{ "id": 9367744, "name": "SUZANNE ENGLISH McCRARY, by and through her General Guardian, Charles W. McCrary, Jr., Plaintiff v. TERESA BYRD and HAM'S RESTAURANTS, INC., (FORMERLY HAM'S OF BURLINGTON, INC.), Defendants", "name_abbreviation": "McCrary ex rel. McCrary v. Byrd", "decision_date": "2002-02-19", "docket_number": "No. COA00-1400", "first_page": "630", "last_page": "641", "citations": [ { "type": "official", "cite": "148 N.C. App. 630" } ], "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": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "876", "parenthetical": "footnote omitted" }, { "page": "876-77", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "year": 1984, "pin_cites": [ { "page": "229", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "468 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "66" }, { "page": "66" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916322 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "190" }, { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0188-01" ] }, { "cite": "499 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "803" }, { "page": "804" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651129 ], "year": 1998, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0488-01" ] }, { "cite": "378 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "27" }, { "page": "27" }, { "page": "27" } ], "opinion_index": 0 }, { "cite": "324 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487753 ], "year": 1989, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0289-01" ] }, { "cite": "390 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307211 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0387-01" ] }, { "cite": "373 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560842, 2563181, 2562256, 2564346, 2561661 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0363-05", "/nc/323/0363-01", "/nc/323/0363-02", "/nc/323/0363-04", "/nc/323/0363-03" ] }, { "cite": "369 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525138 ], "year": 1988, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0464-01" ] }, { "cite": "401 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "825" }, { "page": "826" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523254 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "258" }, { "page": "260-61" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0255-01" ] } ], "analysis": { "cardinality": 785, "char_count": 23801, "ocr_confidence": 0.734, "pagerank": { "raw": 3.534769372907334e-07, "percentile": 0.8844865086728995 }, "sha256": "fbae0ded8fbffc6de56197eaba452257aefcd4db8f2fe2c26401fa55b20e16ff", "simhash": "1:4929c3367c4a0c7e", "word_count": 3661 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and CAMPBELL concur." ], "parties": [ "SUZANNE ENGLISH McCRARY, by and through her General Guardian, Charles W. McCrary, Jr., Plaintiff v. TERESA BYRD and HAM\u2019S RESTAURANTS, INC., (FORMERLY HAM\u2019S OF BURLINGTON, INC.), Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nSuzanne English McCrary (Plaintiff) by and through her general guardian, Charles W. McCrary, Jr., appeals an order dated 12 June 2000 in favor of Nationwide Mutual Insurance Company (Nationwide) denying Plaintiff\u2019s motion to compel arbitration.\nOn 23 October 1997, Plaintiff filed a complaint (the Complaint) together with attached interrogatories against Teresa Byrd (Byrd), Ham\u2019s Restaurants, Inc. (Ham\u2019s), and Nationwide. Plaintiff also served N.C. Farm Bureau Insurance Company (Farm Bureau), Byrd\u2019s liability insurer. In the Complaint, Plaintiff alleged negligence on the part of Ham\u2019s and Byrd for an incident occurring in the early morning hours of 19 October 1991. As a result of the incident, Plaintiff sustained serious physical injuries.\nNationwide provided uninsured/underinsured motorist coverage to Plaintiff. In order to provide coverage to Plaintiff, Nationwide\u2019s policy required that it be notified promptly of how, when, and where an accident occurred. Any person seeking coverage had the responsibility to: cooperate with Nationwide in the investigation, settlement, or defense of any claim or suit; authorize Nationwide to obtain medical reports and other pertinent records; and submit, as often as reasonably required, to examinations under oath. Nationwide would not provide uninsured or underinsured motorist coverage for bodily injury sustained by any person if that person or legal representative \u201csettlefd] the bodily injury . . . claim without [Nationwide\u2019s] written consent.\u201d Nationwide also provided that if it and an insured did not agree as to whether that person was entitled to coverage or as to the amount of damages, the insured had the right to demand arbitration. If an insured, however, declined to arbitrate, Nationwide\u2019s \u201cliability [would] be determined only in a legal action.\u201d\nPrior to Byrd\u2019s deposition, Nationwide wrote a letter to Byrd dated 12 March 1998 which stated that pursuant to Byrd\u2019s request, \u201cand after an asset check was performed, Nationwide has agreed to waive any and all subrogation rights they may have in the matter above captioned.\u201d Nationwide later filed notices of deposition for five non-party witnesses. Plaintiffs attorney attended all five depositions and examined the witnesses.\nIn addition to the above noticed depositions, Nationwide noticed the depositions of Plaintiff and her parents on 13 April 1998. Subsequently, Nationwide filed a notice on 9 June 1998 to take the deposition of Dr. Andrew P. Mason (Dr. Mason). All four depositions were scheduled to take place at the office of Plaintiff\u2019s attorney. Plaintiff objected to Dr. Mason\u2019s deposition subpoena arguing the subpoena was not properly issued, it was not properly served on Dr. Mason, it was \u201coverbroad,\u201d and there was no court order in place permitting the deposition of Dr. Mason. In response, Nationwide filed a motion for sanctions against Plaintiff for failure to comply with discovery requests and also filed a motion to compel the deposition testimony of Dr. Mason.\nBetween 30 April 1998 and 24 June 1998, Plaintiff entered into settlement negotiations with Byrd and Ham\u2019s, unbeknownst to Nationwide. On 24 June 1998, Plaintiff informed Nationwide of its tentative settlement with Byrd and Ham\u2019s by which Plaintiff would receive $100,000.00 from Farm Bureau, the amount equal to Byrd\u2019s limit of liability. As part of the settlement, Ham\u2019s also agreed to pay $35,000.00 to Farm Bureau and $5,000.00 to Plaintiff. By letter dated 24 June 1998, Plaintiff demanded the dispute between Plaintiff and Nationwide be resolved by arbitration and requested that no further discovery be permitted.\nIn an affidavit dated 22 July 1998, Nationwide\u2019s attorney stated Plaintiff had engaged in substantial discovery, including: Plaintiff serving numerous interrogatories on Ham\u2019s, Byrd, and Nationwide; the depositions of non-party witnesses were noticed by the agreement of Plaintiff and Nationwide; Plaintiff noticed the deposition of Byrd; and Plaintiff deposed non-party witnesses, all of whom would be able to attend any arbitration meeting. As of 23 June 1998, Nationwide had accrued at least $8,396.19 in legal fees and expenses.\nOn 22 July 1998, the trial court heard arguments on Nationwide\u2019s motion to compel discovery and its motion to prohibit arbitration, and also heard arguments on Plaintiff\u2019s motion for a protective order and her demand for arbitration. The trial court found, in pertinent part, that Plaintiff \u201cwilfully failed to present [herself or her parents] or Andrew Mason for the depositions at the time and place properly noticed . . . without just cause and . . . without a filed objection or motion for protective order.\u201d On 28 July 1998, the trial court filed an order requiring Plaintiff, her parents, and Dr. Mason to present themselves for their depositions on or before 31 July 1998. The motions with respect to arbitration were reserved to be heard by the trial court at a later date.\nAfter an appeal to this Court, the depositions of Plaintiff and her parents were taken on 29 February 2000. Subsequently, on 14 April 2000, the depositions of administrators and nursing staff at the University of North Carolina Hospitals were taken. During the depositions of hospital administrators, it was learned that certain records concerning the chain of custody for Plaintiff\u2019s blood sample had been destroyed in 1996.\nOn 14 April 2000, Plaintiff\u2019s case against Nationwide was set to be tried during the week of 5 June 2000. On 28 April 2000, a Nationwide claims adjuster filed an affidavit stating Nationwide had incurred approximately $30,970.19 for the handling of Plaintiff\u2019s tort action against Byrd and Ham\u2019s, and it had expended approximately $29,859.14 in Nationwide\u2019s claims against Plaintiff for breach of contract, bad faith, and a declaratory judgment action. Subsequently, Plaintiff brought her motion to compel arbitration before the trial court on 2 June 2000. In an order dated 12 June 2000, the trial court found facts consistent with the above stated facts, including:\n29. During the period of October 22, 1997, and the date of the hearing of the motion to compel arbitration, [Nationwide] has expended more than $60,000.00 in the defense of this claim and the prosecution of a companion case.\nThe trial court then concluded: the payment of $100,000.00 by Farm Bureau was not an exhaustion of limits; Nationwide\u2019s underinsured motorist coverage provision was not triggered; Plaintiff breached her contract of insurance with Nationwide by not submitting to her deposition when noticed, not giving Nationwide an opportunity to approve the settlement between Plaintiff and Byrd and Ham\u2019s, and releasing Ham\u2019s \u201cfrom a viable dram shop claim . . . [because it] extinguished any claims that [Nationwide] would have had for contribution against Ham\u2019s\u201d; Nationwide has been prejudiced by the actions of Plaintiff, including expending $60,000.00 in litigation costs, a declaratory judgment, as well as on a prior appeal; and Nationwide was \u201cprejudiced by the delay of. . . Plaintiff in proceeding forward with certain depositions, as evidence that could have been gained at an earlier time was lost, due to the destruction of records.\u201d\nThe issues are whether: (I) Plaintiff breached the terms of the policy with Nationwide by failing to: (A) exhaust the limits of Byrd\u2019s liability insurance; (B) give Nationwide an opportunity to approve the settlement between Plaintiff and Ham\u2019s and Byrd; (C) submit to her depositions when noticed; and (D) preserve Nationwide\u2019s claims for contribution against Ham\u2019s; and (II) Plaintiff waived her contractual right of arbitration by: (A) Nationwide expending $60,000.00 in litigation costs; and (B) her delay in appearing for noticed depositions.\n\u201cInitially, we note that an order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.\u201d Prime South Homes, Inc. v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991).\nI\nContractual Entitlement to Arbitration\nNationwide argues in its brief to this Court that Plaintiff\u2019s failure to abide by her contract with Nationwide precluded Plaintiff\u2019s right to arbitrate. We need not decide whether an alleged failure by Plaintiff to abide by the contract precludes arbitration as we determine Plaintiff has abided by the terms of the contract.\nA\nExhaustion\nPlaintiff argues the trial court erred in concluding Plaintiff failed to exhaust the limits of Byrd\u2019s liability insurance. We agree.\nUnderinsured motorist coverage is available to an insured after the \u201cpayment of judgment or settlement, all liability bonds or insurance policies providing coverage for bodily injury caused by the ownership, maintenance, or use of the underinsured highway vehicle have been exhausted.\u201d N.C.G.S. \u00a7 20-279.21(b)(4) (1999). Exhaustion occurs \u201cwhen either (a) the limits of liability per claim have been paid upon the claim, or (b) by reason of multiple claims, the aggregate per occurrence limit of liability has been paid.\u201d Id. \u201c \u2018Exhaust\u2019 is a broad term meaning to use up, consume or deplete.\u201d Brown v. Lumbermens Mut. Cas. Co., 90 N.C. App. 464, 475, 369 S.E.2d 367, 373, disc. review denied, 323 N.C. 363, 373 S.E.2d 541 (1988), aff\u2019d, 326 N.C. 387, 390 S.E.2d 150 (1990).\nIn this case, Farm Bureau insured Byrd for $100,000.00 per person. In Byrd\u2019s settlement with Plaintiff, Farm Bureau was to pay $100,000.00 to Plaintiff. At the time Farm Bureau paid the $100,000.00 to Plaintiff, it paid its limits of liability per person; Byrd\u2019s limits of liability under the Farm Bureau policy were thus \u201cuse[d] up, consume [d] or deplete[d].\u201d Plaintiff has therefore exhausted Byrd\u2019s liability limits with Farm Bureau, regardless of whether Farm Bureau received additional payment from Ham\u2019s, as the $100,000.00 payment to Plaintiff represented Farm Bureau\u2019s limits of liability. As Farm Bureau\u2019s limits of liability had been exhausted, the provisions of Plaintiff\u2019s underinsured motorist contract with Nationwide applied. Accordingly, the trial court erred in concluding Farm Bureau\u2019s limits of liability had not been exhausted and, thus, the underinsured motorist coverage provisions had not been triggered.\nB\nNotice of Settlement\nPlaintiff argues the trial court erred in concluding Plaintiff breached her contract with Nationwide by not giving Nationwide an opportunity to approve the settlement Plaintiff had with Byrd and Ham\u2019s. We agree.\nThe primary purpose of a consent-to-settlement clause is to \u201cprotect the insurer\u2019s right of subrogation.\u201d Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 298, 378 S.E.2d 21, 27 (1989). If an insurer has waived its right to subrogation, an insured\u2019s failure to obtain the insurer\u2019s consent before entering into a settlement agreement does not, as a matter of law, bar the insured\u2019s recovery against the insurer for underinsured motorist coverage. Id. Consent-to-settlement clauses, however, also serve the secondary purpose of protecting the underinsured motorist carrier \u201cagainst collusion between the tort[-]feasor and the insured and noncooperation on the part of the tort[-]feasor after his or her release by the insured.\u201d Id. at 299, 378 S.E.2d at 27.\nIn this case, in a letter dated 12 March 1998, Nationwide agreed to waive any and all subrogation rights it had in Plaintiff\u2019s action against Byrd and Ham\u2019s. Since Nationwide waived its right of subro-gation, the consent-to-settlement clause no longer served the primary purpose of protecting Nationwide\u2019s right to subrogation. As to the secondary purpose, there is no evidence of collusion in the record to this Court. Indeed, collusion was not raised before the trial court nor addressed by the trial court. Accordingly, the trial court erred in concluding Plaintiff\u2019s failure to obtain Nationwide\u2019s consent before entering into the settlement with Byrd and Ham\u2019s barred her recovery against Nationwide. See id. at 298, 378 S.E.2d at 27.\nC\nDepositions\nPlaintiff argues her failure to voluntarily submit to depositions after she had filed a motion to compel arbitration was not a breach of her contract with Nationwide. We agree.\nDiscovery during arbitration, as opposed to litigation, is designed to be minimal, informal, and less extensive. Palmer v. Duke Power Co., 129 N.C. App. 488, 491, 499 S.E.2d 801, 803 (1998). Thus, contrary to a civil case, where a broad right of discovery exists, discovery during arbitration is generally at the discretion of the arbitrator. Id. at 492, 499 S.E.2d at 804. Moreover, participation in discovery not available at arbitration may constitute a waiver of a party\u2019s right to arbitrate. Prime South, 102 N.C. App. at 260-61, 401 S.E.2d at 826.\nIn this case, Plaintiffs deposition, although scheduled prior to Plaintiff filing her motion to compel arbitration, was scheduled to take place at a date beyond the time Plaintiff had filed her motion to compel arbitration. Although Plaintiff refused to attend the scheduled deposition until after a court order and her appeal to this Court, Plaintiff nevertheless submitted to the noticed deposition. Based on case law, Plaintiff had a well-founded belief that her participation in a deposition after she had already requested arbitration may have resulted in her waiving her right to arbitration. Moreover, the provision in Nationwide\u2019s contract required that an insured submit to examinations under oath as cooperation to the defense, settlement, or investigation of a claim. At the time Nationwide sought to depose Plaintiff, there was no indication Nationwide wished to settle with Plaintiff, rather, Nationwide appeared to be assuming an adversarial role. Likewise, there is no provision in Nationwide\u2019s contract with Plaintiff that if Plaintiff failed to submit to a deposition she would waive either coverage or her right to arbitrate. Accordingly, the trial court erred in holding Plaintiff breached her contract with Nationwide and thus was not entitled to arbitration.\nD\nNationwide\u2019s Right to Contribution\nPlaintiff argues the trial court erred in concluding Plaintiff\u2019s release of Ham\u2019s \u201cfrom a viable dram shop claim .. . extinguished any claims that [Nationwide] would have had for contribution against Ham\u2019s.\u201d We agree.\n\u201cThe right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability.\u201d N.C.G.S. \u00a7 1B-I(b) (1999); Johnson v. Hudson, 122 N.C. App. 188, 190, 468 S.E.2d 64, 66 (1996). An underinsured motorist carrier is not a tort-feasor and thus has no right of contribution. Johnson, 122 N.C. App. at 190, 468 S.E.2d at 66.\nIn this case, Nationwide, an underinsured motorist insurance carrier, is not a tort-feasor and thus has no right of contribution against Ham\u2019s. Accordingly, the trial court erred in concluding Plaintiff\u2019s release of Ham\u2019s extinguished any claims Nationwide would have had for contribution against Ham\u2019s.\nII\nWaiver of Arbitration\nNationwide next argues that even if Plaintiff were entitled to arbitration, she nonetheless waived her right to arbitrate. We disagree.\nA party \u201cimpliedly waive [s] its contractual right to arbitration if by its delay or by actions it takes which are inconsistent with arbitration, another party to the contract is prejudiced by the order compelling arbitration.\u201d Cyclone Roofing Co., Inc. v. Lafave Co., Inc., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984) (footnote omitted). A party is prejudiced if, for example,\nit is forced to bear the expenses of a lengthy trial. . . ; evidence helpful to a party is lost because of delay in the seeking of arbitration . . . ; a party\u2019s opponent takes advantage of judicial discovery procedures not available in arbitration . . . ; or, by reason of delay, a party has taken steps in litigation to its detriment or expended significant amounts of money thereupon.\nId. at 229-30, 321 S.E.2d at 876-77 (citations omitted). A party, however, does not waive her contractual right to arbitration or prejudice the other party by the mere filing of pleadings. Prime South, 102 N.C. App. at 259, 401 S.E.2d at 825.\nA\nLitigation Costs\nPlaintiff contends the trial court incorrectly held Nationwide was prejudiced by its expenditure of $60,000.00 due to Plaintiff\u2019s delay in seeking arbitration, as \u201cthere are no findings Nationwide could have avoided these expenses through an earlier request for arbitration, or that such expenses were incurred after the right to demand arbitration accrued.\u201d We agree.\nIn this case, prior to Plaintiff\u2019s demand for arbitration, Nationwide had expended only $8,396.19 in legal fees and expenses. The amount of money expended by Nationwide prior to Plaintiff demanding arbitration occurred primarily from Nationwide noticing depositions and examining witnesses, as well as examining the scene of the accident. Although the trial court found Nationwide had expended more than $60,000.00 in the defense of Plaintiff\u2019s case during the period between 22 October 1997 and the date of the hearing before the trial court, there was no finding whether any of those fees resulted from Plaintiff\u2019s delay in demanding arbitration. Indeed, almost half of the $60,000.00 constituted Nationwide\u2019s pursuit of claims against Plaintiff in a separate action. Accordingly, as Nationwide had expended only $8,396.19 in legal fees prior to Plaintiff\u2019s demand for arbitration, the trial court erred in concluding Nationwide was prejudiced by having expended $60,000.00 in litigation costs.\nB\nDelay in Depositions\nPlaintiff contends the trial court erred in finding evidence was lost as a result of Plaintiff\u2019s alleged delay in seeking arbitration. We agree.\nIn this case, the trial court concluded Nationwide was \u201cprejudiced by the delay of . . . Plaintiff in proceeding forward with certain depositions, as evidence that could have beeri gained at an earlier time was lost, due to the destruction of records.\u201d As the trial court found the records were destroyed in 1996 and all the depositions Plaintiff objected to were scheduled to take place in 1998, there is no indication that Plaintiff\u2019s delay in proceeding with the depositions as scheduled in 1998 could have caused records to be destroyed in 1996. We note that the trial court did not find or conclude that Plaintiff\u2019s delay in seeking arbitration caused evidence to be destroyed, only that Plaintiff\u2019s delay in proceeding with the depositions caused evidence to be destroyed. In addition, as previously stated in part 1(C) of this opinion, Plaintiff did not waive arbitration by failing to submit to depositions. Accordingly, the trial court erred in concluding Plaintiff\u2019s delay in proceeding with the depositions caused certain evidence to be lost.\nWe note both parties presented arguments in their brief to this Court concerning Plaintiff\u2019s waiver of arbitration by participating in discovery not available at arbitration. While making extensive findings regarding Plaintiff's participation in discovery, the trial court neither found nor concluded Plaintiff waived her contractual right of arbitration by participating in discovery not available at arbitration. Because Nationwide has failed to cross-appeal or cross-assign error to this omission by the trial court, we do not address the issue of whether Plaintiff waived her right to arbitrate by participating in discovery.\nReversed and remanded.\nJudges MCCULLOUGH and CAMPBELL concur.\n. After Nationwide filed a motion, the trial court deleted Nationwide\u2019s name from the caption of the proceeding and Nationwide was allowed to defend as an unnamed defendant.\n. Farm Bureau insured Byrd in a policy of automobile liability insurance providing liability limits in the amount of $100,000.00 per person/$300,000.00 per occurrence.\n. The caption listed Byrd, Ham\u2019s, and Nationwide as defendants.\n. Nationwide argues there has been no exhaustion as Farm Bureau received reimbursement of $36,000.00 from Ham\u2019s, thus, Farm Bureau\u2019s net payout was $66,000.00. In determining exhaustion, the focus is not on Farm Bureau\u2019s net payout but whether Farm Bureau paid to Plaintiff the full dollar amount its policy set as the limits of liability.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Thomas L. Nesbit, P.C., by Thomas L. Nesbit; and Womble Carlyle Sandridge & Rice PLLC, by Burley B. Mitchell, Jr., for plaintiff-appellant.", "Teague, Rotenstreich & Stanaland, LLP, by Kenneth B. Rotenstreich and Paul A. Daniels, for unnamed defendant-appellee Nationwide Mutual Insurance Company.", "No brief filed for defendant-appellee Byrd." ], "corrections": "", "head_matter": "SUZANNE ENGLISH McCRARY, by and through her General Guardian, Charles W. McCrary, Jr., Plaintiff v. TERESA BYRD and HAM\u2019S RESTAURANTS, INC., (FORMERLY HAM\u2019S OF BURLINGTON, INC.), Defendants\nNo. COA00-1400\n(Filed 19 February 2002)\n1. Appeal and Error\u2014 appealability \u2014 denial of arbitration\nAn order denying arbitration is immediately appealable even though interlocutory because it involves a substantial right which might be lost if appeal is delayed.\n2. Insurance\u2014 underinsured motorist \u2014 partial reimbursement \u2014 exhaustion of coverage\nThe trial court erred by concluding that Farm Bureau\u2019s limits of liability had not been exhausted and that underinsured motorist provisions had not been triggered where Farm Bureau had insured defendant Byrd for $100,000 per person, Farm Bureau paid $100,000 to plaintiff in a settlement with Byrd, and Farm Bureau received a $35,000 reimbursement from defendant Ham\u2019s. The focus is not on Farm Bureau\u2019s net payout, but whether it paid plaintiff the full dollar amount set in the policy as the limit of liability.\n3. Insurance\u2014 underinsured motorist \u2014 subrogation rights\u2014 approval of settlements\nThe trial court erred by concluding that plaintiff breached her underinsured motorist contract with Nationwide by not giving Nationwide the opportunity to approve her settlement with defendants. Nationwide had agreed to waive any and all subrogation rights it had in the action and the consent clause no longer served the primary purpose of protecting Nationwide\u2019s right to subrogation. There was no evidence of collusion between the tortfeasor and the insured; indeed, collusion was not raised before the trial court.\n4. Arbitration and Mediation\u2014 failure to submit to depositions \u2014 waiver\nThe trial court erred by holding that plaintiff breached her underinsured motorist insurance contract with Nationwide and was not entitled to arbitration where she failed to voluntarily submit to depositions after she had filed a motion to compel arbitration. Plaintiff had a well-founded belief that her participation in a deposition after she had requested arbitration may have resulted in waiving arbitration.\n5. Contribution\u2014 insurance carrier \u2014 not a tortfeasor \u2014 no right of contribution\nThe trial court erred by concluding that plaintiff\u2019s release of a restaurant from a dram shop claim extinguished any claims Nationwide would have had for contribution against the restaurant; Nationwide was not a tortfeasor and had no right of contribution.\n6. Arbitration and Mediation\u2014 waiver \u2014 delay\u2014expenditure of funds\nThe trial court erred by finding that plaintiff had waived arbitration based upon findings that Nationwide had expended $60,000 defending the claim and that evidence was lost as a result . of plaintiff\u2019s alleged delay in seeking arbitration, but there was no finding about whether any of those expenditures resulted from plaintiff\u2019s delay in demanding arbitration, there is no indication that plaintiff\u2019s objections to depositions in 1998 could have caused records to be destroyed in 1996, and the court did not find or conclude that plaintiff\u2019s delay in seeking arbitration caused evidence to be destroyed.\nAppeal by plaintiff from order dated 12 June 2000 by Judge C. Preston Cornelius in Guilford County Superior Court. Heard in the Court of Appeals 4 December 2001.\nThomas L. Nesbit, P.C., by Thomas L. Nesbit; and Womble Carlyle Sandridge & Rice PLLC, by Burley B. Mitchell, Jr., for plaintiff-appellant.\nTeague, Rotenstreich & Stanaland, LLP, by Kenneth B. Rotenstreich and Paul A. Daniels, for unnamed defendant-appellee Nationwide Mutual Insurance Company.\nNo brief filed for defendant-appellee Byrd." }, "file_name": "0630-01", "first_page_order": 660, "last_page_order": 671 }