{
  "id": 11920086,
  "name": "CYNTHIA C. LAWRENCE and FRANKLIN E. LAWRENCE, Plaintiffs-appellants v. JEAN MAY BURY, Defendant-appellee",
  "name_abbreviation": "Lawrence v. Bury",
  "decision_date": "1996-06-18",
  "docket_number": "No. COA95-911",
  "first_page": "742",
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  "last_updated": "2023-07-14T15:39:52.508825+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges JOHNSON and WALKER concur."
    ],
    "parties": [
      "CYNTHIA C. LAWRENCE and FRANKLIN E. LAWRENCE, Plaintiffs-appellants v. JEAN MAY BURY, Defendant-appellee"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nIn April 1994, a vehicle driven by defendant Jean May Bury collided with a vehicle driven by plaintiff Cynthia C. Lawrence and owned by plaintiff Franklin E. Lawrence. Plaintiffs sued defendant in tort alleging that the accident caused personal injury and property damage. In response, defendant denied negligence; pled as an alternative defense, contributory negligence; and counterclaimed for $1,200.00 for damage to her car.\nPlaintiffs replied to defendant\u2019s counterclaim denying negligence, alternatively pleading contributory negligence, and alleging that their insurance company, without their prior knowledge or consent, paid defendant $1,135.00 in settlement of her property damage claim. Plaintiffs further alleged that defendant accepted the check from their insurance company \u201cin full satisfaction and discharge\u201d of her \u25a0counterclaim, and that her receipt of the payment constituted a bar to recovering against the plaintiffs.\nFollowing plaintiff\u2019s reply, defendant moved to dismiss plaintiffs\u2019 action, alleging that plaintiffs\u2019 reply ratified the compromise settlement and thereby barred plaintiffs from seeking any recovery from the defendant. Shortly thereafter, plaintiffs sought to \u201cdismiss, without prejudice, . . . their reply to counterclaim\u201d which stated that defendant accepted the check from plaintiffs\u2019 insurance company in full settlement of any claim defendant may have had against plaintiffs.\nUpon full consideration of the matter, Superior Court Judge Timothy L. Patti granted defendant\u2019s motion to dismiss plaintiffs\u2019 entire action with prejudice. Plaintiffs appeal.\nThe issue on appeal is where defendant accepts a settlement by plaintiffs\u2019 insurer and files a counterclaim, may plaintiffs who reply that such settlement is a bar to the counterclaim maintain their action against that defendant? The answer given by Justice Rodman in Keith v. Glenn, 262 N.C. 284, 136 S.E.2d 665 (1964) is the same now as it was then: No.\nIn Keith, plaintiff sued defendant for $20,500.00 to recover for personal injuries and property damage sustained in an automobile accident. Defendant denied negligence and counterclaimed for $5,000.00 for personal injuries and property damage. Id. at 285, 136 S.E.2d at 666. In reply, plaintiff asserted that his insurance carrier, against his wishes, paid defendant $1,250.00 in full settlement of defendant\u2019s claim against plaintiff. Id. Plaintiff specifically alleged that the settlement barred defendant\u2019s right to claim damages from him. Id.\nThe defendant in Keith, responding to plaintiff\u2019s reply, moved for summary judgment on pleadings alleging that the reply pled by plaintiff ratified the settlement and barred plaintiff\u2019s action. Id. The trial court agreed and our Supreme Court affirmed, holding that the plaintiff could not rely on defendant\u2019s acceptance of payment from plaintiffs\u2019 insurer to defeat defendant\u2019s counterclaim on the one hand, and proceed with suit on the other. Id. at 286-87, 136 S.E.2d at 667-68. The Court stated:\n[Plaintiff] could not follow paths leading in opposite directions. He deliberately elected to plead: \u201cThat the receipt of the sum of $1,250.00 and the execution of said release was in compromise and settlement of a disputed claim and the execution of the aforesaid release constitutes a bar to the counterclaim now being asserted by defendant.\u201d He has deliberately elected to ratify his insurance carrier\u2019s settlement with defendant. He must, when he accepts the benefits of the settlement, bear its burdens.\nId. at 287, 136 S.E.2d at 667.\nIn the instant case, plaintiffs\u2019 reply to defendant\u2019s counterclaim included the following:\nTHIRD DEFENSE\n11. That an agent of the Plaintiffs in this action paid the sum of $1,135.00 to the Defendant, without the consent of the Plaintiffs, in full settlement of the factual basis forming the claim set forth within her counterclaim, and the defendant accepted said sum in full satisfaction and discharge of the claim set forth in said counterclaim, and said payment therefore constitutes a bar to any further recovery by the Defendant against the Plaintiffs.\nThe language used by plaintiffs in paragraph eleven is indistinguishable from that in Keith. Here, as in Keith, plaintiffs moved the trial court to dismiss defendant\u2019s counterclaim, relying on the defendant\u2019s acceptance of money from the plaintiffs\u2019 insurer in full satisfaction of defendant\u2019s claim against plaintiffs. As a result, we are bound by Keith to hold that plaintiffs\u2019 third defense operated to ratify the settlement between plaintiffs\u2019 insurer and defendant, and foreclosed any suit by the plaintiffs against the defendant for damages arising out of the accident. As stated in Keith, \u201c[a] consummated agreement to compromise and settle disputed claims is conclusive and binding on the parties to the agreement and those who knowingly accept its benefits.\u201d Id. at 286, 136 S.E.2d at 667.\nPlaintiffs contend that the instant case is distinguishable from the rule in Keith because there is no evidence in the record that defendant signed a release barring her from further recovery against plaintiffs. Plaintiffs are mistaken in their contention. The major rationale cited by the Keith Court in its holding that a plaintiff may not recover from a defendant after pleading an agreement between an insurer and defendant is that a plaintiff \u201c[may] not follow paths leading in opposite directions.\u201d Id. at 287, 136 S.E.2d at 668.\nPlaintiffs further contend that this case is distinguishable because they withdrew their third defense before the time of hearing. In Keith, the trial court likewise declined to permit plaintiff to withdraw his reply which alleged that defendant\u2019s receipt of the money from his insurance company was in full settlement of all claims defendant had against him. Keith upheld this determination by its holding that plaintiff made an irrevocable choice when he elected to plead full settlement. Similarly, the plaintiffs in this case made an irrevocable decision when they included their third defense in their reply. Their later attempt to withdraw this defense was ineffectual.\nThe decision of the court below is,\nAffirmed.\nJudges JOHNSON and WALKER concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Reid C. James for plaintiffs-appellants.",
      "Stott, Hollowell, Palmer & Windham, L.L.P., by James C. Windham, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CYNTHIA C. LAWRENCE and FRANKLIN E. LAWRENCE, Plaintiffs-appellants v. JEAN MAY BURY, Defendant-appellee\nNo. COA95-911\n(Filed 18 June 1996)\nCompromise and Settlement \u00a7 7 (NCI4th)\u2014 plaintiffs\u2019 pleading of settlement between insurer and defendant \u2014plaintiffs\u2019 action barred\nWhere defendant accepts a settlement by plaintiffs\u2019 insurer and files a counterclaim, plaintiffs who reply that such a settlement is a bar to the counterclaim may not maintain their action against that defendant, since such a reply operates to ratify the settlement between plaintiffs\u2019 insurer and defendant and thus forecloses any suit by plaintiffs against defendant for damages arising out of the accident; furthermore, the trial court did not err in refusing to permit plaintiffs to withdraw their reply, since they made an irrevocable choice when they elected to plead full settlement.\nAm Jur 2d, Compromise and Settlement \u00a7 45.\nAppeal by plaintiffs-appellants from order entered 15 May 1995 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 28 March 1996.\nReid C. James for plaintiffs-appellants.\nStott, Hollowell, Palmer & Windham, L.L.P., by James C. Windham, Jr., for defendant-appellee."
  },
  "file_name": "0742-01",
  "first_page_order": 778,
  "last_page_order": 781
}