{
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  "name": "UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee v. SANDRA V. SCOTT, STEPHANIE S. JOHNSON AND DEBORAH S. GILBERT, Defendants-Appellants",
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  "casebody": {
    "judges": [
      "Judges JOHNSON and LEWIS concur."
    ],
    "parties": [
      "UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee v. SANDRA V. SCOTT, STEPHANIE S. JOHNSON AND DEBORAH S. GILBERT, Defendants-Appellants"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nOn 19 March 1993, defendant Sandra V. Scott shot and killed her husband, Duke Tyler Scott. Thereafter, defendants Deborah Johnson and Stephanie Gilbert, the deceased\u2019s daughters, brought an action against Scott, their stepmother, for wrongful death, intentional infliction of emotional distress and negligent infliction of emotional distress.\nIn March 1994, Scott entered into a confidential settlement agreement with Johnson and Gilbert. As per the agreement, Johnson and Gilbert dismissed two of the three claims they had against Scott. In return, Scott agreed to plead guilty to voluntary manslaughter, to pay her stepdaughters $415,000 in cash and to release any claim she had to certain real and personal property owned by her and the deceased.\nThe settlement agreement permitted Johnson and Gilbert to sever their claim for negligent infliction of emotional distress from the original lawsuit and to refile it in a subsequent action. However, the agreement limited Johnson and Gilbert\u2019s right to collect on any possible recovery to Scott\u2019s homeowner\u2019s insurance policy from plaintiff United States Fidelity and Guaranty Company (\u201cUSF&G\u201d). The agreement stated:\nIn the event that any judgment shall be entered against Defendant [Scott] in this surviving issue, then Defendant\u2019s real or personal belongings shall not be subject to execution, it being the understanding and agreement by and between the parties that the sole source of collection shall be the Defendant\u2019s insurance policy and/or carrier\n(emphasis added.)\nUSF&G filed a declaratory judgment action in Alamance County in November 1994 to determine its obligation to Scott, Johnson and Gilbert under Scott\u2019s homeowner\u2019s policy. In March 1995, the trial court ordered that defendants turn over a copy of their confidential settlement agreement to USF&G\u2019s counsel. Thereafter, the trial court granted USF&G\u2019s motion for summary judgment on the ground that the settlement agreement relieved USF&G of any obligation to defend or afford coverage to Scott.\nScott filed a timely notice of appeal, however, she failed to file a supporting brief and USF&G moved to dismiss her appeal pursuant to Rule 13(c) of the North Carolina Rules of Appellate Procedure. Johnson and Gilbert also appeal; however, we conclude that they are not real parties in interest in the litigation and therefore may not appeal from the judgment.\nOnly a \u201creal party in interest\u201d has the legal right to maintain a cause of action. Crowell v. Chapman, 306 N.C. 540, 293 S.E.2d 767 (1982). In order to qualify as a real party in interest, a party must have some interest in the subject matter of the litigation and not merely an interest in the action. Parnell v. Insurance Co., 263 N.C. 445, 449, 139 S.E.2d 723, 726 (1965). In other words, \u201c[a] real party in interest is a party who is benefitted or injured by the judgment in the case.\u201d Id. at 448, 139 S.E.2d at 726 (quoting Rental Co. v. Justice, 211 N.C. 54, 55, 188 S.E. 609, 610 (1936)). Furthermore, a party does not automatically qualify as a real party merely because they have been included as a defendant in a declaratory judgment action. Insurance Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206 (1977), disc. review denied, 293 N.C. 159, 236 S.E.2d 704 (1977).\nIn Walker, plaintiff insurance company asked the court to determine its liability for injuries sustained by defendant Walker while on the property of defendant Lewis, plaintiff\u2019s insured. This Court held that since Walker had yet to determine Lewis\u2019 liability for his injuries, he was not a real party in interest and entitled to appeal the trial court\u2019s judgment, notwithstanding the fact that plaintiff\u2019s prayer for relief asked the court to determine whether defendant Walker was entitled to coverage.\nIn the instant case, Johnson and Gilbert have yet to determine Scott\u2019s liability in their claim for negligent infliction of emotional distress. At this point, they have no interest in the subject matter of the litigation. Therefore, despite Johnson and Gilbert being named as defendants, this declaratory judgment action involves only USF&G and Scott. Moreover, we note that even if Johnson and Gilbert had the right to appeal, we would affirm the trial court\u2019s decision to grant summary judgment in USF&G\u2019s favor on the ground that the insurer had no obligation to Johnson and Gilbert where Scott, the insured, was protected by a covenant not to execute. See Lida Manufacturing Co. v. U.S. Fire Ins. Co., 116 N.C. App. 592, 448 S.E.2d 854 (1994), disc. review allowed, 339 N.C. 738, 454 S.E.2d 653 (1995).\nAccordingly, since Johnson and Gilbert are not real parties in interest to this suit, their appeal is,\nDismissed.\nJudges JOHNSON and LEWIS concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Hunter Law Firm, by R. Christopher Hunter, Elizabeth K. Blake and Gregg Pasternack, for Defendants-Appellants.",
      "Wilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for Plaintiff-Appellee."
    ],
    "corrections": "",
    "head_matter": "UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee v. SANDRA V. SCOTT, STEPHANIE S. JOHNSON AND DEBORAH S. GILBERT, Defendants-Appellants\nNo. COA95-1271\n(Filed 15 October 1996)\nParties \u00a7 21 (NCI4th)\u2014 appeal \u2014 parties in interest\nAn appeal was dismissed as to defendants Johnson and Gilbert where defendant Scott shot and killed her husband; defendants Johnson and Gilbert, the deceased\u2019s daughters, brought a civil action against Scott, their stepmother; Scott entered into a confidential settlement agreement with Johnson and Gilbert which limited Johnson and Gilbert\u2019s right to collect to Scott\u2019s homeowner\u2019s insurance policy from plaintiff, USF&G; plaintiff filed a declaratory judgment action to determine its obligation; and the trial court granted plaintiff\u2019s motion for summary judgment. The declaratory judgment action involves only USF&G and Scott, despite Johnson and Gilbert being named as defendants, because Johnson and Gilbert have yet to determine Scott\u2019s liability in their claim for negligent infliction of emotional distress and have no interest in the subject matter of the litigation. Even if they had the right to appeal, the trial court\u2019s decision to grant summary judgment would be affirmed on the ground that the insurer had no obligation to Johnson and Gilbert because the insured, Scott, was protected by a covenant not to execute.\nAm Jur 2d, Parties \u00a7\u00a7 41, 42.\nAppeal by Defendants Johnson and Gilbert from Order entered 28 July 1995 by Judge James C. Spencer, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 26 August 1996.\nHunter Law Firm, by R. Christopher Hunter, Elizabeth K. Blake and Gregg Pasternack, for Defendants-Appellants.\nWilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for Plaintiff-Appellee."
  },
  "file_name": "0224-01",
  "first_page_order": 262,
  "last_page_order": 265
}