{ "id": 11242483, "name": "MARK E. PATE, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant", "name_abbreviation": "Pate v. State Farm Fire & Casualty Co.", "decision_date": "2000-03-07", "docket_number": "No. COA99-455", "first_page": "836", "last_page": "839", "citations": [ { "type": "official", "cite": "136 N.C. App. 836" } ], "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": "449 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524968 ], "year": 1994, "pin_cites": [ { "page": "564-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0561-01" ] }, { "cite": "333 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "256", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694301 ], "year": 1985, "pin_cites": [ { "page": "286", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0284-01" ] } ], "analysis": { "cardinality": 338, "char_count": 5446, "ocr_confidence": 0.741, "pagerank": { "raw": 9.752336355409857e-08, "percentile": 0.5311033577633291 }, "sha256": "42e7d9f2b98dc5bca591faec4c9f971e84f1760b8baa0ea126ef8dda1c7259be", "simhash": "1:6049d9399805a7b0", "word_count": 894 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and McGEE concur." ], "parties": [ "MARK E. PATE, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nMark E. Pate (\u201cplaintiff\u201d) appeals from the trial court\u2019s denial of his summary judgment motion against State Farm Fire and Casualty Company (\u201cdefendant\u201d). This is the only issue before this Court.\nBriefly, the facts relevant to this appeal are as follows. Plaintiff sought to repossess a truck owned by defendant\u2019s insured, Shawn Brabham (\u201cinsured\u201d), when the insured shot several bullets in the air and then on the ground, near plaintiff\u2019s feet. One of the bullets fired at the ground, ricocheted and hit plaintiff in the leg, injuring him. In filing the police report, plaintiff told the investigating officer that the insured shot \u201cat him,\u201d and that after he was shot, the insured threatened that \u201cthe next one will be at your head.\u201d The insured was arrested, pled guilty to the criminal charges of (1) assault with a deadly weapon causing serious injury; and (2) communicating threats. Insured was sentenced to three years in prison.\nLater, plaintiff filed suit in civil court against insured for personal injury. In his complaint, plaintiff alleged that insured only negligently shot him. Plaintiff did not name defendant as a party to the action, but he did notify defendant of the action pending against its insured. Defendant responded by letter stating that the act in question was not covered under its policy because: (1) plaintiff\u2019s injury was not the result of an accident or occurrence as defined by the policy; and (2) any injury sustained by plaintiff was expected or intended by insured. Therefore, defendant refused to defend insured since the incident was not covered by its policy.\nBecause insured did not respond to plaintiff\u2019s complaint, plaintiff motioned the court for a default judgment against him. Plaintiff\u2019s motion was granted in the amount of $12,500.00. The trial judge specifically found that insured did not intend to injure plaintiff. Subsequently, plaintiff filed suit against defendant (the case at bar) to have defendant held liable for the default judgment rendered against its insured.\nIn his motion for summary judgment, plaintiff alleged that because he had gained a default judgment against defendant\u2019s insured, and because defendant had \u201cwithout justification\u201d chosen not to defend its insured in the prior proceeding, defendant had \u201cbreached its policy contract and [wa]s now estopped from denying coverage to the Plaintiff . . . .\u201d Since denial of a summary judg-merit motion is not appealable once the case has gone to trial, we must dismiss plaintiffs appeal because he has brought forward no appealable issues before this Court.\nNorth Carolina law has long been clear on the issue of appealing a denied summary judgment motion after a case has been decided on the merits by the trier of fact:\nImproper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts, either judge or jury.\nThe denial of a motion for summary judgment is an interlocutory order and is not appealable. ... To grant a review of the denial of the summary judgment motion after a final judgment on the merits ... would mean that a party who prevailed at trial after a complete presentation of evidence by both sides with cross-examination could be deprived of a favorable verdict. This would allow a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence. . . . [Therefore], we hold that the denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits.\nHarris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985) (citation omitted).\nThe case at bar went to trial and a properly impaneled jury returned a verdict for defendant. In his brief, plaintiff argues issues of negligence versus intent, policy coverage and defendant\u2019s duty to defend the insured in the prior proceeding. However, plaintiff did not preserve the right to argue these issues on appeal where he neither moved the trial court for a directed verdict or judgment notwithstanding the verdict, nor did he give notice of appeal from the jury verdict. N.C.R. App. R 10(a).\nWe agree with Judge Sydnor Thompson, formerly of this Court, that \u201c[t]he denial of a motion for summary judgment is not reviewable during appeal [once] a final judgment [has been] rendered in a trial on the merits. Since there was a trial and final judgment in this case, the issue is not before us.\u201d Raintree Homeowners Assn. v. Bleimann, 116 N.C. App. 561, 564-65, 449 S.E.2d 13, 16 (1994). With no other issue before this Court, we must dismiss plaintiffs appeal.\nDismissed.\nJudges JOHN and McGEE concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Law Offices of Michael J. Bednarik, P.A., by Michael J. Bednarik, for plaintiff-appellant.", "Stiles Byrum & Home, L.L.P., by Ned A. Stiles and Lane Matthews, for defendant-appellee." ], "corrections": "", "head_matter": "MARK E. PATE, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant\nNo. COA99-455\n(Filed 7 March 2000)\nAppeal and Error\u2014 appealability \u2014 denial of summary judgment\nPlaintiff\u2019s appeal of the trial court\u2019s denial of his summary judgment motion is dismissed because it is an interlocutory order that is not reviewable since a final judgment has been rendered on the merits.\nAppeal by plaintiff from an order entered 23 September 1997 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 January 2000.\nLaw Offices of Michael J. Bednarik, P.A., by Michael J. Bednarik, for plaintiff-appellant.\nStiles Byrum & Home, L.L.P., by Ned A. Stiles and Lane Matthews, for defendant-appellee." }, "file_name": "0836-01", "first_page_order": 870, "last_page_order": 873 }