{ "id": 11917495, "name": "KEVIN E. BRADDY, Plaintiff-Appellant, v. NATIONWIDE MUTUAL LIABILITY INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "Braddy v. Nationwide Mutual Liability Insurance", "decision_date": "1996-05-21", "docket_number": "No. COA95-910", "first_page": "402", "last_page": "412", "citations": [ { "type": "official", "cite": "122 N.C. App. 402" } ], "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": "75 ALR Fed. 461", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "73 ALR3d 632", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "79 ALR2d 1252", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "77 ALR3d 1082", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "4 ALR3d 456", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "351 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359076 ], "year": 1986, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0587-01" ] }, { "cite": "365 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521588 ], "year": 1988, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0294-01" ] }, { "cite": "464 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "expert testimony used to establish diminished market value" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917470 ], "year": 1995, "pin_cites": [ { "parenthetical": "expert testimony used to establish diminished market value" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0650-01" ] }, { "cite": "8 L. Ed. 2d 834", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "370 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6258866, 6258213, 6257778, 6258575 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/us/370/0965-04", "/us/370/0965-02", "/us/370/0965-01", "/us/370/0965-03" ] }, { "cite": "166 F. 407", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6720484 ], "year": 1909, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/f/166/0407-01" ] }, { "cite": "370 U.S. 31", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164935 ], "weight": 2, "year": 1909, "pin_cites": [ { "page": "35" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/us/370/0031-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "year": 1988, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "424 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505873, 2504894, 2504004, 2507294 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0670-01", "/nc/332/0670-03", "/nc/332/0670-02", "/nc/332/0670-04" ] }, { "cite": "420 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527633 ], "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0388-01" ] }, { "cite": "102 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "136", "parenthetical": "'\"A person sui juris may waive practically any right he has unless forbidden by law or public policy.' \"" } ], "opinion_index": 0 }, { "cite": "247 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628472 ], "year": 1958, "pin_cites": [ { "page": "737", "parenthetical": "'\"A person sui juris may waive practically any right he has unless forbidden by law or public policy.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0735-01" ] }, { "cite": "378 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "27", "parenthetical": "whether right based in statute or equity insurance company expressly waived it in the insurance contract" } ], "opinion_index": 0 }, { "cite": "324 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487753 ], "year": 1989, "pin_cites": [ { "page": "298", "parenthetical": "whether right based in statute or equity insurance company expressly waived it in the insurance contract" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0289-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "one panel of this Court bound by decision of previous panel" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "one panel of this Court bound by decision of previous panel" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "424 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1993, "pin_cites": [ { "page": "698" }, { "page": "669" }, { "page": "698" }, { "page": "669-670" }, { "page": "698" }, { "page": "670" }, { "page": "699-700" }, { "page": "670", "parenthetical": "emphasis added" }, { "page": "670", "parenthetical": "citation omitted" }, { "page": "670" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525422 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "699" }, { "page": "699-700" }, { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0697-01" ] }, { "cite": "446 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "598", "parenthetical": "\"[T]he provisions of [an applicable] statute become terms of the policy to the same extent as if they were written in the policy . . . .\"" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12140204 ], "year": 1994, "pin_cites": [ { "page": "721", "parenthetical": "\"[T]he provisions of [an applicable] statute become terms of the policy to the same extent as if they were written in the policy . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0718-01" ] }, { "cite": "152 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "105", "parenthetical": "to recover under a UM endorsement the claimant must show \"(1) he is legally entitled to recover damages, (2) from the owner ... of an uninsured automobile, (3) because of bodily injury, (4) caused by accident, and (5) arising out of the . . . use of the uninsured automobile\"" } ], "opinion_index": 0 }, { "cite": "269 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562714 ], "year": 1967, "pin_cites": [ { "page": "237", "parenthetical": "to recover under a UM endorsement the claimant must show \"(1) he is legally entitled to recover damages, (2) from the owner ... of an uninsured automobile, (3) because of bodily injury, (4) caused by accident, and (5" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0235-01" ] }, { "cite": "204 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "834" }, { "page": "834" } ], "opinion_index": 0 }, { "cite": "285 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564075 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "320" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0313-01" ] }, { "cite": "447 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549910 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0667-01" ] }, { "cite": "373 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562113, 2566065, 2560632, 2561049, 2561822 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0171-04", "/nc/323/0171-03", "/nc/323/0171-01", "/nc/323/0171-05", "/nc/323/0171-02" ] }, { "cite": "368 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "449" }, { "page": "449" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524452 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "360" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 58-63-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(ll)" } ], "opinion_index": 0 }, { "cite": "362 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "321 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569187, 2568670, 2569723 ], "year": 1987, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0300-03", "/nc/321/0300-01", "/nc/321/0300-02" ] }, { "cite": "360 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "804", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "320 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727132 ], "year": 1987, "pin_cites": [ { "page": "743", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0738-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "396 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "822-823" }, { "page": "823", "parenthetical": "finding no abuse of discretion when trial court severed certain issues which \"had the advantage of possibly making it unnecessary to try the other issues\"" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526914 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0412-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" }, { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525422 ], "year": 1993, "pin_cites": [ { "page": "699" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0697-01" ] }, { "cite": "152 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "105" } ], "opinion_index": 1 }, { "cite": "269 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562714 ], "year": 1967, "pin_cites": [ { "page": "237" } ], "opinion_index": 1, "case_paths": [ "/nc/269/0235-01" ] } ], "analysis": { "cardinality": 1004, "char_count": 23855, "ocr_confidence": 0.76, "pagerank": { "raw": 2.5069310740268123e-07, "percentile": 0.8100952989923351 }, "sha256": "a3e652745c63e569239c759fe3a9ec1e0a2f64456573210ec9b68160552defd7", "simhash": "1:a719c12a053f36d6", "word_count": 3890 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs with separate opinion and Judge JOHN joins in this concurrence." ], "parties": [ "KEVIN E. BRADDY, Plaintiff-Appellant, v. NATIONWIDE MUTUAL LIABILITY INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nPlaintiff Kevin E. Braddy (Braddy) appeals from judgment entered on jury verdict awarding Braddy $70,000 in damages.\nOn 8 June 1990 Braddy, while riding his motorcycle, collided with a pickup truck operated by Thomas Brooks at the intersection of N.C. 157 and State Road 1184 in Orange County. Brooks was issued an unsafe movement citation for his actions leading up to the accident and fined $50. On 16 June 1990 Brooks paid the $50 fine without contesting the citation and, thereby, admitted he was guilty of an unsafe movement.\nBrooks was covered under an insurance policy (Brooks policy) issued by Nationwide Mutual Liability Insurance Company (Nationwide) which had a $50,000 limit for bodily injury. Braddy had underinsured motorist (UIM) coverage under three separate policies (UIM policies) also issued by Nationwide. It is undisputed the UIM policies could be stacked to provide $600,000 in UIM coverage. On 24 February 1993 Braddy, Brooks and Nationwide executed a Partial Settlement Agreement (Agreement) under which Brooks and Nationwide agreed to compensate Braddy for his injuries and damages up to the $50,000 limit of the Brooks policy. Braddy also expressly reserved the right \u201cto bring any actions necessary against Brooks [and] Nationwide ... to recover any unsatisfied portion of Braddy\u2019s Claim . . . .\u201d\nOn 4 June 1993 Braddy, alleging the $50,000 had not fully compensated him for his injuries, instituted the present action. On 23 January 1995 Braddy voluntarily dismissed Brooks without prejudice as a party defendant to the action leaving only Braddy\u2019s claims for UIM coverage (Count IV) and bad faith refusal to settle and punitive damages (Count V) against Nationwide. On the same day, the trial court severed Counts IV and V; and, pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(4), ordered Nationwide remain an unnamed defendant.\nAfter hearing all the evidence, the jury returned the following verdict:\n1. Was the plaintiff injured by the negligence of the defendant?\nANSWER: Yes\n2. Did the plaintiff by his own negligence contribute to his injury?\nANSWER: No\n3. What amount, if any, is the plaintiff entitled to recover for personal injury?\nANSWER: $70,000\nOn 27 January 1995 the trial court entered judgment in favor of plaintiff for $25,114.98 representing $70,000 less the $50,000 already paid pursuant to the settlement agreement, plus pre-judgment interest and $2,480.46 in costs.\nOn appeal Braddy contends the trial court erred by: (1) bifurcating Counts IV and V; (2) ordering Count IV tried as a personal injury action rather than a contract action; (3) allowing Nationwide, pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(4), to proceed as an unnamed defendant; (4) excluding statements by Nationwide valuing Braddy\u2019s claim; (5) excluding expert testimony regarding the appropriate amount of damages for Braddy\u2019s injuries; and (6) denying Braddy\u2019s motion for a new trial.\nI.\nWe first consider Braddy\u2019s contention the trial court abused its discretion by bifurcating Counts IV and V.\nN.C.R. Civ. P. 42(b) provides, in pertinent part, \u201c[t]he court may in furtherance of convenience or to avoid prejudice . . . order a separate trial of any claim . . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 42(b) (1990). A bifurcation order will not be disturbed on appeal unless the trial court abused its discretion, Hoots v. Toms and Bazzle, 100 N.C. App. 412, 417, 396 S.E.2d 820, 822-823 (1990), by making a decision \u201cmanifestly unsupported by reason,\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). In any event, \u201c[a] bifurcated trial is particularly appropriate where separate submission of issues avoids confusion and promotes a logical presentation to the jury, and where resolution of the separated issue will potentially dispose of the entire case.\u201d In re Will of Hester, 320 N.C. 738, 743, 360 S.E.2d 801, 804, reh\u2019g denied, 321 N.C. 300, 362 S.E.2d 780 (1987) (emphasis added) (citations omitted). See also Hoots, 100 N.C. App. at 417, 396 S.E.2d at 823 (finding no abuse of discretion when trial court severed certain issues which \u201chad the advantage of possibly making it unnecessary to try the other issues\u201d).\nThe present record establishes the trial court, by severing Counts IV and V, clearly reduced \u201cthe delay, expense and inconvenience to all participants.\u201d 2 G. Gray Wilson, North Carolina Civil Procedure \u00a7 42-3 (2d ed. 1996). Further, we note the resolution of Count IV, in fact, obviated the need for a trial on Count V. See N.C. Gen. Stat. \u00a7\u00a7 58-63-15(ll)g - h (1994). Therefore, under Hester and Hoots, we cannot say the trial court abused its discretion by bifurcating Counts IV and V.\nII.\nBraddy also contends the trial court erred by ordering Count IV tried as a personal injury action rather than a breach of contract action.\nAt the outset we note, although the legal principles herein followed are often enunciated in uninsured motorist (UM) cases, this Court has nonetheless found them applicable to- UIM actions. Brace v. Strother, 90 N.C. App. 357, 360, 368 S.E.2d 447, 449, disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988), overruled on other grounds, Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994).\nIt is well settled that \u201c[u]nless an insured is \u2018 \u201clegally entitled to recover damages\u201d . . . from the [underinsured] motorist the contract upon which he sues precludes him from recovering against [the UIM carrier].\u2019 \u201d Id. (quoting Brown v. Casualty Co., 285 N.C. 313, 320, 204 S.E.2d 829, 834 (1974)). See also Williams v. Insurance Co., 269 N.C. 235, 237, 152 S.E.2d 102, 105 (1967) (to recover under a UM endorsement the claimant must show \u201c(1) he is legally entitled to recover damages, (2) from the owner ... of an uninsured automobile, (3) because of bodily injury, (4) caused by accident, and (5) arising out of the . . . use of the uninsured automobile\u201d). Put simply, the right to recover under a UIM endorsement is \u201cderivative and conditional\u201d and, consequently, any defense available to the alleged tortfeasor is also available to the insurer. Brace, 90 N.C. App. at 360, 368 S.E.2d at 449.\nWe believe, therefore, \u201c[i]t is manifest . . . that despite the contractual relation between plaintiff insured and defendant [UIM] insurer, this action is actually one for the tort allegedly committed by the [underinsured] motorist.\u201d Brown, 285 N.C. at 319, 204 S.E.2d at 834. Accordingly, as Count IV sounds in tort, we affirm the trial court\u2019s order that Count IV be tried as a personal injury action rather than a contract action.\nIII.\nWe next consider Braddy\u2019s contention the trial court erred by allowing Nationwide, pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(4), to remain an unnamed defendant.\nNeither party disputes that section 20-279.21(b)(4) applies to the present UIM policies. See Baxley v. Nationwide Mutual Ins. Co., 115 N.C. App. 718, 721, 446 S.E.2d 597, 598 (1994) (\u201c[T]he provisions of [an applicable] statute become terms of the policy to the same extent as if they were written in the policy . . . .\u201d). Therefore, we must now determine whether, under the present facts and circumstances, section 20-279.21(b)(4) permitted Nationwide to remain an unnamed defendant.\nNationwide cites Sellers v. N.C. Farm Bureau Mut. Ins. Co., 108 N.C. App. 697, 424 S.E.2d 669 (1993) as being dispositive of this issue. In Sellers, plaintiff filed a negligence action against defendant tort-feasor. Id. at 698, 424 S.E.2d at 669. Plaintiff subsequently amended her complaint to add a claim for UIM coverage. Id. As plaintiff admitted she had settled and released her claim against the tortfeasor, the trial court granted the tortfeasor\u2019s motion for summary judgment. Id. at 698, 424 S.E.2d at 669-670. After dismissing the action against the tortfeasor, the trial court substituted the heretofore unnamed UIM carrier as the named defendant in the action. Id. at 698, 424 S.E.2d at 670.\nOn appeal this Court reversed the trial court holding, \u201crelease or settlement of an action against the tortfeasor does not vitiate the express statutory terms of N.C.G.S. 20-279.21fbY4) such that the action can continue with the [UIM] carrier remaining as an unnamed defendant.\u201d Id. at 699-700, 424 S.E.2d at 670 (emphasis added). Indeed, as the Sellers Court admonished:\n[section 20-279.21(b)(4)] is, to us, clear and unambiguous. The [UIM] insurer . . . \u201cshall have the right to appear in defense of the claim without being named as a party therein, and. . . may participate in the suit as fully as if it were a party.\u201d This language and the cases which demonstrate its application convince us that even if the tortfeasor is released from the action, the case can continue, if requested fbv the UIM insurer pursuant to section 20-279.21(bY4)1. in the tortfeasor\u2019s name only.\nSellers, 108 N.C. App. at 699, 424 S.E.2d at 670 (citation omitted) (emphasis added). The Sellers Court indicated this interpretation was necessary to ensure \u201c[juries] would . . . concentrate on the facts and the law as instructed, rather than the parties . ...\u201d Id.\nIn an attempt to distinguish the present case from Sellers, Braddy contends he joined Brooks as a party defendant at Nationwide\u2019s request and subsequently dismissed Brooks after discovering Nationwide concealed its waiver of subrogation rights against Brooks from 1992 to 1995. Assuming Braddy\u2019s allegation is true, we nevertheless conclude this is a distinction without legal significance.\nAlthough the separate concurrence opines that section 20-279.21(b)(4) does not expressly envision the UIM carrier defending as an unnamed party when the tortfeasor has been dismissed as a party defendant prior to trial, we are nonetheless bound by this Court\u2019s previous holding that application of section 20-279.21(b)(4) does not hinge on whether or not the tortfeasor remains a party defendant. Sellers, 108 N.C. App. at 699-700, 424 S.E.2d at 670. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (one panel of this Court bound by decision of previous panel).\nIn fact, the present case is virtually identical to Sellers. First, the sole issue before the trial court was a claim for UIM coverage. Second, the tortfeasor was dismissed from the action and Nationwide, the UIM insurer, was the only remaining party defendant at trial. Third, Nationwide and Braddy are in privity based on the UIM policies. Last, Braddy is trying to substitute Nationwide as the named defendant. Put simply, the present case and Sellers involve the same claim, the same type of plaintiff and defendant, and the same relationship between plaintiff and defendant. Therefore, as an insurer\u2019s rights under section 20-279.21(b)(4) are not tied to subrogation rights, we find no meaningful distinction between the present case and Sellers. Accordingly, under Sellers, we believe Nationwide, at least initially, had a statutory right to prosecute its defense as an unnamed defendant.\nBraddy also alleges, however, that Nationwide waived its statutory right in the UIM policies. Specifically, Braddy contends Nationwide waived its rights under section 20-279.21(b)(4) by including a provision which states \u201cliability will be determined only in a legal action against [Nationwide].\u201d\nAlthough we recognize an insurance company may waive a right created by statute for its benefit by an express contract provision, see Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 298, 378 S.E.2d 21, 27 (1989) (whether right based in statute or equity insurance company expressly waived it in the insurance contract), Carrow v. Weston, 247 N.C. 735, 737, 102 S.E.2d 134, 136 (1958) (\u2018\u201cA person sui juris may waive practically any right he has unless forbidden by law or public policy.\u2019 \u201d), we nonetheless believe the plain language of the contested provision merely requires the claimant to join Nationwide as a party-defendant to any action involving a determination of liability. Accordingly, as Nationwide has not waived its statutory rights under section 20-279.21(b)(4), we affirm the trial court\u2019s order allowing Nationwide to proceed as an unnamed defendant.\nFinally, as we determine Count IV sounds in tort, and Braddy was afforded the opportunity to be heard on his claim for damages against the tortfeasor and, thereby, his derivative claim for UIM coverage against Nationwide \u2014 a claim created by the same statute, section 20-279.21, which allows Nationwide to proceed as an unnamed party \u2014 we reject Braddy\u2019s assertion his due process rights were violated.\nIV.\nBraddy also argues he was materially prejudiced when the trial court excluded: (1) alleged admissions by Nationwide valuing his claim at over $50,000; and (2) the testimony of Braddy\u2019s expert on the appropriate value of his claim.\nA.\nAs the present action sounds in tort, this Court must now determine whether alleged admissions by an unnamed defendant insurer are admissible in a personal injury action as some evidence of the appropriate value to accord a claimant\u2019s injuries.\nInitially we note the alleged valuations, as with all interdepartmental communications of an insurer, are inadmissible hearsay unless they fall within an exception. 19 Mark S. Rhodes, Couch Cyclopedia of Insurance 2d \u00a7 79:167 (Rev. ed. 1983). Braddy, however, contends the valuations constitute admissions by a party opponent. See N.C. Gen. Stat. \u00a7 8C-1, Rule 801 (1992).\nAssuming, without deciding, that claim estimates are admissions by a party opponent, the evidence may nevertheless be excluded under N.C.R. Evid. 403 where it exposes one party to unfair prejudice because the evidence has \u201c \u2018[a]n undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one ....\u2019\u201d State v. Moore, 107 N.C. App. 388, 396, 420 S.E.2d 691, 696 (quoting Commentary to N.C. Gen. Stat. \u00a7 8C-1, Rule 403), disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). The decision to admit or exclude evidence under Rule 403 is in the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. State v. Jones, 89 N.C. App. 684, 594, 367 S.E.2d 139, 145 (1988).\nIn the present personal injury action, we believe admitting claim estimates prepared by Nationwide, an unnamed defendant insurer, would unduly prejudice the defense. Indeed, if allowed to inform the jury that Nationwide has investigated this claim and prepared claim valuations, Braddy would, in our estimation, circumvent the policy behind N.C. Gen. Stat. \u00a7 8C-1, Rule 411 and section 20-279.21(b)(4) which is to have the jury focus on the facts and not the existence of liability insurance. See Sellers, 108 N.C. App. at 699, 424 S.E.2d at 670; N.C. Gen. Stat. \u00a7 8C-1, Rule 411 (1992). Accordingly, we affirm the trial court\u2019s exclusion of alleged claim valuations by Nationwide.\nB.\nBraddy also contends the trial court erred by excluding expert testimony regarding the value of his claim.\nIt is well settled \u201copinions of experts as to matters in the ordinary experience of men are inadmissible, since the jury itself is deemed capable of deciding such questions.\u201d 19 Rhodes, Couch Cyclopedia of Insurance 2d \u00a7 79:104. As the United States Supreme Court has noted:\nexpert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge \u201cif all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are [expert] witnesses . . . .\u201d\nSalem v. United States Lines, 370 U.S. 31, 35, 8 L. Ed. 2d 313, 317 (quoting United States Smelting Co. v. Parry, 166 F. 407, 415 (8th Cir. 1909)), reh\u2019g denied, 370 U.S. 965, 8 L. Ed. 2d 834 (1962).\nIndeed, it is beyond question that juries, in a myriad of legal settings, are routinely entrusted with determining the compensation to which a claimant is entitled. Although we recognize expert testimony may be helpful in establishing a range of damages in complex litigation, see, e.g., Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 671 n.2, 464 S.E.2d 47, 62 n.2 (1995) (expert testimony used to establish diminished market value), we do not view the present personal injury action as such a case. Accordingly, we affirm the trial court\u2019s exclusion of Braddy\u2019s damages expert.\nV.\nFinally, we consider Braddy\u2019s contention he is entitled to a new trial. In support of this contention, Braddy re-asserts the previously discussed allegations.\n\u201cUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 59, a parly may obtain a new trial either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence.\u201d Eason v. Barber, 89 N.C. App. 294, 297, 365 S.E.2d 672, 674 (1988). A motion for a new trial is nevertheless addressed to the sound discretion of the trial court, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Watkins v. Watkins, 83 N.C. App. 587, 591, 351 S.E.2d 331, 334 (1986).\nAs we affirm the trial court\u2019s rulings which form the basis for Braddy\u2019s new trial motion, we likewise conclude the trial court did not abuse its discretion by denying plaintiff\u2019s Rule 59 motion.\nNo error.\nJudge GREENE concurs with separate opinion and Judge JOHN joins in this concurrence.", "type": "majority", "author": "MARTIN, Mark D., Judge." }, { "text": "Judge GREENE\nconcurring.\nAlthough I fully concur with the opinion of the majority, I do so reluctantly with respect to Part III. The facts in this case are somewhat different from those of the Sellers case, relied on by the majority in Part III. In Sellers the tortfeasor was originally a named party defendant and the underinsured (UIM) carrier was an unnamed party defendant. The action against the named defendant was dismissed and the trial court ordered that the UIM carrier be included as a named defendant. In this case, both the tortfeasor and the UIM carrier were named defendants. The plaintiff voluntarily dismissed its claim against the tortfeasor with a reservation that it was \u201cnot intended to and shall not affect [its] claims for relief asserted against\u201d the UIM carrier. The trial court thereafter ordered that the case be tried in the name of the tortfeasor, not the name of the UIM carrier. The jury was asked to determine whether the plaintiff had been injured by the negligence of Thomas E. Brooks, the tortfeasor. The jury returned a verdict in favor of the plaintiff on this issue and the trial court entered a judgment against Nationwide.\nNonetheless, the language of Sellers does appear to permit the UIM carrier to defend the action in the name of the tortfeasor, although the tortfeasor has been dismissed from the case, and even when the UIM carrier is a named party defendant. In other words, the jury can be instructed that the tortfeasor is the defendant in the case, when in fact the tortfeasor is not a party defendant and the UIM carrier is a party defendant.\nI am aware of the public policy considerations in support of this type of procedure. As stated in Sellers, juries will \u201cmore likely concentrate on the facts and the law\u201d and not be influenced by the fact that an insurance company is the party defendant. Sellers, 108 N.C. App. at 699, 424 S.E.2d at 670. My concern is that section 20-279.21(b)(4) only speaks in terms of allowing the UIM carrier to defend as an unnamed party defendant when the tortfeasor is a party defendant and that any extension of that rule should be in the province of the legislature. In the absence of legislation permitting the procedure used in this case, it would appear that the action is properly filed against the UIM carrier as a named defendant, with the burden on the plaintiff to show he is legally entitled to recover damages from the tortfeasor for injuries sustained in a collision involving the underinsured vehicle. See Williams v. Nationwide Mut. Ins. Co., 269 N.C. 235, 237, 152 S.E.2d 102, 105 (1967); 3 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance \u00a7 34.1 (2d ed. 1995) (plaintiff has burden of showing underinsured motorist was negligent, even though action is against UIM carrier). Because I am bound by Sellers, however, I join with the majority in affirming the trial court.", "type": "concurrence", "author": "Judge GREENE" } ], "attorneys": [ "Brown & Bunch, by Charles Gordon Brown and Scott D. Zimmerman, for plaintiff-appellant.", "Bryant, Patterson, Covington & Idol, P.A., by Lee A. Patterson, II, and W. Randall Stroud, for defendant-appellee." ], "corrections": "", "head_matter": "KEVIN E. BRADDY, Plaintiff-Appellant, v. NATIONWIDE MUTUAL LIABILITY INSURANCE COMPANY, Defendant-Appellee.\nNo. COA95-910\n(Filed 21 May 1996)\n1. Trial \u00a7 120 (NCI4th)\u2014 UIM coverage \u2014 bad faith refusal to settle \u2014 severance from personal injury claim \u2014 no error\nIn an action to recover for personal injuries sustained in a motor vehicle accident, the trial court did not err in severing for trial plaintiffs claims for UIM coverage and bad faith refusal to settle and punitive damages, since the trial court, in severing those claims, clearly reduced the delay, expense and inconvenience to all participants; further, the resolution of the UIM claim obviated the need for a trial on the bad faith refusal to settle claim. N.C.G.S. \u00a7 1A-1, Rule 42(b).\nAm Jur 2d, Trial \u00a7\u00a7 120-125.\nPropriety of separate trials of issues of tort liability and of validity and effect of release. 4 ALR3d 456.\nAppealability of state court order granting or denying consolidation, severance, or separate trials. 77 ALR3d 1082.\n2. Insurance \u00a7 527 (NCI4th)\u2014 UIM coverage \u2014 personal injury rather than contract action\nThe trial court did not err in ordering that plaintiffs claim for UIM coverage be tried as a personal injury action rather than a contract action since, despite the contractual relation between plaintiff insured and defendant UIM insurer, this action was actually one for the tort allegedly committed by the underinsured motorist.\nAm Jur 2d, Automobile Insurance \u00a7 334.\nRights and liabilities under \u201cuninsured motorists\u201d coverage. 79 ALR2d 1252.\nInsured\u2019s right to bring direct action against insurer for uninsured motorist benefits. 73 ALR3d 632.\n3. Insurance \u00a7 1109 (NCI4th)\u2014 UIM carrier as unnamed defendant \u2014 no error\nThe trial court did not err by allowing defendant UIM carrier to remain an unnamed defendant pursuant to N.C.G.S. \u00a7 20-279.21(b)(4) after plaintiff voluntarily dismissed the tortfea-sor as a party defendant prior to trial. The UIM carrier did not waive its rights under \u00a7 20-279.21(b)(4) by including a provision in its policy stating that \u201cliability will be determined only in a legal action against\u201d the carrier.\nAm Jur 2d, Automobile Insurance \u00a7 334.\nRights and liabilities under \u201cuninsured motorists\u201d coverage. 79 ALR2d 1252.\n4. Evidence and Witnesses \u00a7 1012 (NCI4th)\u2014 insurer\u2019s admissions as to value of plaintiff\u2019s claims \u2014 evidence inadmissible\nAssuming arguendo that claim estimates by the unnamed defendant UIM carrier constituted admissions by a party opponent, the trial court properly excluded these estimates as evidence of the value of plaintiffs injuries under N.C.R. Evid. 403 since such evidence would prejudice the defense and could circumvent the policy behind N.C.G.S. \u00a7 8C-1, Rule 411 and N.C.G.S. \u00a7 20-279.21(b)(4) to have the jury focus on the facts and not the existence of liability insurance.\nAm Jur 2d, Evidence \u00a7 760.\n5. Evidence and Witnesses \u00a7 2148 (NCI4th)\u2014 personal injury \u2014 expert testimony as to value of claim \u2014 exclusion proper\nThe trial court did not err in excluding expert testimony regarding the value of plaintiff\u2019s personal injury claim.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 32-39, 41-43.\nWhen will expert testimony \u201cassist trier of fact\u201d so as to be admissible at federal trial under Rule 702 of Federal Rules of Evidence. 75 ALR Fed. 461.\nJudge Greene concurring.\nAppeal by plaintiff from judgment entered 27 January 1995 by Judge Donald W. Stephens in Orange County Superior Court. Heard in the Court of Appeals 29 March 1996.\nBrown & Bunch, by Charles Gordon Brown and Scott D. Zimmerman, for plaintiff-appellant.\nBryant, Patterson, Covington & Idol, P.A., by Lee A. Patterson, II, and W. Randall Stroud, for defendant-appellee." }, "file_name": "0402-01", "first_page_order": 438, "last_page_order": 448 }