{
  "id": 9127038,
  "name": "GARY F. YORDY and KIMBERLY YORDY, Plaintiffs v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant",
  "name_abbreviation": "Yordy v. North Carolina Farm Bureau Mutual Insurance",
  "decision_date": "2002-03-05",
  "docket_number": "No. COA01-138",
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  "last_updated": "2023-07-14T21:06:37.161258+00:00",
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  "casebody": {
    "judges": [
      "Judges GREENE and TYSON concur."
    ],
    "parties": [
      "GARY F. YORDY and KIMBERLY YORDY, Plaintiffs v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nNorth Carolina Farm Bureau Mutual Insurance Company (\u201cdefendant\u201d) purports to appeal an order (1) granting partial summary judgment in favor of Gary F. Yordy and Kimberly Yordy (\u201cplaintiffs\u201d) on a defense raised by defendant in its response to the complaint, and (2) denying defendant\u2019s motion for summary judgment. Neither party has argued the threshold question of whether this appeal is interlocutory. However, \u201c[i]t is well established in this jurisdiction that if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves.\u201d Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). For the reasons set forth below, we dismiss this appeal as interlocutory.\n\u201cA grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\u201d Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However,\u2019 an interlocutory order may nonetheless be appealed pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure if: (1) the action involves multiple claims or multiple parties, (2) the order is \u201ca final judgment as to one or more but fewer than all of the claims or parties,\u201d and (3) the trial court certifies that \u201cthere is no just reason for delay.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (1999).\nIn the present action, plaintiffs seek a declaratory judgment as to whether they axe entitled to recover from defendant for plaintiff Gary Yordy\u2019s injuries resulting from a car accident. The trial court\u2019s order merely disposes of one of the various defenses raised by defendant in its answer to the complaint (namely, that plaintiffs are barred from recovering against defendant by a covenant not to execute). A defense raised by a defendant in answer to a plaintiffs complaint is not a \u201cclaim\u201d for purposes of Rule 54(b). See Schuch v. Hoke, 82 N.C. App. 445, 346 S.E.2d 313 (1986) (holding that trial court\u2019s order, granting plaintiff\u2019s motion for partial summary judgment on defenses of contributory negligence and assumption of risk, not final judgment as to any claim or party under Rule 54(b)). Thus, the trial court\u2019s order, disposing of this defense as a matter of law, is not \u201ca final judgment as to one or more but fewer than all of the claims or parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b). We note that, although the trial court purported to certify the case for immediate appeal under Rule 54(b), this act alone is insufficient where the other requirements of. Rule 54(b) are not satisfied. See, e.g., CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 153-54 (1999). For the reasons stated herein, we dismiss this appeal as interlocutory.\nDismissed.\nJudges GREENE and TYSON concur.",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "Thomas E. Dudley, III for plaintiff-appellees.",
      "Harold C. Spears and C. Grainger Pierce, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "GARY F. YORDY and KIMBERLY YORDY, Plaintiffs v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant\nNo. COA01-138\n(Filed 5 March 2002)\nAppeal and Error\u2014 appealability \u2014 interlocutory order\nDefendant insurance company\u2019s appeal in a declaratory judgment action from an order granting partial summary judgment in favor of plaintiffs and denying defendant\u2019s motion for summary judgment is dismissed as an appeal from an interlocutory order, because: (1) the trial court\u2019s order merely disposes of one of the various defenses raised by defendant in its answer to the complaint, and a defense raised by a defendant in answer to a plaintiff\u2019s complaint is not a claim for purposes of N.C.G.S. \u00a7 1A-1, Rule 54(b); and (2) although the trial court purported to certify the case for immediate appeal, this act alone is insufficient where the other requirements of Rule 54(b) are not satisfied.\nAppeal by defendant from judgment entered 7 November 2000 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 January 2002.\nThomas E. Dudley, III for plaintiff-appellees.\nHarold C. Spears and C. Grainger Pierce, Jr., for defendant-appellant."
  },
  "file_name": "0230-01",
  "first_page_order": 264,
  "last_page_order": 265
}