{
  "id": 11914352,
  "name": "JEFFREY SCOTT ABRAMS AND DIANNE M. ABRAMS v. OSCAR SURRETTE, JR.",
  "name_abbreviation": "Abrams v. Surrette",
  "decision_date": "1995-06-06",
  "docket_number": "No. COA94-921",
  "first_page": "239",
  "last_page": "242",
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  "last_updated": "2023-07-14T17:09:59.579385+00:00",
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    "judges": [
      "Judges JOHNSON and MARTIN, JOHN C., concur."
    ],
    "parties": [
      "JEFFREY SCOTT ABRAMS AND DIANNE M. ABRAMS v. OSCAR SURRETTE, JR."
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nState Farm Mutual Automobile Insurance Company (State Farm), an unnamed defendant in this action, appeals from the trial court\u2019s order striking the defenses of Oscar Surrette, Jr. (Surrette) and establishing Surrette\u2019s liability as a matter of law.\nThe record reveals that Jeffrey Scott Abrams (Abrams) and Dianne M. Abrams (plaintiffs) sued defendant for personal injuries sustained by Abrams during an automobile accident with defendant. Surrette answered plaintiffs\u2019 complaint and alleged contributory negligence. Because plaintiffs believed defendant to be uninsured, plaintiffs also served State Farm, plaintiffs\u2019 uninsured motorist insurance carrier, with a civil summons. State Farm also filed an answer, \u201cin its own name, as an unnamed defendant,\u201d pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(a). In State Farm\u2019s answer it denied that Surrette was negligent and alleged in the alternative that Abrams was contrib-utorily negligent. Plaintiffs filed a reply alleging that Surrette had the last clear chance, thus contending that any negligence by Abrams would not be a complete bar.\nOn 7 February 1994, after Surrette failed to provide complete answers to plaintiffs interrogatories, the trial court ordered that \u201cDefendant shall provide full verified answers to Plaintiffs\u2019 interrogatories within fifteen days.\u201d Subsequently, on 4 April 1994, plaintiffs moved for sanctions against defendant for failure to comply with the trial court\u2019s earlier \u201cOrder to Compel and Sanctions.\u201d After a hearing on this motion, the trial court ordered \u201c[t]hat Defendant\u2019s defenses be stricken in this case and that liability is hereby conclusively established against Defendant,\u201d as sanctions for failure to comply with his order.\nThe issue is whether the express prohibition against entry of a default judgment in N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(a) prohibits a trial court from entering a sanction, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 37, establishing an uninsured motorist\u2019s liability as a matter of law.\nThe \u201cNorth Carolina Motor Vehicle Safety and Financial Responsibility Act of 1953\u201d (the Act) provides that \u201c[n]o default judgment shall be entered when the insurer has timely filed an answer or other pleading as required by law.\u201d N.C.G.S. \u00a7 20-279.21(b)(3)(a) (1993). Nonetheless, the plaintiffs argue that this language does not prohibit the trial court from using Rule 37 to strike Surrette\u2019s answer and establish his liability to plaintiffs for his failure to \u201cprovide or permit discovery.\u201d N.C.G.S. \u00a7 1A-1, Rule 37(b)(2)(c) (1990). We disagree.\nThe purpose of that portion of- Section 20-279.21(b)(3)(a) prohibiting entry of default judgments is to provide the insurer, who has filed a timely answer, an opportunity to defend the complaint without being prejudiced by the conduct of the uninsured motorist who may, and usually does, have absolutely no interest in the law suit. Otherwise, the insurer\u2019s liability being derivative, Brown v. Lumberman\u2019s Mut. Casualty Co., 285 N.C. 313, 319, 204 S.E.2d 829, 834 (1974), the entry of a default or default judgment, see N.C.G.S. \u00a7 1A-1, Rule 55 (1990) (distinction between entry of default and default judgment), against the uninsured motorist also establishes the liability of the insurer. See N.C.G.S. \u00a7 20-279.21(b)(3)(a) (insurer bound by judgment against uninsured motorist). Conduct of an uninsured motorist that can prejudice the insurer, in that it precludes it from presenting any defense, is not limited, as plaintiffs argue, to failing to file a timely answer pursuant to Rule 12(a)(1). Failing to \u201cprovide or permit discovery,\u201d pursuant to Rule 37, can also result in \u201can order striking out pleadings\u201d or entry of a \u201cjudgment by default.\u201d N.C.G.S. \u00a7 1A-1, Rule 37(b)(2)(c). In both instances, the liability of the uninsured motorist is established by virtue of his pretrial conduct and not by virtue of a trial in which the insurer had an opportunity to present its defenses.\nIn this case Surrette, the uninsured motorist, failed to comply with orders of the trial court to supply answers to the plaintiffs\u2019 interrogatories and as a consequence Surrette\u2019s answer was stricken and \u201cliability conclusively established against\u201d Surrette. This order conclusively establishing Surrette\u2019s liability also established State Farm\u2019s liability, even though they had filed a timely answer contesting the issue of negligence and alleging the contributory negligence of Abrams. The order thus precluded State Farm from presenting its defenses, is inconsistent with Section 20-279.21(b)(3)(a) and must be reversed.\nThe trial court, however, is not without other remedies to effectuate compliance with its order to supply discovery. Rule 37 for example permits the trial court to treat the conduct of Surrette as \u201ca contempt of court,\u201d N.C.G.S. \u00a7 1A-1, Rule 37(b)(2)(d), and to \u201crequire the party failing to obey the order to pay the reasonable expenses, including attorney\u2019s fees, caused by the failure.\u201d N.C.G.S. \u00a7 1A-1, Rule 37(b)(2).\nAccordingly, the trial court\u2019s order is reversed and this case is remanded for entry of new sanctions.\nReversed and remanded.\nJudges JOHNSON and MARTIN, JOHN C., concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Gregory P. Chocklett for plaintiff-appellees.",
      "Law Offices of Douglas F. DeBank, by Douglas F. DeBank, for unnamed defendant-appellant State Farm Mutual Automobile Insurance Company."
    ],
    "corrections": "",
    "head_matter": "JEFFREY SCOTT ABRAMS AND DIANNE M. ABRAMS v. OSCAR SURRETTE, JR.\nNo. COA94-921\n(Filed 6 June 1995)\nInsurance \u00a7 509 (NCI4th); Discovery and Depositions \u00a7 69 (NCI4th)\u2014 uninsured motorist \u2014 failure to answer interrogatories \u2014 answer filed by UM insurer \u2014 sanctions\u2014striking of motorist\u2019s answer prohibited\nThe express prohibition against entry of a default judgment against an uninsured motorist in N.C.G.S. \u00a7 20-279.21(b)(3)(a) when plaintiff\u2019s uninsured motorist carrier has timely filed an answer prohibited the trial court from entering a sanction, pursuant to N.C.G.S. \u00a7 1A-1, Rule 37, striking an uninsured motorist\u2019s answer and establishing his liability as a matter of law for his failure to comply with court orders to supply answers to plaintiff\u2019s interrogatories where plaintiff\u2019s uninsured motorist carrier filed an answer as an unnamed defendant denying defendant\u2019s negligence and alleging plaintiff\u2019s contributory negligence. Such a sanction precluded the insurance carrier from presenting its defenses and was inconsistent with N.C.G.S. \u00a7 20-279.21(b)(3)(a).\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 293 et seq.; Discovery and Depositions \u00a7 390.\nApplicability of uninsured motorist statutes to self-insurers. 27 ALR4th 1266.\nAppeal by unnamed defendant State Farm Mutual Automobile Insurance Company from order entered 17 May 1994 in Wake County Superior Court by Judge Orlando F. Hudson. Heard in the Court of Appeals 11 May 1995.\nGregory P. Chocklett for plaintiff-appellees.\nLaw Offices of Douglas F. DeBank, by Douglas F. DeBank, for unnamed defendant-appellant State Farm Mutual Automobile Insurance Company."
  },
  "file_name": "0239-01",
  "first_page_order": 273,
  "last_page_order": 276
}