, 353 S.E.2d 406 (1987) (The release of the tort-feasor without the consent of the underinsured motorist carrier discharges the carrier because of the derivative nature of the insurer\u2019s liability,).\nIn the instant case, under the majority\u2019s analysis, the defendant tortfeasor, Leroy Jerome Nelson, is dismissed from the case since plaintiffs did not properly serve him. Plaintiffs\u2019 insurance policy is not contained in the record on appeal so I cannot determine whether the policy contains the standard provision that a plaintiff is not entitled to UM coverage unless the plaintiff is \u201clegally entitled to recover damages\u201d from the tortfeasor. Under the statute, Travelers\u2019 liability is derivative of the tortfeasor\u2019s liability. If plaintiffs cannot obtain a judgment against Leroy Jerome Nelson, then they are not \u201clegally entitled to recover\u201d under their policy with Travelers.\nThe majority notes that Travelers has waived the defense of lack of personal jurisdiction by failing to raise the defense in its answer. Whether Travelers can raise this defense, however, is irrelevant when considering whether Travelers is liable to plaintiffs under the UM provisions of their policy. Since, under the majority\u2019s analysis, plaintiffs can never obtain a judgment against the tortfeasor, Travelers cannot be held liable. See Brown, 285 N.C. at 319, 204 S.E.2d at 833.\nIn my opinion, plaintiffs should be granted an enlargement of time under N.C. Gen. Stat. \u00a7 1A-1, Rule 6(b) to serve defendant. Defendant appeared in this action and challenged the service of summons by the deputy sheriff. N.C. Gen. Stat. \u00a7 1-75.10(1)(a) provides that proof of service shall be the \u201cofficer\u2019s certificate thereof, showing place, time and manner of service.\u201d N.C. Gen. Stat. \u00a7 l-75.10(l)(a) (1983). \u201cWhen the return upon its face shows legal service by an authorized officer, that return is sufficient, at least prima facie, to show service in fact.\u201d Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 462, 265 S.E.2d 633, 635 (1980). A deputy\u2019s return of service cannot be set aside unless the evidence is clear and unequivocal. Harrington v. Rice, 245 N.C. 640, 642, 97 S.E.2d 239, 241 (1957); see also, Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); Sun Bank/South Florida v. Tracy, 104 N.C. App. 608, 410 S.E.2d 509 (1991); Olschesky v. Houston, 84 N.C. App. 415, 352 S.E.2d 884 (1987).\nIn the instant case, defendant presented several affidavits that he was not properly served, and the trial court, by granting defendant\u2019s motion to dismiss, found that this evidence was sufficient to rebut the presumption of proper service. Since the deputy sheriff\u2019s return of service indicated defendant had been properly served, plaintiffs may be awarded an enlargement of time under N.C. Gen. Stat. \u00a7 1A-1, Rule 6(b) in which to serve defendant. The Supreme Court has held, \u201cRule 6(b) grants our trial courts broad authority to extend any time period specified in any of the Rules of Civil Procedure for the doing of any act, after expiration of such specified time, upon a finding of \u2018excusable neglect.\u2019 \u201d Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658, reh\u2019g denied, 322 N.C. 610, 370 S.E.2d 247 (1988).\nIn my opinion, the fact the deputy sheriff\u2019s certificate indicated that defendant was properly served and that both plaintiffs and Travelers proceeded in reliance upon this certificate, is a sufficient indication of \u201cexcusable neglect\u201d which should permit plaintiffs an enlargement of time in which to serve defendant. I therefore vote to remand this case to the trial court for a determination of whether plaintiffs are entitled to an enlargement of time under Rule 6(b). This analysis permits plaintiffs to proceed against defendant and their UM carrier which would have occurred if the father had been served instead of the son. For the foregoing reasons, I respectfully dissent.", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Bailey & Dixon, by Gary S. Parsons and Kenyann G. Brown, and Anderson & Anderson, by Michael J. Anderson and Albeon G. Anderson, for plaintiff-appellants.", "Dunn, Dunn & Stoller, by David A. Stoller and Andrew D. Jones, \u25a0 for defendant-appellee.", "Johnson & Lambeth, by Beth M. Bryant, for appellee Travelers Indemnity Company, an unnamed party." ], "corrections": "", "head_matter": "MARLENE R. GRIMSLEY and DENNY A. GRIMSLEY, Plaintiffs v. LEROY JEROME NELSON, Defendant\nNo. 943SC145\n(Filed 20 December 1994)\n1. Appearance \u00a7 10 (NCI4th)\u2014 answer filed by UM carrier\u2014 no general appearance by defendant\nAn answer filed by an attorney for plaintiffs\u2019 UM carrier did not constitute a general appearance by defendant, and defendant was not precluded from later raising the defense of lack of personal jurisdiction, since the answer revealed that it was filed by an attorney known by plaintiffs to be representing their UM carrier, and the answer was filed \u201cin the name of the defendant,\u201d the language permitted by N.C.G.S. \u00a7 20-279.21(b)(3)(a), thus raising no presumption that the lawyer represented defendant.\nAm Jur 2d, Appearance \u00a7 10.\n2. Insurance \u00a7 512 (NCI4th); Pleadings \u00a7 145 (NCI4th)\u2014 lack of personal jurisdiction over defendant \u2014 failure of UM carrier to raise defense\nAlthough plaintiffs could not obtain a judgment against defendant because he properly asserted the defense of lack of personal jurisdiction, this action could proceed against plaintiffs\u2019. UM carrier to determine whether plaintiffs were entitled to UM coverage; furthermore, the UM carrier, by failing to properly assert the defense of lack of personal jurisdiction in its answer, could not rely on the defense that plaintiffs could not reduce their right to judgment against defendant because of lack of personal jurisdiction in determining whether plaintiffs were legally entitled to recover damages from defendant.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 297, 332, 333; Pleading \u00a7\u00a7 226 et seq.\nJudge Wynn dissenting.\nAppeal by plaintiffs from orders entered 5 April 1993, 21 September 1993, and 1 November 1993 in Craven County Superior Court by Judge Herbert O. Phillips, III. Heard in the Court of Appeals 4 October 1994.\nBailey & Dixon, by Gary S. Parsons and Kenyann G. Brown, and Anderson & Anderson, by Michael J. Anderson and Albeon G. Anderson, for plaintiff-appellants.\nDunn, Dunn & Stoller, by David A. Stoller and Andrew D. Jones, \u25a0 for defendant-appellee.\nJohnson & Lambeth, by Beth M. Bryant, for appellee Travelers Indemnity Company, an unnamed party." }, "file_name": "0329-01", "first_page_order": 361, "last_page_order": 371 }