{ "id": 11916415, "name": "MARCUS RALPH LEDFORD, Plaintiff/Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant/Appellee", "name_abbreviation": "Ledford v. Nationwide Mutual Insurance", "decision_date": "1995-02-21", "docket_number": "No. 9327SC266", "first_page": "44", "last_page": "54", "citations": [ { "type": "official", "cite": "118 N.C. App. 44" } ], "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": "115 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125974 ], "opinion_index": -1, "case_paths": [ "/nc-app/115/0193-01" ] }, { "cite": "313 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718547 ], "opinion_index": -1, "case_paths": [ "/nc/313/0460-01" ] }, { "cite": "334 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531661 ], "opinion_index": -1, "case_paths": [ "/nc/334/0001-01" ] }, { "cite": "134 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "656-57", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "261 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572987 ], "year": 1964, "pin_cites": [ { "page": "287", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0285-01" ] }, { "cite": "138 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570948 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0656-01" ] }, { "cite": "173 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "516", "parenthetical": "citing Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520 (1964)" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552453 ], "year": 1970, "pin_cites": [ { "page": "647", "parenthetical": "citing Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0644-01" ] }, { "cite": "91 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "79 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "239 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626380 ], "year": 1954, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0238-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "243 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "897", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560959 ], "year": 1978, "pin_cites": [ { "page": "43", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0039-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "501-02" }, { "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": "611-12" }, { "page": "611-12" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "735 F. Supp. 1320", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4072165 ], "year": 1990, "pin_cites": [ { "page": "1325" } ], "opinion_index": 0, "case_paths": [ "/f-supp/735/1320-01" ] }, { "cite": "329 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "651", "parenthetical": "emphasis added" }, { "page": "651", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "918 F.2d 955", "category": "reporters:federal", "reporter": "F.2d", "year": 1990, "opinion_index": 0 }, { "cite": "710 F. Supp. 164", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7392810 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "167", "parenthetical": "\"[P]re-judgment interest should be considered an element of damages on the basis that the plaintiff should be made whole from the date of the loss.\"" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/f-supp/710/0164-01" ] }, { "cite": "446 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "617" }, { "page": "616" }, { "page": "617", "parenthetical": "citations omitted" }, { "page": "617" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522456 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "113-14" }, { "page": "112" }, { "page": "113-14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0110-01" ] }, { "cite": "450 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "449 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552643, 2552388, 2552777, 2549330, 2551866 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0802-05", "/nc/337/0802-03", "/nc/337/0802-04", "/nc/337/0802-02", "/nc/337/0802-01" ] }, { "cite": "444 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "pin_cites": [ { "page": "669" }, { "page": "669" }, { "page": "667", "parenthetical": "citation omitted" }, { "page": "667", "parenthetical": "citation omitted" }, { "page": "669" }, { "page": "667", "parenthetical": "citation omitted" }, { "page": "667", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 24-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "430 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "899" }, { "page": "900" }, { "page": "899", "parenthetical": "Court said, \"Where the insurance contract does not limit the definition of the word [damages], this Court certainly should not step in to do so.\" By implication, therefore, if the policy does indeed restrict the definition of the term damages, we should not interject a more expansive meaning." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "32 B 099", "category": "reporters:state", "reporter": "Barb.", "weight": 2, "opinion_index": 0 }, { "cite": "115 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125974 ], "weight": 6, "pin_cites": [ { "page": "201" }, { "page": "201" }, { "page": "198" }, { "page": "198" }, { "page": "201" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0193-01" ] }, { "cite": "313 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718547 ], "opinion_index": 0, "case_paths": [ "/nc/313/0460-01" ] }, { "cite": "334 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531661 ], "weight": 3, "pin_cites": [ { "page": "7" }, { "page": "8" }, { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0001-01" ] } ], "analysis": { "cardinality": 874, "char_count": 22605, "ocr_confidence": 0.749, "pagerank": { "raw": 1.9618948867099357e-07, "percentile": 0.7380928386172321 }, "sha256": "82060dacc752d62f24c9fd261986448e358d984b66f1ab9d13d229a1d11ab35c", "simhash": "1:19430042892f895c", "word_count": 3551 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and LEWIS concur.", "Judge ORR concurred prior to 5 January 1995." ], "parties": [ "MARCUS RALPH LEDFORD, Plaintiff/Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant/Appellee" ], "opinions": [ { "text": "JOHN, Judge..\nIn this declaratory judgment action, plaintiff contends the trial court erred by granting summary judgment to defendant Nationwide Mutual Insurance Company (Nationwide) on the issue of the latter\u2019s obligation for prejudgment interest on a judgment entered against Nationwide\u2019s insured in an underlying negligence action.\nPlaintiff alleges the court\u2019s ruling was erroneous in that it represents: (1) a misapplication of our case law with respect to prejudgment interest and construction of insurance contracts; (2) an incorrect reading of the insurance policy in question; and (3) an improper overruling of a prior judgment issued by another superior court judge in the matter sub judice. Several recent decisions issued by our courts compel us to disagree with plaintiffs arguments.\nA brief summary of pertinent factual and procedural information is as follows: On 6 April 1989, plaintiff suffered serious personal injuries when the automobile in which he was a passenger was involved in a collision. The second vehicle was being operated by Kevin Ernest Dalton (Dalton), but was owned by Millie Hughes Dalton (Ms. Dalton). Ms. Dalton\u2019s vehicle was covered by a personal automobile insurance policy issued her by Nationwide \u2014 Policy Number 61 32 B 099-541, which contained liability limits of $100,000.00 per person and $300,000.00 per accident for personal injury.\nOn 14 June 1990, plaintiff filed a tort action against Dalton and Ms. Dalton. Following a jury trial in October 1991, a verdict was returned on 25 October 1991 finding, inter alia, that plaintiff was injured by the negligence of both defendants and that he was entitled to recover the sum of $225,000.00 as compensatory damages. Plaintiff was also awarded punitive damages of $10,000.00 against Dalton individually.\nAfter entering judgment on the verdict, the trial judge, the Honorable Zoro J. Guice, Jr. (Judge Guice), filed an \u201cOrder on Plaintiffs\u2019 Bill of Costs,\u201d detailing the division and distribution of costs in the underlying tort action. Included in the court\u2019s order, dated 16 December 1991, was a provision calculating prejudgment interest and ordering the Daltons to pay same in the amount of $24,675.29.\nUpon plaintiff\u2019s subsequent demand for payment of the judgment, prejudgment interest, postjudgment interest, and court costs, Nationwide tendered to him the sum of $106,188.94 (representing the $100,000.00 per person policy limit for personal injury, plus the costs of court taxed pursuant to N.C. Gen. Stat. \u00a7 6.1 (1986), minus a credit for previously advanced funds).\nHowever, a dispute thereafter arose between the parties concerning Nationwide\u2019s obligation to pay plaintiff the amount of prejudgment interest calculated by the court. Accordingly, on 8 May 1992, plaintiff filed the instant action for declaratory relief against Nationwide seeking a resolution of the issue. More particularly, he alleged in his complaint that \u201cthe insurance policy specifically includes coverage for prejudgment interest, or, in the alternative, the provisions in the policy are ambiguous and must, therefore, be construed in favor of coverage.\u201d Plaintiff requested the court \u201cto construe [Ms. Dalton\u2019s] policy[,] ... to determine the liability of defendant for pre-judgment interest. . . [and to] [d]eclar[e] that the insurance policy requires the defendant to pay pre-judgment interest on the Judgment entered against the defendant\u2019s insured.\u201d\nIn its answer filed 22 July 1992, Nationwide responded that \u201cthe relevant insurance policy does not provide for the payment of prejudgment interest under the circumstances existing in this case.\u201d\nPursuant to N.C.R. Civ. P. 56 (1990), on 17 September 1992, plaintiff and Nationwide each sought summary judgment. Following a hearing, the Honorable C. Walter Allen (Judge Allen) denied plaintiff\u2019s motion for summary judgment and allowed that of defendant. The court\u2019s 12 November 1992 order stated:\nIt appearing to the Court. . . that as a matter of law, the pre-judgment interest on the judgment in favor of Ledford against [Ms.] Dalton, Nationwide\u2019s insured in the civil action . . . constitutes a portion of the judgment and not a cost, and that the Defendant is entitled to a judgment as a matter of law.\nPlaintiff brings forth essentially three separate analyses under which he argues the court\u2019s order was erroneous.\nI.\nA.\nPlaintiff first contends our General Assembly and case law have established that prejudgment interest constitutes a cost as opposed to an element or portion of damages. Accordingly, because the insurance policy at issue in the case sub judice provides that Nationwide will \u201cpay ... all costs taxed against the insured,\u201d plaintiff argues he is entitled to recover the contested amount of $24,675.29 from Nationwide. We disagree.\nThe relevant sections of the insurance policy at issue are contained in Endorsement 2096 (effective 1 January 1987) which provides:\nII. Liability Coverage\nA. . . . Insuring Agreement. . . :\nWe will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident. Damages include prejudgment interest awarded against the insured. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. . . .\nB. . . . Supplementary Payments . . . :\nIn addition to our limit of liability, we will pay on behalf of an insured:\n3. all costs taxed against the insured and interest accruing after a judgment is entered in any suit we defend.\n(Italics supplied). The Declarations page of the policy reveals that Nationwide\u2019s limit of liability is $100,000.00 per person for personal injury.\nWe note at the outset that determination of whether prejudgment interest is considered part of plaintiffs damages or an additional cost taxed to Nationwide\u2019s insured is of concern to plaintiff because Nationwide has previously tendered to him $106,188.94. As that figure concededly exceeds Nationwide\u2019s limits of liability for damages, unless the $24,675.29 awarded as prejudgment interest is found to constitute a cost, plaintiff has no claim against Nationwide for recovery of that amount.\n\u201cPrejudgment interest in negligence cases is a statutory creature in this state,\u201d Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 7, 430 S.E.2d 895, 899 (1993); the specific statute allowing for and governing prejudgment interest is N.C. Gen. Stat. \u00a7 24-5 (1991), which provides in pertinent part:\nIn an action other than contract [e.g., a negligence action, as here], 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.\nG.S. \u00a7 24-5(b). Plaintiff suggests that by enacting the above-quoted section, our General Assembly \u201chas codified and defined prejudgment interest as a cost... in addition to, and to be separate from\u201d an award of compensatory damages.\nTo the contrary, observing that G.S. \u00a7 24-5(b) appears to reflect a legislative intention \u201cto . . . treat[] [prejudgment interest] as an element of compensatory damages,\u201d our Supreme Court recently expressly held that \u201cinterest paid to compensate a plaintiff for loss of use of the money during the pendency of a lawsuit [i.e., prejudgment interest] is an element of that plaintiff\u2019s damages.\u201d Baxley, 334 N.C. at 8, 430 S.E.2d at 900; see also Nationwide Mutual Ins. Co. v. Mabe, 115 N.C. App. 193, 201, 444 S.E.2d 664, 669 (citations omitted), disc. review allowed, 337 N.C. 802, 449 S.E.2d 748, 450 S.E.2d 485 (1994); see also Watlington v. North Carolina Farm Bureau, 116 N.C. App. 110, 113-14, 446 S.E.2d 614, 617 (1994); see also Hartford Acc. & Indem. Co. v. U.S. Fire Ins. Co., 710 F. Supp. 164, 167 (E.D.N.C. 1989) (\u201c[P]re-judgment interest should be considered an element of damages on the basis that the plaintiff should be made whole from the date of the loss.\u201d) (citation omitted), aff\u2019d, 918 F.2d 955 (4th Cir. 1990).\nAs support for his position, plaintiff relies upon Lowe v. Tarble, 313 N.C. 460, 329 S.E.2d 648 (1985), wherein our Supreme Court determined that \u201c[prejudgment] interest is a cost within the meaning of the contract of insurance.\u201d Id. at 464, 329 S.E.2d at 651 (emphasis added); see also U.S. Fire Ins. Co. v. Nationwide Mut. Ins. Co., 735 F. Supp. 1320, 1325 (E.D.N.C. 1990). Although Lome at first blush may appear to be supportive of plaintiffs position, the facts and circumstances therein are distinguishable from those in the case sub judice. See Sproles v. Greene, 329 N.C. 603, 611-12, 407 S.E.2d 497, 501-02 (1991); see also Hartford, 710 F. Supp. at 167. Moreover, it is significant that the Lowe Court viewed its task as \u201cdetermining what are \u2018costs\u2019 within the meaning of the contract,\u201d Lowe at 463, 329 S.E.2d at 651 (emphasis added), demonstrating a \u201cclear intent on the part of the Supreme Court to decide the issue based on the specific policy before it. . . .\u201d Mabe, 115 N.C. App. at 201, 444 S.E.2d at 669; see also Sproles, 329 N.C. at 611-12, 407 S.E.2d at 502.\nUnder Baxley, therefore, unless the policy of insurance provides to the contrary, prejudgment interest constitutes a portion of a plaintiff\u2019s damage award.\nB.\nFocusing on the contract of insurance at issue, plaintiff urges us to reverse the trial court\u2019s grant of summary judgment for Nationwide on grounds that Endorsement 2096 creates an ambiguity in the insurance policy. While plaintiff accurately states the general principles regarding construction of insurance contracts, we disagree with the conclusion he draws from application of those principles to the policy in question.\n\u201c[T]he most fundamental rule [in interpreting insurance policies] is that the language of the policy controls.\u201d Mabe, 115 N.C. App. at 198, 444 S.E.2d at 667 (citation omitted). Plaintiff correctly notes, however, that when an insurance policy contains ambiguous provisions, this Court will resolve the ambiguity against the insurance company-drafter, and in favor of coverage. See, e.g., Grant v. Insurance Co., 295 N.C. 39, 43, 243 S.E.2d 894, 897 (1978) (citations omitted). On the other hand, if a contract of insurance is not ambiguous, \u201cthe court must enforce the policy as written and may not reconstruct [it] under the guise of interpreting an ambiguous provision.\u201d Mabe, 115 N.C. App. at 198, 444 S.E.2d at 667 (citation omitted). As this Court has explained, \u201clanguage in an insurance contract is ambiguous only if the language is \u2018fairly and reasonably susceptible to either of the constructions for which the parties contend.\u2019 \u201d Watlington, 116 N.C. App. at 112, 446 S.E.2d at 616 (1994) (quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)).\nPlaintiff asserts the insurance contract herein contains ambiguities because: (1) in Subsection A. of the Liability Coverage section of the policy, \u201cdamages\u201d are defined as including prejudgment interest; (2) Subsection A. also provides that \u201c[i]n addition to our limit of liability, we will pay all defense costs we incur\u201d; (3) Subsection B. states that in addition to its limit of liability, Nationwide will pay \u201call costs taxed against the insured\u201d; and (4) Judge Guice assessed the amount of prejudgment interest to which plaintiff was entitled within his \u201cOrder on Plaintiff[\u2019s] Bill of Costs.\u201d\nWe believe this Court\u2019s recent decisions Mabe and Watlington govern our resolution of this issue. In Mabe, when construing identical language contained in another Nationwide policy (indeed, Endorsement 2096 itself), we held that the \u201cadditional clause [in Subsection A.] defining prejudgment interest as part of damages . . . is controlling.\u201d Mabe, 115 N.C. App. at 201, 444 S.E.2d at 669. Further, after observing that \u201c[i]f a policy defines a term, then that definition is to be applied,\u201d id. at 198, 444 S.E.2d at 667 (citation omitted), the Mabe Court implicitly declined to impart an additional meaning to prejudgment interest by including it within the term \u201ccosts\u201d in Subsection B. Additionally, in summarizing our decision in Watlington, we stated:\nIn the policy before us, the \u201cInsuring Agreement\u201d expressly provides that prejudgment interest is calculable as a part of damages and is therefore included under the liability limits of the policy. Although the \u201cSupplementary Payments\u201d provision does not repeat the definition of damages, defendant is not obligated to pay prejudgment interest above the policy limit of liability. ... By defining damages to include prejudgment interest, the policy intended to prevent the inclusion of prejudgment interest as a cost charged to defendant above the stated liability of the policy. As we recently explained in . . . Mabe, a definition clause expressly including prejudgment interest as an element of damages controls the determination whether prejudgment interest is payable beyond the policy limit.\n. . . Therefore, we find that the policy at issue is not ambiguous ....\nWatlington, 116 N.C. App. at 113-14, 446 S.E.2d at 617 (citations omitted).\nIn similar fashion, we conclude the policy in the case sub judice is not ambiguous. Because Endorsement 2096 contains a definition clause \u201cexpressly including prejudgment interest as an element of damages,\u201d id. at 114, 446 S.E.2d at 617, that definition is determinative. See Baxley, 334 N.C. at 7, 430 S.E.2d at 899 (Court said, \u201cWhere the insurance contract does not limit the definition of the word [damages], this Court certainly should not step in to do so.\u201d By implication, therefore, if the policy does indeed restrict the definition of the term damages, we should not interject a more expansive meaning.).\nC.\nLastly, plaintiff makes much of Judge Guice\u2019s inclusion of an assessment of prejudgment interest in his \u201cOrder on Plaintifff\u2019s] Bill of Costs.\u201d However, our holding is completely unaffected by that order.\nFirst, in interpreting the terms of Nationwide Policy Number 61 32 B 099-541, any label affixed in Judge Guice\u2019s order to prejudgment interest is entirely irrelevant. Our task is to construe harmoniously all parts of the contract itself so as to give effect to each of its provisions. Mabe, 115 N.C. App. at 198, 444 S.E.2d at 667 (citation omitted).\nAdditionally, in summarizing the various portions of his order, Judge Guice decreed \u201c[t]hat the total costs and interest, excluding the post-judgment interest which continues to accrue... to be taxed in favor of. . . plaintiff[], and against. . . Dalton and [Ms.] Dalton . . . are . . . $26,081.70.\u201d This language indicates Judge Guice was not equating \u201ccosts\u201d with \u201cprejudgment interest,\u201d but rather simply was using his order as a vehicle by which to set forth the amount of prejudgment interest.\nII.\nPlaintiffs final assignment of error concerns the following language contained in Judge Allen\u2019s order granting Nationwide\u2019s motion for summary judgment: \u201c[A]s a matter of law, the pre-judgment interest on the judgment in favor of [plaintiff] against [Ms.] Dalton, Nationwide\u2019s insured . . . , constitutes a portion of the judgment and not a cost.\u201d Plaintiff contends Judge Allen by so ruling impermissibly overruled Judge Guice\u2019s order which, plaintiff asserts, labelled prejudgment interest as a \u201ccost. \u201d He argues that the principle of res judicata ordinarily forbids \u201cone Superior Court Judge . . . [from] review[ing] the judgment of another Superior Court Judge.\u201d Hayes v. Wilmington, 239 N.C. 238, 245, 79 S.E.2d 792, 797 (1954), rev\u2019d on other grounds, 243 N.C. 525, 91 S.E.2d 673 (1956). While plaintiff properly characterizes the general rule, we hold it inapplicable to the circumstances sub judice for several reasons.\nFirst, we do not believe that by including prejudgment interest in his \u201cOrder on Plaintiffs] Bill of Costs\u201d Judge Guice was rendering a \u201cjudgment\u201d with respect to this issue.\nNext, Judge Guice\u2019s treatment of prejudgment interest as a cost in his order would not constitute res judicata with respect to the subsequent declaratory judgment suit unless there were: (1) identity of parties; (2) identity of subject matter; (3) identity of issues; and (4) identity of relief demanded, between the prior and later actions. See, e.g., Mason v. Highway Comm., 7 N.C. App. 644, 647, 173 S.E.2d 515, 516 (1970) (citing Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520 (1964)). We agree with Nationwide\u2019s contention that Judge Guice and Judge Allen were not faced with an \u201cidentity of issues.\u201d To the contrary, the only issue addressed in Judge Guice\u2019s order was how much was to be taxed against Dalton and Ms. Dalton (the insured); he did not decide which entity would ultimately be responsible for paying the amounts he assessed (explicitly) as \u201ccosts and interest.\u201d (Emphasis added). Judge Guice neither sought to define \u201cprejudgment interest,\u201d nor to construe Ms. Dalton\u2019s insurance policy with respect to the issue.\nFurther, Judge Allen\u2019s ruling that \u201cpre-judgment interest. . . constitutes a portion of the judgment and not a cost\u201d is not inconsistent with, and does not expressly or impliedly overrule, Judge Guice\u2019s taxing of that figure against Mrs. Dalton.\nFinally, the instant action for declaratory relief was the proper avenue for resolution of plaintiffs questions regarding construction of the insurance policy. See, e.g., Insurance Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 656-57 (1964) (citations omitted). Having brought this action, he cannot now be heard to complain, in essence, that the trial court had no authority even to decide the very questions he presented for its consideration. We reject this assignment of error.\nFor all the reasons discussed herein, we affirm the court\u2019s grant of summary judgment in favor of Nationwide.\nAffirmed.\nJudges ORR and LEWIS concur.\nJudge ORR concurred prior to 5 January 1995.", "type": "majority", "author": "JOHN, Judge.." } ], "attorneys": [ "Bailey, Patterson, Caddell, Hart & Bailey, P.A., by Walter L. Hart, IV, for plaintiff.", "Baucom, Clay tor, Benton, Morgan, Wood & White, P.A., by J. Merritt White, III, for defendant." ], "corrections": "", "head_matter": "MARCUS RALPH LEDFORD, Plaintiff/Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant/Appellee\nNo. 9327SC266\n(Filed 21 February 1995)\n1. Judgments \u00a7 649 (NCI4th)\u2014 prejudgmemt interest \u2014 damages rather than costs\nWhere defendant Nationwide tendered to plaintiff in an action arising from an automobile accident a figure which exceeded Nationwide\u2019s limits of liability for damages unless the portion of damages awarded as prejudgment interest was found to constitute a cost, the trial court did not err in a subsequent declaratory judgment action by granting plaintiff\u2019s motion for summary judgment and stating that the prejudgment interest constituted a portion of the judgment and was not a cost. The North Carolina Supreme Court held in Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, that interest paid to compensate a plaintiff for loss of use of the money during the pendency of a lawsuit is an element of damages. Lowe v. Tarble, 313 N.C. 460, which held that prejudgment interest is a cost within the meaning of the contract is distinguishable on its facts. Unless the policy of insurance provides to the contrary, prejudgment interest constitutes a portion of a plaintiffs damage award.\nAm Jur 2d, Interest and Usury \u00a7\u00a7 59 et seq.\n2. Insurance \u00a7 690 (NCI4th)\u2014 automobile accident \u2014 prejudgment interest \u2014 no ambiguity in policy\nThe court did not err by granting summary judgment for defendant insurance company in a declaratory judgment action to determine the applicability of prejudgment interest where plaintiff contended that language in the insurance policy created an ambiguity, but Nationwide Mutual Ins. Go. v. Mabe, 115 N.C. App. 193, construed identical language and held that the clause defining prejudgment interest as damages was controlling. Because the endorsement in this policy contained a definition expressly including prejudgment interest as an element of damages, that definition is determinative.\nAm Jur 2d, Automobile Insurance \u00a7 428.\n3. Judgments \u00a7 649 (NCI4th)\u2014 automobile accident \u2014 insurance policy \u2014 prejudgment interest\nIn an action arising from an automobile accident in which the question of whether prejudgment interest was a cost or a part of the judgment arose in a subsequent action for a declaratory judgment, the inclusion of an assessment of prejudgment interest in the trial judge\u2019s order on plaintiffs bill of costs did not affect the Court of Appeals holding that prejudgment interest constituted a portion of the damage award because the Court of Appeals was construing all parts of the insurance contract and because there was language in the trial judge\u2019s order indicating that the trial judge was not equating \u201ccosts\u201d with \u201cprejudgment interest\u201d but was simply using his order as a vehicle to set forth the amount of prejudgment interest.\nAm Jur 2d, Interest and Usury \u00a7\u00a7 59 et seq.\n4. Judgments \u00a7 649 (NCI4th)\u2014 automobile accident \u2014 prejudgment interest as costs or judgment \u2014 trial court order and subsequent declaratory judgment \u2014 res judicata\nIn an action arising from an automobile accident in which the question of whether prejudgment interest was a cost or a part of the judgment arose in a subsequent action for a declaratory judgment, the declaratory judgment judge did not impermissibly overrule the trial judge because the trial judge was not rendering a judgment on the issue when he included prejudgment interest in his order on plaintiffs bill of costs and because there was no identity of issues in that the trial judge was only addressing the amount to be taxed against the defendants in that action and did not decide which entity would ultimately be responsible for paying the amounts he assessed as \u201ccosts and interest,\u201d seeking neither to define prejudgment interest nor to construe the insurance policy; the declaratory judgment judge\u2019s ruling that prejudgment interest constitutes a portion of the judgment and is not a cost is not inconsistent with and does not overrule the trial court\u2019s taxing of that figure to a particular party; and, having brought the declaratory judgment action, which was the proper avenue for resolution of the questions regarding construction of the insurance policy, plaintiff cannot now be heard to complain that the court had no authority to decide the questions he presented for consideration.\nAm Jur 2d, Interest and Usury \u00a7\u00a7 59 et seq.\nJudge Orr concurred prior to 5 January 1995.\nAppeal by plaintiff from summary judgment entered 12 November 1992 by Judge C. Walter Allen in Gaston County Superior Court. Heard in the Court of Appeals 6 January 1994.\nBailey, Patterson, Caddell, Hart & Bailey, P.A., by Walter L. Hart, IV, for plaintiff.\nBaucom, Clay tor, Benton, Morgan, Wood & White, P.A., by J. Merritt White, III, for defendant." }, "file_name": "0044-01", "first_page_order": 76, "last_page_order": 86 }