{ "id": 9191647, "name": "ROBERT A. FREEMAN, III, and STEPHEN L. BARDEN, III, as Trustees of the Kenneth Wilson Trust, and KENNETH WILSON, Plaintiffs v. PACIFIC LIFE INSURANCE COMPANY, Defendant", "name_abbreviation": "Freeman v. Pacific Life Insurance", "decision_date": "2003-03-18", "docket_number": "No. COA02-634", "first_page": "583", "last_page": "590", "citations": [ { "type": "official", "cite": "156 N.C. App. 583" } ], "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": "429 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "436", "parenthetical": "citing N.C.G.S. \u00a7\u00a7 1C-1701 to -1708 (1991)" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525448 ], "year": 1993, "pin_cites": [ { "page": "300", "parenthetical": "citing N.C.G.S. \u00a7\u00a7 1C-1701 to -1708 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0298-01" ] }, { "cite": "505 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659720, 1659887, 1659795, 1659676, 1659966 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0071-04", "/nc/348/0071-03", "/nc/348/0071-05", "/nc/348/0071-02", "/nc/348/0071-01" ] }, { "cite": "494 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653257 ], "year": 1998, "pin_cites": [ { "page": "199-200" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0189-01" ] }, { "cite": "30 L. Ed. 2d 543", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 992", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6438306, 6438820, 6437989, 6438534, 6437863, 6438635, 6438379, 6438735, 6438100, 6438456, 6438235, 6438172 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0992-06", "/us/404/0992-12", "/us/404/0992-02", "/us/404/0992-09", "/us/404/0992-01", "/us/404/0992-10", "/us/404/0992-07", "/us/404/0992-11", "/us/404/0992-03", "/us/404/0992-08", "/us/404/0992-05", "/us/404/0992-04" ] }, { "cite": "445 F.2d 601", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 818247 ], "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/f2d/445/0601-01" ] }, { "cite": "581 P.2d 489", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10455024 ], "year": 1978, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/p2d/581/0489-01" ] }, { "cite": "28 U.S.C. \u00a7 1738", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 }, { "cite": "253 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550132 ], "year": 1979, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0291-01" ] }, { "cite": "72 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624065 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0212-01" ] }, { "cite": "120 S.E. 328", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "186 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654237 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/186/0564-01" ] }, { "cite": "76 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618261 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0697-01" ] }, { "cite": "70 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "235 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625867 ], "year": 1952, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0522-01" ] }, { "cite": "325 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "501" }, { "page": "501" }, { "page": "501" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 436", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526894 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "440" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0436-01" ] }, { "cite": "302 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "308 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707437 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "491" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0488-01" ] }, { "cite": "176 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "277 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563887 ], "year": 1970, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0230-01" ] }, { "cite": "455 U.S. 691", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11307431 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "704", "parenthetical": "internal quotations omitted" }, { "page": "570", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/455/0691-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] } ], "analysis": { "cardinality": 779, "char_count": 15727, "ocr_confidence": 0.751, "pagerank": { "raw": 9.170430917668898e-08, "percentile": 0.5088868115477003 }, "sha256": "8f25c56403738eb990cf684fe90564b7dc07c6454346471cd6228ce8d4e07747", "simhash": "1:994395b1fe2f7440", "word_count": 2548 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and CALABRIA concur." ], "parties": [ "ROBERT A. FREEMAN, III, and STEPHEN L. BARDEN, III, as Trustees of the Kenneth Wilson Trust, and KENNETH WILSON, Plaintiffs v. PACIFIC LIFE INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "TYSON, Judge\nI. Background\nOn 25 January 1994, Kenneth Wilson (\u201cWilson\u201d) purchased a \u201cflexible premium adjustable\u201d life insurance policy (\u201cpolicy\u201d) on his life with a death benefit of $4,000,000.00 from Pacific Life Insurance Company (\u201cdefendant\u201d). The policy is owned by an insurance trust with Robert A. Freeman III (\u201cFreeman\u201d) and Stephen L. Barden III (\u201cBarden\u201d) serving as named Trustees.\nDefendant\u2019s agent told Wilson that if he paid an initial sum of $1,044,015.00 for the policy and made 60 consecutive monthly payments of $8,765.00, the policy reserves would service the policy until Wilson attained the age of 92. The agent in selling the policy further represented that, as a \u201cvanishing premium\u201d policy, no further premium payments would be required to maintain a death benefit of $4,000,000.00.\nWilson paid the sixty monthly premiums, but continued to receive premium due notices from defendant. Wilson asked his agent why further premium notices were sent, and was informed that defendant would only maintain the agreed-upon death benefit through age 69 and that the earlier representation was an \u201cillustration.\u201d Defendant\u2019s letter to Wilson, dated 19 November 1999, restated defendant\u2019s position as previously expressed by the agent.\nOn 2 December 1999, Freeman received a letter informing him that Wilson\u2019s policy received a credit as a result of a class action suit known as Ace Seat Cover Co., Inc. et al. v. Pacific Life Insurance Company. According to plaintiffs, this was the first time they became aware of the class action, filed during April of 1997 in Kentucky. The class action included owners of a \u201cvanishing premium\u201d policy sold by defendant. The Kentucky Court ordered a proposed settlement to be sent to all policy holders (1) to inform them of the proposed settlement and the details of the fairness hearing, and (2) to inform each policy owner of the right to opt out of the class action, if notice was given no later than 24 September 1998.\nThe notice included a release stating that class members who failed to \u201copt out\u201d could not institute proceedings against defendant relating to \u201cReleased Transactions\u201d defined as \u201cthe marketing, solicitation, application, underwriting, acceptance, sale, purchase, operation, retention, administration, servicing or replacement ... of the Policies.\u201d \u201cPolicies\u201d are defined as, \u201call whole life, universal life and/or variable life insurance policies issued during the period January 1, 1982 through December 31, 1997.\u201d\nPlaintiffs testified that they never received this notice. Defendant contends that its records show that notice was mailed to the Kenneth Wilson Trust at Freeman\u2019s address. Wilson never received any notice, although he had received monthly premium notices at his address for over five years. Defendant contributed $15,770.47 to the accumulated value of Wilson\u2019s policy, as a result of the class action settlement.\nPlaintiffs filed the present action requesting damages for breach of contract and unfair and deceptive trade practices, and asking for a declaratory judgment regarding the terms of the policy\u2019s coverage. Defendant moved for summary judgment on the basis that plaintiffs\u2019 suit was barred by the class action. The trial court granted defendant\u2019s motion. Plaintiffs appeal.\nII. Issues\nThe issue is whether the trial court erred in entering summary judgment against plaintiffs on the basis: (1) the Kentucky order precluded their suit and (2) the notice given was sufficient as a matter of law.\nIII. Standard of Review\n\u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce- Terminix Co. v. Zuring Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nIV. Preservation of Error\nPlaintiffs contend that the trial court erred in granting summary judgment for defendant and argue that: (1) an issue of fact exists whether defendant complied with due process requirements and the notice provisions of the Kentucky court\u2019s order and (2) the Kentucky judgment is not entitled to full faith and credit because: (a) procedural requirements have not been met, (b) the record is facially incomplete, (c) the record of the proceedings is ambiguous, and (d) plaintiffs did not receive actual notice of the Kentucky proceedings.\nDefendant argues that plaintiffs preserved only one of these errors for appeal. Plaintiffs contended in their motion in opposition to summary judgment only that defendant did not comply with the notice provisions of the Kentucky order. Errors not preserved for appeal are not properly reviewable by this Court. N.C. R. App. P. 10(b) (2002). Because the trial court based its grant of summary judgment on the application of the Full Faith and Credit Clause to the Kentucky judgment and this issue is threshold, we address this question pursuant to our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure.\nV. Full Faith and Credit Clause\nThe trial court in granting summary judgment, in effect, held that the Full Faith and Credit clause mandates the judgment be given the same effect in North Carolina that it has in Kentucky. \u201cFull Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.\u201d U.S. Const. Art. IV, \u00a7 1. \u201c[T]he judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.\u201d Underwriters Assur. v. North Carolina Life, 455 U.S. 691, 704, 71 L. Ed. 2d 558, 570 (1982) (internal quotations omitted).\nThe Full Faith and Credit clause only requires the foreign judgment be given the same force and effect it enjoys in the state where rendered. The law of the rendering court is reviewed to determine whether the judgment is valid. See Marketing Systems v. Realty Co., 277 N.C. 230, 234, 176 S.E.2d 775, 777 (1970). \u201c[T]he judgment from the rendering court must be deemed to have satisfied certain requisites of a valid judgment before full faith and credit will be granted to it.\u201d Boyles v. Boyles, 308 N.C. 488, 491, 302 S.E.2d 790, 793 (1983).\nVI. Kentucky Law\nPlaintiffs contend that the Kentucky judgment is not entitled to full faith and credit because plaintiff did not receive \u201cactual notice\u201d of the proceedings. Plaintiffs further contend that the issue of notice is for North Carolina courts, citing White v. Graham, 72 N.C. App. 436, 325 S.E.2d 497 (1985).\nWe find White distinguishable. The plaintiff in White received a petition for divorce, that also requested that the Texas court divide the marital property fairly. White, 72 N.C. App. at 440, 325 S.E.2d at 501. Plaintiff had executed a property settlement contract, whose only executory provisions were those which provided for plaintiffs support. Id. at 440-41, 325 S.E.2d at 501. Those provisions were valid and binding under both Texas and North Carolina law. Id. at 441, 325 S.E.2d at 501. Because \u201c[u]nder Texas law, a property division decree could not affect a valid support agreement, ...\u201d this Court held that plaintiff lacked notice that the Texas proceedings would involve contractual support obligations. Id. Although the discussion over notice cited North Carolina authority, whether notice was sufficient rested upon the Court\u2019s analysis of Texas law. Id. at 440-41, 325 S.E.2d at 501.\nSubstantive questions of law \u201care controlled by the law of the place \u2014 the lex loci; whereas matters of procedure are controlled by the law of the forum \u2014 the lex fori. \u201d Childress v. Motor Lines, 235 N.C. 522, 524, 70 S.E.2d 558, 560 (1952). Although North Carolina is the forum for the current suit, the validity of the judgment to bar the current action must be reviewed according to the laws of Kentucky.\nKentucky\u2019s notice requirements for class actions is set forth in Ky. Rev. Stat. Ann. CR 23.03(2) (2001): \u201c[i]n any class action . . ., the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.\u201d (Emphasis supplied).\nThe Kentucky court found the \u201cbest notice practicable\u201d was to mail notice to all affected policy owners and to publish the notice in newspapers in every state as well as other national newspapers. Defendants presented evidence in the form of affidavits and exhibits to show that they complied with the notice requirement ordered by the court.\nThe Kentucky court presiding over the Ace Seat Cover class action, specifically found as fact that jurisdiction was proper and that defendant had provided the required notice. Our state Supreme Court has stated that \u201cthe second court\u2019s scope of review concerning the rendering court\u2019s jurisdiction is very limited.\u201d Boyles, 308 N.C. at 491, 302 S.E.2d at 793. Viewing the evidence in the light most favorable to the plaintiffs, defendant sufficiently complied with the notice provisions to require that the Kentucky judgment be accorded full faith and credit. Plaintiffs\u2019 allegations that they did not receive actual notice are irrelevant to the effect of the judgment upon them. The evidence shows and the trial court found that defendant complied with the notice requirements, even though plaintiffs did not allegedly receive actual notice. Defendant mailed the notice to the name and address of the owner listed in the policy application, and had no knowledge it was not received. Defendant was not required by the statute or the court order to contact both Wilson as the insured and Freeman, trustee for the policy-owner trust.\nPlaintiffs also argue that the Kentucky judgment is incomplete, ambiguous, and not entitled to full faith and credit. Plaintiffs cite no authority to support their argument that the incomplete record of the foreign judgment at a summary judgment hearing prohibits the trial court from giving it full faith and credit. Plaintiffs contend that ambiguity in the record should prevent according the judgment full faith and credit, relying upon White v. Graham, supra.\nAn elementary North Carolina rule in the interpretation of judgments is that the pleadings, issues and other circumstances of the case must be considered. Coach Co. v. Coach Co., 237 N.C. 697, 76 S.E.2d 47 (1953); Berrier v. Commissioners, 186 N.C. 564, 120 S.E. 328 (1923). . . . And if a judgment is subject to two interpretations, the court will adopt that one which makes it harmonize with the applicable law. Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522 (1952).\nWhite, 72 N.C. App. at 441, 325 S.E.2d at 501. The alleged ambiguity questions whether the policy at issue was included in the class certification. Plaintiffs contend that the absence of a copy of the policy in evidence and the fact that the Kentucky class certification does not specifically define whether plaintiffs\u2019 policy is affected makes the judgment ambiguous. We disagree.\nThe Kentucky order sets out the types of policies affected and certified as part of the class. The Kentucky court was not required to list every member of the class. Evidence in the record shows: (1) the defendant found the affected policies, (2) plaintiffs\u2019 policy was an affected policy, and (3) defendant gave the policy owners, including Freeman, the notice required by the judge presiding over the class action. We find nothing inherently ambiguous about the Kentucky class certification to preclude according the judgment full faith and credit.\nNorth Carolina courts entertain attacks on foreign judgments on the grounds of lack of jurisdiction, fraud, or public policy issues. Courtney v. Courtney, 40 N.C. App. 291, 295-96, 253 S.E.2d 2, 4 (1979). We hold that the Kentucky court had jurisdiction and that plaintiffs produced no evidence showing fraud or contravention of public policy.\nVII. Authentication\nPlaintiffs argue that the Ace Seat Cover judgment was not authenticated pursuant to 28 U.S.C. \u00a7 1738, which governs when judicial proceedings should be given full faith and credit, because it lacks the seal of court, attestation by the clerk, and certificate by the judge. Defendant admits that it did not comply with the requirements of 28 U.S.C. \u00a7 1738, but contends that \u00a7 1738 is not the exclusive manner to authenticate an out-of-state judgment in North Carolina.\nWe agree that 28 U.S.C. \u00a7 1738 is not. the exclusive means to authenticate an out-of-state judgment to be accorded full faith and credit. See Murphy v. Murphy, 581 P.2d 489, 492 (Okla. Ct. App. 1978), Donald v. Jones, 445 F.2d 601, 606 (5th Cir.), cert. denied, 404 U.S. 992, 30 L. Ed. 2d 543 (1971). Rule 44(c) of the N.C. Rules of Civil Procedure states that official records may be authenticated \u201cby any method authorized by any other applicable statute or by the rules of evidence at common law.\u201d Here, the judgment was authenticated through the affidavit of attorney Scott Auby. Home Indemnity Co. v. Hoechst Celanese Corp., 128 N.C. App. 189, 199-200, 494 S.E.2d 774, 781, disc. review denied, 348 N.C. 71-2, 505 S.E.2d 868-70 (1998).\nPlaintiffs argue that defendant did not comply with the Uniform Enforcement of Foreign Judgments Act (\u201cUEFJA\u201d) adopted by North Carolina in N.C.G.S. \u00a7 1C-1701. The UEFJA is also not the exclusive means by which to enforce a foreign judgment and its applicability to the issues at bar is questionable. The UEFJA \u201cprovides one method whereby plaintiffs may seek the enforcement in North Carolina of judgments from other states.\u201d Lust v. Fountain of Life, Inc., 110 N.C. App. 298, 300, 429 S.E.2d 435, 436 (1993) (citing N.C.G.S. \u00a7\u00a7 1C-1701 to -1708 (1991)). The UEFJA applies where a \u201cJudgment Creditor\u201d is attempting to affirmatively enforce a \u201cForeign Judgment\u201d in our state. See N.C.G.S. \u00a7\u00a7 1G-1701 to -1708 (2001). At bar, defendant is not seeking action on the judgment but rests on it as a bar to plaintiffs claims. This assignment of error is overruled.\nVIII Conclusion\nWe hold that the Kentucky judgment is entitled to full faith and credit. Plaintiffs are barred by the language in the release order portion of the judgment from maintaining this action. The trial court\u2019s grant of summary judgment in favor of defendant is affirmed.\nAffirmed.\nJudges MCCULLOUGH and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge" } ], "attorneys": [ "Ball Barden & Bell, P.A., by Stephen L. Barden, III and Thomas R. Bell, Jr., for plaintiffs-appellants.", "Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Stephen J. Grabenstein, for defendant-appellee." ], "corrections": "", "head_matter": "ROBERT A. FREEMAN, III, and STEPHEN L. BARDEN, III, as Trustees of the Kenneth Wilson Trust, and KENNETH WILSON, Plaintiffs v. PACIFIC LIFE INSURANCE COMPANY, Defendant\nNo. COA02-634\n(Filed 18 March 2003)\n1. Constitutional Law\u2014 full faith and credit \u2014 class action\u2014 notice\nA Kentucky judgment was entitled to full faith and credit where the Kentucky court found that the defendant in a class action suit had provided the required notice, even though the plaintiff in this North Carolina action allegedly did not receive actual notice.\n2. Class Actions\u2014 full faith and credit \u2014 every member not listed \u2014 judgment not ambiguous\nA Kentucky judgment in a class action suit against an insurance company was not inherently ambiguous, and was entitled to full faith and credit, where the order did not list every member of the class but set out the types of insurance polices affected and certified as part of the class.\n3. Class Actions\u2014 foreign judgment \u2014 authentication\nA Kentucky class action was properly authenticated through the affidavit of an attorney.\nAppeal by plaintiffs from judgment entered 7 March 2002 by Judge Zoro J. Guice, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 12 February 2003.\nBall Barden & Bell, P.A., by Stephen L. Barden, III and Thomas R. Bell, Jr., for plaintiffs-appellants.\nVan Winkle, Buck, Wall, Starnes and Davis, P.A., by Stephen J. Grabenstein, for defendant-appellee." }, "file_name": "0583-01", "first_page_order": 613, "last_page_order": 620 }