{ "id": 8953853, "name": "JEFFERSON PILOT FINANCIAL INSURANCE COMPANY f/k/a ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA f/k/a JEFFERSON-PILOT PENSION LIFE INSURANCE COMPANY, Plaintiff v. MARSH USA INC. f/k/a J&H MARSH & McLENNAN, INC., Successor to Johnson & Higgins Carolinas, Inc., and HARTFORD FIRE INSURANCE COMPANY, Defendants", "name_abbreviation": "Jefferson Pilot Financial Insurance v. Marsh USA Inc.", "decision_date": "2003-07-15", "docket_number": "No. COA02-1386; No. COA02-1484", "first_page": "43", "last_page": "55", "citations": [ { "type": "official", "cite": "159 N.C. App. 43" } ], "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": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "84 S.E. 1032", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0 }, { "cite": "168 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662047 ], "year": 1915, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0632-01" ] }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180", "parenthetical": "The Court of Appeals is bound by decisions of the Supreme Court" } ], "opinion_index": 0 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118", "parenthetical": "The Court of Appeals is bound by decisions of the Supreme Court" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "543 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "351 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155851, 1155748 ], "year": 2000, "pin_cites": [ { "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0372-01", "/nc/351/0372-02" ] }, { "cite": "522 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "135 N.C. 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App.", "case_ids": [ 11242573 ], "year": 1999, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0672-01" ] }, { "cite": "412 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "330 N.C. 790", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510968 ], "year": 1992, "pin_cites": [ { "page": "793-94" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0790-01" ] }, { "cite": "544 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "\"[A] defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684946, 685109, 684950, 685046, 684894 ], "year": 2000, "pin_cites": [ { "parenthetical": "\"[A] defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0358-01", "/nc/352/0358-02", "/nc/352/0358-03", "/nc/352/0358-05", "/nc/352/0358-04" ] }, { "cite": "530 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "588", "parenthetical": "\"[A] defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078766 ], "year": 2000, "pin_cites": [ { "page": "132", "parenthetical": "\"[A] defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0127-01" ] }, { "cite": "543 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 699", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443518 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0699-01" ] } ], "analysis": { "cardinality": 952, "char_count": 26678, "ocr_confidence": 0.748, "pagerank": { "raw": 5.8073662536290684e-08, "percentile": 0.3616243649726297 }, "sha256": "40a5480317bef4c2e2519129037c21713e516c59e21cfd2c33115441094cf18a", "simhash": "1:9ee4482347081eea", "word_count": 4306 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "JEFFERSON PILOT FINANCIAL INSURANCE COMPANY f/k/a ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA f/k/a JEFFERSON-PILOT PENSION LIFE INSURANCE COMPANY, Plaintiff v. MARSH USA INC. f/k/a J&H MARSH & McLENNAN, INC., Successor to Johnson & Higgins Carolinas, Inc., and HARTFORD FIRE INSURANCE COMPANY, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nI. Background\nHartford Fire Insurance Company (\u201cHartford\u201d) provided Jefferson Pilot Financial Insurance Company (\u201cJP\u201d) with fidelity bond coverage. Hartford issued a Form 25 Financial Institution Bond that covered wrongful acts of JP\u2019s insurance agents for three years, between 27 March 1992 and 27 March 1995. In September 1994, Martin Pallazza (\u201cPallazza\u201d), Hartford\u2019s bond underwriter in charge of the JP account, reviewed JP\u2019s 1993 Annual Report and discovered JP had added over 3,000 new agents to its network and planned for further additions. Pallazza questioned, in a notation on the annual report, whether agent growth affected Hartford\u2019s coverage to JP. Traska testified that Pallazza should have inquired to clarify how the information affected Hartford\u2019s risk. Pallazza testified that he spoke with Barbara Haney of Marsh USA, Inc. (\u201cMarsh\u201d), the insurance broker for JP, on 27 September 1994. No resolution was reached concerning the coverage for the additional agents mentioned in JP\u2019s Annual Report. Pallazza resigned from Hartford in 1994 and Patrick Cummings became the new underwriter for the account. No additional inquiries were made to JP or Marsh about the increase in agents.\nIn January 1995, Hartford contacted Marsh about renewing the bond. Marsh, an independent agent of Hartford, issued binders for Hartford and received a percentage of the collected premium and a contingent commission. Hartford requested Marsh to obtain pertinent information for the renewal from JP. Marsh informed Hartford that most of the information requested was inaccessible at the time due to internal restructuring. Hartford extended the period of the bond\u2019s coverage. Hartford agreed to renew the bond effective 27 March 1995 after Marsh allegedly represented to Hartford that the number of JP insurance agents had not materially changed. Contrary to this alleged representation, the number of JP agents had substantially increased during the term of the original bond.\nOn 6 October 1995, a subsidiary of JP purchased and merged with Alexander Hamilton Life Insurance Company of America for $575 million. After this merger, the number of JP\u2019s insurance agents increased by 6,000. Neither JP nor Marsh informed Hartford of the merger prior to its consummation. On 16 April 1996, Marsh notified Hartford of the merger and acknowledged that JP was unaware the additional agents were not covered. Marsh began to provide Hartford with the additional documentation previously requested.\nOn 6 June 1996, Marsh informed Hartford that it had recently learned that Roger McCall (\u201cMcCall\u201d), an Alexander Hamilton insurance agent, had embezzled a significant amount of funds. In August 1996, JP made an initial claim under the bond for approximately $1,000,000 but specifically outlined only $850,000 in losses it allegedly incurred as a result of McCall\u2019s malfeasance. Hartford denied the claim on the basis that fidelity coverage to Alexander Hamilton\u2019s agents was never provided. JP filed suit against Marsh and Hartford via an amended complaint on 26 August 1998 for (1) breach of contract, (2) declaratory judgment, (3) negligence by Marsh and liability therefor of Marsh and Hartford under a principal/agent theory, and (4) breach of contract by Marsh and liability therefor under a principal/agent theory. Hartford cross-claimed against Marsh for indemnity and contribution. Marsh moved to amend its answer on 19 November 1999 to cross-claim against Hartford for indemnity and contribution. On 6 December 1999, JP moved for summary judgment on its breach of contract and declaratory judgment causes of action, and for judgment of Hartford\u2019s derivative liability under JP\u2019s third and fourth causes of action. Marsh moved for partial summary judgment on 7 December 1999. On 8 December 1999, Hartford moved for summary judgment on all of JP\u2019s claims.\nJudge Catherine C. Eagles heard the motions and issued an order on 19 January 2000 that: (1) denied JP\u2019s motion for summary judgment, (2) granted Hartford\u2019s motion for summary judgment as to JP\u2019s first and second causes of action but denied the motion with respect to JP\u2019s agency claims against Hartford in the third and fourth causes of action, (3) denied Marsh\u2019s motion for partial summary judgment and granted Marsh\u2019s motion for leave to amend its answer. JP appealed the denial of its summary judgment motion, and this Court dismissed JP\u2019s appeal as interlocutory. Alexander Hamilton Life Ins. Co. of Am. v. J&H Marsh & McClennan, Inc., 142 N.C. App. 699, 543 S.E.2d 898 (2001).\nOn 10 September 2001, Hartford moved for summary judgment on Marsh\u2019s cross-claims for indemnification and contribution and on JP\u2019s alternative third claim relating to the negligence of Marsh. Judge James Webb entered an order dated 17 October 2001 which granted Hartford\u2019s motion for summary judgment regarding Marsh\u2019s cross-claim for indemnification, denied Hartford\u2019s motion regarding Marsh\u2019s cross-claim for contribution, and denied Hartford\u2019s motion for summary judgment on JP\u2019s negligence claim.\nOn the eve of the trial, JP and Marsh settled. Neither JP nor Marsh released Hartford. Marsh paid JP $1,450,000 in exchange for JP\u2019s release of its claims against Marsh and assignment to Marsh of all of JP\u2019s claims against Hartford. Marsh dismissed with prejudice the negligence and breach of contract actions. On 27 November 2001, the trial court denied Hartford\u2019s motion to dismiss Marsh\u2019s contribution claim. Hartford attempted to assert its cross-claim for indemnity. The trial court in pre-trial motions informed Hartford that it could not pursue an indemnity claim but could allege it \u201cas a defense, and an issue put to the jury to that effect.\u201d In the course of the trial, the trial court informed Hartford that its claim for indemnity had been extinguished.\nA jury decided (1) whether Marsh was the agent of Hartford, (2) whether Hartford was negligent, (3) whether the settlement amount was reasonable, and (4) the amount, if any, Hartford should pay Marsh. The jury\u2019s verdict form was returned as follows:\n1. Was Marsh the agent of Hartford at the time of the merger transaction between Jefferson-Pilot and Alexander Hamilton?\nANSWER: Yes\n2. Did Hartford contribute by its negligence to the damage to Jefferson-Pilot/Alexander Hamilton/JP Alexander?\nANSWER: No\n3. Was the amount paid by Marsh to Jefferson-Pilot for which it now seeks contribution from Hartford a reasonable amount to settle all of Jefferson-Pilot\u2019s claims?\nANSWER: Yes\n4. What amount of damages, if any, should Hartford be required to pay for Marsh\u2019s settlement with Jefferson-Pilot?\nANSWER: $150.000.00\nOn 8 January 2002, final judgment was entered against Hartford in the amount of $150,000. Hartford appealed. Marsh filed and was denied a motion to alter or amend the judgment or in the alternative, for a judgment notwithstanding the verdict or new trial. On 7 February 2002, Marsh cross-appealed from the final judgment. On 11 June 2002, Marsh\u2019s post-trial motion was heard and denied by order filed 2 July 2002. Marsh appealed. All issues from both appeals have been consolidated per stipulation of counsel and order of this Court.\nII. Issues\nThe issues are (1) whether Hartford should have been allowed to prove its cross-claim of indemnity against Marsh, (2) whether the issue of agency was properly submitted to the jury, (3) whether Marsh failed to make aprima facie showing for contribution under N.C.G.S. \u00a7 IB-1, (4) whether the trial court erred by entering judgment on the jury\u2019s verdict regarding the amount of contribution after the jury found the settlement to be reasonable, (5) whether the trial court erred in refusing to instruct the jury on Hartford\u2019s negligence and erroneously finding Hartford was not negligent by failing to issue insurance coverage for JP, (6) whether the trial court erred in admitting evidence of Marsh\u2019s negligence when Marsh had admitted its negligence, and (7) whether the trial court erred by granting Hartford summary judgment on JP\u2019s breach of contract and declaratory judgment causes of action. The issue in appeal 02-1484 is whether the trial court abused its discretion in denying Marsh\u2019s motion to alter or amend the judgment or in the alternative for a judgment notwithstanding the verdict or new trial if the judgment entered on the jury\u2019s verdict of contribution due to Marsh was error as a matter of law.\nIII. Hartford\u2019s Indemnity Claim\nHartford contends that the trial court erred by not allowing it to proceed on its indemnity cross-claim. Hartford requested to proceed on this claim during pre-trial motions. The trial court denied the motion but allowed Hartford the option to argue indemnity defensively and have \u201can issue put to the jury to that effect.\u201d Marsh argues this issue was not preserved for appeal and asserts that Hartford made no objection to the trial court\u2019s failure to submit the issue to the jury.\nThe record shows that the trial court dismissed Hartford\u2019s claim of indemnity during pre-trial motions and reiterated its ruling later in the case.\nMr. Owens: ... As I understand Hartford\u2019s positions, it contends presently that it has a crossclaim for indemnity against Marsh. I believe that claim is extinguished as a matter of law, Your Honor, simply because there is no pending contract claim against Hartford for\u2014\nThe Court: I think I ruled on that before the trial began.\nMr. Owens: Well, I remember discussing it. I don\u2019t know whether it\u2019s been dismissed. . . .\nThe Court: I ruled at the beginning of the trial that that claim was extinguished.\nMr. Owens: Okay.\nMr. Faison: Well\u2014\nThe Court: That was my ruling at the beginning. I\u2019ve already ruled on that.\nMr. Faison: Well, I understand, Judge, but you ruled at the beginning of the trial they weren\u2019t going into \u2014 they weren\u2019t going to put on 2.8 million in damages and that they weren\u2019t going to get into the subsequent events, both of which they\u2019ve done. And so, if I may just get you to revisit it just a moment. The indemnity claim is\u2014\nThe Court: I already ruled on that matter.\nMr. Faison: Yes, sir.\nThe Court: All right, then.\nThis issue is more properly reviewed as a dismissal of the claim to which Hartford did not object, make an offer of proof, or request a jury instruction. Hartford did not make an objection of record to the trial court\u2019s dismissal of the \u201cclaim\u201d during the pre-trial motions or during trial. We hold the error was not properly preserved and is not reviewable by our Court. See State v. Farmer, 138 N.C. App. 127, 132, 530 S.E.2d 584, 588, disc. rev. denied, 352 N.C. 358, 544 S.E.2d 550 (2000) (\u201c[A] defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\u201d). This assignment of error is overruled.\nIV. Agency Issue\nHartford assigns error to the trial court\u2019s submission of the issue of Marsh\u2019s agency with Hartford to the jury. Hartford contends that agency was not necessary to settle controversies arising in Marsh\u2019s claim of contribution, and that Marsh, as a negligent defendant, cannot maintain a contribution claim against Hartford, on a principal/agent relationship theory.\nThe trial court submitted four issues and instructed the jury that if they found Hartford to be negligent or Marsh to be the agent of Hartford, they would then determine the amount Hartford should contribute toward Marsh\u2019s settlement. Hartford contends that whether Marsh was an agent of Hartford was irrelevant to Marsh\u2019s claim of contribution because agency is not an element of negligence and JP\u2019s claims of derivative liability against Hartford were dismissed by Marsh.\nWe disagree. A determination of agency was properly submitted to establish Marsh\u2019s contribution claim. The Uniform Contribution Among Tort-feasors Act (\u201cUCATA\u201d) creates a contribution right where \u201ctwo or more persons become jointly or severally liable in tort for the same injury.\u201d N.C.G.S. \u00a7 1B-I(a) (2001). In Yates v. New South Pizza, Ltd., 330 N.C. 790, 793-94, 412 S.E.2d 666, 669 (1992), our Supreme Court held that the UCATA expanded the definition of \u201ctort-feasor\u201d to include a vicariously liable master in the master-servant context. \u201cThus, the release of a servant did not release a vicariously liable master, unless the terms of the release provided for release of the master.\u201d Wrenn v. Maria Parham Hosp., Inc., 135 N.C. App. 672, 679, 522 S.E.2d 789, 793 (1999), disc. rev. denied, cert. denied, 351 N.C. 372, 543 S.E.2d 149-50 (2000) (emphasis in original). Hartford urges this Court to not follow our Supreme Court\u2019s decision in Yates and contends that the decision was wrongly decided. We are bound by the rationale and holding of Yates. Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993) (The Court of Appeals is bound by decisions of the Supreme Court).\nHartford also argues that the facts of Yates are distinguishable from those at bar. The Yates court allowed a plaintiff to recover from the master/employer after plaintiff settled with the servant/employee. The defendants in Yates shared a master-servant relationship; whereas Hartford and Marsh share a principal-agent relationship. The procedural context at bar is where one defendant seeks contribution from another defendant, whereas in Yates, plaintiff asserted contribution against a co-defendant.\nWhile the procedural context is different, we are bound by Yates\u2019 definition of a \u201ctort-feasor\u201d under the UCATA. Hartford\u2019s lack of direct negligence, as found by the jury, is immaterial. The jury found that Marsh acted as an agent of Hartford. The terms of the settlement between JP and Marsh did not extinguish or release the claims of JP against Hartford. Those claims were assigned to Marsh as a condition of and as consideration for the settlement. Marsh dismissed the remaining claims of negligence and breach of contract against Hartford through its relationship with Marsh, but retained its claim to contribution and JP\u2019s claim of breach of contract against Hartford.\nHartford contends that Marsh\u2019s dismissal of the claims against Hartford premised on vicarious liability prohibits Marsh from pursuing contribution. This assertion contradicts the UCATA which expressly requires that tort cross-claims against the other tort-feasor must be extinguished before contribution. \u201cA tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death has not been extinguished nor in respect to any amount paid in a settlement which is in excess of what was reasonable.\u201d N.C.G.S. \u00a7 IB-1 (d) (2001). By dismissing all of the claims relevant to tort liability, Marsh extinguished the claims required by the UCATA. Summary judgment extinguished the remaining contract and declaratory judgment claims before trial. This assignment of error is overruled.\nV. Contribution Claim\nHartford argues that Marsh failed to make a prima facie showing of a contribution claim under the UCATA because Hartford owed no duty to JP. Marsh contends that Hartford was independently liable to JP for breach of its common law duty to monitor the business of its insureds. No specific instruction was given to the jury regarding the law on such duty, but Marsh\u2019s contention was expressed. Marsh cross-appeals the trial court\u2019s failure to give such instruction. The jury found Hartford vicariously liable as principal for Marsh\u2019s negligence.\nHartford contends that the record is devoid of any agreement by Hartford to allow Marsh to act as its agent, and the trial court erred by submitting the issue of agency to the jury. The actions of an agent allow for an inference of agency. See Powell v. Lumber Co., 168 N.C. 632, 636, 84 S.E. 1032, 1033 (1915). The record indicates that Marsh received commissions from Hartford and issued title binders and other documents on Hartford\u2019s behalf. These actions create, at minimum, apparent authority for Marsh to act as Hartford\u2019s agent and are sufficient evidence to withstand Hartford\u2019s motion for summary judgment or directed verdict. This assignment of error is overruled.\nVI. Entry of Judgment on Contribution Amount\nAfter the jury returned a verdict finding Marsh to be an agent of Hartford, and finding the settlement amount Marsh paid to JP to be reasonable, the jury awarded Marsh $150,000 in contribution from Hartford. Marsh contends that an award of contribution under the UCATA is statutory and that a joint tortfeasor must contribute its pro rata share of the liability, regardless of the relative degrees of fault. A pro rata share of the settlement amount of $1,450,000 would be $725,000. The trial court entered judgment upon a jury verdict award of $150,000. Marsh argues that the erroneous amount resulted from the trial court\u2019s inconsistent and incorrect re-instructions on the issues.\nThe jury was initially instructed that if they found the settlement amount Marsh paid to JP to be reasonable, Hartford\u2019s amount of contribution should be $725,000. Both parties agreed during oral arguments that this was an accurate statement of the law. The jury entered the amount Hartford should contribute to Marsh after it was re-instructed by the trial court.\nThe UCATA provides that where two or more persons become jointly and severally liable for the same injury, the injured party may recover his or her entire damages against any one of the joint tort-feasors, but any of the joint tortfeasors who pays more than his or her pro rata share of the damages has a right to contribution from the others for any amount paid in excess of the pro rata share. N.C.G.S. \u00a7 1B-I(b) (2001). The pro rata share is computed by dividing the total damage award by the number of jointly and severally liable tortfea-sors, without considering a tortfeasor\u2019s relative degree of fault. See N.C.G.S. \u00a7 IB-2 (2001); David A. Logan and Wayne A. Logan, North Carolina Torts, \u00a7 8.20[7] (1996); Charles E. Daye and Mark W. Morris, North Carolina Law of Torts, \u00a7 22.62 (1999). \u201cThe judgment of the court in determining the liability of the several defendants to the claimant for the same injury or wrongful death shall be binding as among such defendants in determining their right to contribution.\u201d N.C.G.S. \u00a7 1B-3(f) (2001).\nThe jury was re-instructed that after answering whether or not the JP-Marsh settlement was reasonable, they were to find whether or not Marsh was entitled to contribution from Hartford and the proper amount to be contributed. Marsh\u2019s trial counsel did not formally object to this re-instruction of the jury but invited the trial court to re-instruct again. The re-instructions gave the jury the latitude to determine the amount of the contribution award instead of mandating a pro rata share if the settlement amount was found reasonable.\nThe trial court erred in giving the incorrect re-instruction to the jury as a matter of law. Questions of law are reviewable de novo. In re Greens of Pine Glen, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). We do not find Marsh\u2019s failure to more formally object to be fatal where the verdict returned after re-instruction is not allowed under applicable law. The trial court erred in entering judgment upon a verdict where the amount of contribution was mandated by the UCATA and not within the jury\u2019s discretion. This assignment of error is allowed.\nVII. Failure to Instruct on Negligence\nMarsh assigns error to the trial court\u2019s failure to instruct on the duty of an insurer to monitor the business of its insured. The trial court submitted the issue of Hartford\u2019s negligence to the jury, but did not instruct on any specific duty of an insurer. The jury found that Marsh was an agent of Hartford and Hartford was liable for JP\u2019s injury as a principal. We found no error in the trial and the jury\u2019s verdict in this respect. We do not address this assignment of error.\nVIH. Admission of Evidence of Marsh\u2019s Negligence\nMarsh argues that the trial court erred in allowing Hartford\u2019s trial counsel to question JP\u2019s representative about the failings of Marsh after Marsh had already admitted its negligence. While the relevancy of this evidence to the issues at trial may be questionable, it does not rise to the level of prejudicial error. Marsh has failed to show that but for this error, the jury\u2019s verdict would have changed. This assignment of error is overruled.\nIX. Denial of JP\u2019s Motion for Summary Judgment.\nMarsh, as assignee of JP\u2019s claims, contends that the trial court erred in granting summary judgment for Hartford on JP\u2019s contract and declaratory judgment claims. We disagree.\nExpress language in the bond requires that if the insured merges with another entity, the insured\nshall not have such coverage as is afforded under this bond for loss which (a) has occurred in or will occur in offices or premises, or (b) has been caused or will be caused by an employee or employees of such institution, or (c) has arisen or will arise out of the assets or liabilities acquired by the Insured as a result of such consolidation ... or acquisition of assets or liabilities unless the Insured shall\n(I) give the Underwriter written notice of the proposed consolidation, merger or purchase or acquisition of assets or liabilities prior to the proposed effective date of such action and\n(ii) obtain the written consent of the Underwriter to extend the coverage provided by this bond to such additional offices or premises, Employees and other exposures, or\n(iii) upon obtaining such consent, pay to the Underwriter an additional premium.\nMarsh contends that the merger clause only applies to certain insuring agreements and does not apply to riders for general agents and soliciting agents. All specific riders amend and attach to the original fidelity bond and become incorporated into the original bond. The original bond required notice to be provided of the merger and consent to be given by Hartford in order to extend insurance coverage to the agents of the acquired entity. Neither requirement occurred before the merger was completed. This assignment of error is overruled.\nX. Conclusion\nWe are mindful of the anomalous result of these appeals. This result is mandated by the application of the plain language of the UCATA and the precedent set forth in Yates. We are concerned with a party being forced to make contribution to a settlement agreement where that party did not have a voice in the settlement amount.\nHartford has no direct liability to JP or, through its assignment, to Marsh. The jury found Hartford\u2019s liability to be solely derivative of Marsh\u2019s negligence. The amount of Hartford\u2019s contribution is set by precedent and statute. Summary judgment in favor of Hartford on the bond is affirmed. We find no error in the trial. The damage award is vacated and remanded to the trial court with instructions to enter judgment for Marsh in the amount of $725,000 as is statutorily required by N.C.G.S. \u00a7 1B-I(b).\nAs we found error in the trial court\u2019s entry of judgment, Marsh\u2019s consolidated appeal from the denial of its motion to alter or amend the judgment or in the alternative, for a judgment notwithstanding the verdict, or a new trial is dismissed as moot. Both parties are to equally share the costs of the appeals and are solely responsible for any other costs or fees.\nNo error in trial; Judgment vacated and remanded with instructions.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Kennedy Covington Lobdell & Hickman, LLP, by Raymond E. Owens, Jr., Russell F. Sizemore and Susan Ballantine Molony, for defendant Marsh USA.", "Faison & Gillespie, by 0. William Faison, Michael R. Ortiz and John-Paul Schick, for defendant Hartford Fire Insurance Company." ], "corrections": "", "head_matter": "JEFFERSON PILOT FINANCIAL INSURANCE COMPANY f/k/a ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA f/k/a JEFFERSON-PILOT PENSION LIFE INSURANCE COMPANY, Plaintiff v. MARSH USA INC. f/k/a J&H MARSH & McLENNAN, INC., Successor to Johnson & Higgins Carolinas, Inc., and HARTFORD FIRE INSURANCE COMPANY, Defendants\nNo. COA02-1386\nNo. COA02-1484\n(Filed 15 July 2003)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nAn issue was not preserved for appellate review where there was no objection.\n2. Contribution\u2014 agency \u2014 lack of direct negligence \u2014 claims extinguished\nA determination of agency was properly submitted to the jury to establish a contribution claim by an insurance broker (Marsh) against the company issuing a fidelity bond (Hartford).\n3. Contribution\u2014 prima facie showing \u2014 agency\nThere was a prima facie showing of a contribution claim between an insurance broker (Marsh) and the company issuing a fidelity bond (Hartford). Marsh\u2019s receipt of commissions from Hartford and issuance of title binders and other documents on Hartford\u2019s behalf create an apparent authority for Marsh to act as Hartford\u2019s agent and are sufficient to withstand Hartford\u2019s motion for summary judgment or directed verdict on the issue of agency.\n4. Contribution; Appeal and Error\u2014 amount of contribution mandated \u2014 verdict outside applicable law \u2014 no formal objection\nThe trial court erred in a contribution case by entering judgment upon a jury\u2019s determination of the amount of contribution when that amount was mandated by the Uniform Contribution Among Tort-Feasors Act (UCATA). A failure to formally object to the instruction was not fatal because the verdict was not allowed under applicable law.\n5. Insurance\u2014 duty of insurer to monitor insured \u2014 instruction on general negligence\nAn assignment of error to the trial court\u2019s failure to instruct a jury on the duty of an insurer to monitor the business of the insured was not addressed where the trial court submitted the issue of the insurer\u2019s negligence without an instruction on any specific duty and the jury found the insurer liable as the principal of a broker.\n6. Evidence\u2014 questions about irrelevant evidence \u2014 not prejudicial\nThe allowance of questions of questionable relevancy did not rise to the level of prejudicial error in an action to determine the liability of an insurer through the actions of a broker.\n7. Insurance\u2014 fidelity bond \u2014 extension of coverage by company expansion \u2014 notice and consent required\nThe trial court did not err by granting summary judgment for an insurer on contract and declaratory judgment claims arising from the fidelity bonds issued to cover insurance agents at a company which expanded the number of agents.\nAppeals by defendants from orders and judgments entered 19 January 2000 by Judge Catherine C. Eagles, 17 October 2001 by Judge James M. Webb, and 21 December 2001 and 3 July 2002 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 5 June 2003.\nKennedy Covington Lobdell & Hickman, LLP, by Raymond E. Owens, Jr., Russell F. Sizemore and Susan Ballantine Molony, for defendant Marsh USA.\nFaison & Gillespie, by 0. William Faison, Michael R. Ortiz and John-Paul Schick, for defendant Hartford Fire Insurance Company." }, "file_name": "0043-01", "first_page_order": 73, "last_page_order": 85 }