{ "id": 8212602, "name": "STATE AUTO INSURANCE COMPANY AS SUBROGEE OF C. JAMES LELAND BANTZ AND THE ESTATE OF JAMES LELAND BANTZ BY AND THROUGH HIS ADMINISTRATOR THERESA L. BANTZ, Plaintiff v. CHRISTIAN EARL BLIND, Defendant", "name_abbreviation": "State Auto Insurance v. Blind", "decision_date": "2007-09-04", "docket_number": "No. COA06-1530", "first_page": "707", "last_page": "714", "citations": [ { "type": "official", "cite": "185 N.C. App. 707" } ], "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": "623 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634571, 12634572, 12634573 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0263-01", "/se2d/623/0263-02", "/se2d/623/0263-03" ] }, { "cite": "614 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633132 ], "year": 2005, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0328-01" ] }, { "cite": "628 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635635 ], "weight": 12, "year": 2006, "pin_cites": [ { "page": "831" }, { "page": "827-28" }, { "page": "826-27" }, { "page": "827" }, { "page": "831" }, { "page": "831-32" }, { "page": "831", "parenthetical": "emphasis added" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0824-01" ] }, { "cite": "198 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560354, 8560327, 8560302, 8560280, 8560378 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0752-04", "/nc/283/0752-03", "/nc/283/0752-02", "/nc/283/0752-01", "/nc/283/0752-05" ] }, { "cite": "197 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551740 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0513-01" ] }, { "cite": "553 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138349, 138447, 138328, 138329, 138427 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0069-01", "/nc/354/0069-03", "/nc/354/0069-05", "/nc/354/0069-04", "/nc/354/0069-02" ] }, { "cite": "547 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "79" }, { "page": "79" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434232 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0244-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(16)", "parenthetical": "establishing a three-year statute of limitations for personal injury claims \"iulnless otherwise provided bv statute\"" } ], "opinion_index": 0 }, { "cite": "234 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1977, "pin_cites": [ { "page": "5" }, { "page": "3" }, { "page": "5", "parenthetical": "explaining that \"any common law claim which is now encompassed by the wrongful death statute must be asserted under that statute\"" }, { "page": "5" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553371 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "712" }, { "page": "712" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0708-01" ] }, { "cite": "353 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "271" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168782 ], "year": 1987, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0501-01" ] }, { "cite": "360 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789190, 3790698, 3793132, 3793873, 3791767, 3790329, 3790458 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0078-06", "/nc/360/0078-04", "/nc/360/0078-07", "/nc/360/0078-02", "/nc/360/0078-03", "/nc/360/0078-05", "/nc/360/0078-01" ] }, { "cite": "171 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8434676 ], "year": 2005, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0058-01" ] }, { "cite": "424 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"[A] motion is treated according to its substance and not its label.\"" } ], "opinion_index": 0 }, { "cite": "332 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506793, 2504075, 2504116, 2505493, 2506648 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"[A] motion is treated according to its substance and not its label.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0483-01", "/nc/332/0483-05", "/nc/332/0483-03", "/nc/332/0483-02", "/nc/332/0483-04" ] }, { "cite": "419 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "159", "parenthetical": "\"[A] motion is treated according to its substance and not its label.\"" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313413 ], "year": 1992, "pin_cites": [ { "page": "578", "parenthetical": "\"[A] motion is treated according to its substance and not its label.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0574-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(4)" }, { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "642 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2007, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "361 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744803, 3740047, 3743632, 3746193, 3741711, 3743098, 3742972, 3745727 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0218-07", "/nc/361/0218-04", "/nc/361/0218-05", "/nc/361/0218-03", "/nc/361/0218-01", "/nc/361/0218-08", "/nc/361/0218-06", "/nc/361/0218-02" ] }, { "cite": "177 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301283 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "333" }, { "page": "339" }, { "page": "340-41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0330-01" ] } ], "analysis": { "cardinality": 670, "char_count": 16072, "ocr_confidence": 0.752, "pagerank": { "raw": 4.495196967382381e-08, "percentile": 0.2818513743465353 }, "sha256": "422d4588b897905812bafbdfb269b3c8f420a11a387dcc0cbcbe67f6eef79779", "simhash": "1:0b4a3ff425bf0614", "word_count": 2590 }, "last_updated": "2023-07-14T20:04:26.584781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BRYANT concur." ], "parties": [ "STATE AUTO INSURANCE COMPANY AS SUBROGEE OF C. JAMES LELAND BANTZ AND THE ESTATE OF JAMES LELAND BANTZ BY AND THROUGH HIS ADMINISTRATOR THERESA L. BANTZ, Plaintiff v. CHRISTIAN EARL BLIND, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff State Auto Insurance Co. appeals the trial court order awarding summary judgment to defendant Christian Earl Blind in a negligence action filed pursuant to North Carolina\u2019s survivorship statute, N.C. Gen. Stat. \u00a7 28A-18-1 (2005). Section 28A-18-1 provides that claims in favor of or against a decedent at the time of his death \u201cshall survive to and against the personal representative or collector of his estate.\u201d N.C. Gen. Stat. \u00a7 28A-18-1 (2005). In Alston v. Britthaven, Inc., this Court determined that damages arising from a decedent\u2019s pain and suffering- and medical expenses that are caused by the negligent act of a defendant may be recovered under section 28A-18-1. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), disc. rev. denied, 361 N.C. 218, 642 S.E.2d 242 (2007). This Court\u2019s holding in Alston was dependent upon pleadings and evidence which suggested two possible causes of the decedent\u2019s death: one cause of death which would be considered a \u201cwrongful act\u201d or \u201cneglect\u201d under North Carolina\u2019s wrongful death statute, N.C. Gen. Stat. \u00a7 28A-18-2 (2005), and one natural cause of death. Id. at 340, 628 S.E.2d at 831. The dispositive question before this Court is whether plaintiff may sustain a negligence action filed pursuant to section 28A-18-1 when the pleadings allege that a single negligent act of defendant caused decedent James Leland Bantz\u2019s injuries and those injuries unquestionably resulted in Bantz\u2019s death.\nOn 25 May 2002, defendant collided with Bantz in a motor vehicle accident at an intersection on North Carolina Highway 28 near Franklin in Macon County, North Carolina. At that time, defendant was making a left turn from the northbound lane of Highway 28 in a 1988 Honda and Bantz was driving a Harley-Davidson motorcycle in the southbound lane of Highway 28. On 18 March 2005, plaintiff filed suit in Superior Court, Polk County alleging the following additional facts:\n7. That prior to initiating his turn, defendant observed James Bantz approaching on his motorcycle.\n8. That James Bantz applied his brakes but was unable to stop his motorcycle before colliding with the vehicle driven by defendant.\n9. That prior to collision, James Bantz\u2019s motorcycle left a skid mark of 35 feet, 1 inch.\n10. That subsequent to the collision, James Bantz was thrown from his motorcycle, coming to rest approximately 36 feet from the point of impact.\n11. That as a result of the collision, James Bantz suffered massive trauma to his face and body.\n12. That James Bantz was pronounced dead at the scene by emergency personnel. His body was transported to Angel Medical Center in Franklin, North Carolina where he was pronounced dead on arrival.\n13. That James Bantz\u2019s death was directly and proximately caused by the collision with defendant\u2019s vehicle.\nPlaintiff further alleged that defendant operated his vehicle in a negligent manner and that defendant\u2019s negligence was the \u201csole and proximate cause of the collision.\u201d\nBased on these allegations, plaintiff brought two claims. In its first claim, entitled \u201cWrongful Death Action,\u201d plaintiff sought \u201ccompensatory damages for wrongful death\u201d pursuant to N.C. Gen. Stat. \u00a7 28A-18-2 (2005). In its second claim, entitled \u201cSurvival Action,\u201d plaintiff sought \u201crecovery at common law for [Bantz\u2019s] pain and suffering, as well as medical expenses incurred.\u201d Defendant answered, in part, that plaintiff\u2019s wrongful death claim was barred by expiration of the two-year statute of limitations set forth in N.C. Gen. Stat. \u00a7 1-53(4) (2005).\nPlaintiff voluntarily dismissed its claim for wrongful death with prejudice pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a) (2005). Thereafter, defendant moved for summary judgment, alleging that \u201c[p]laintiff filed a wrongful death action after the two year statute of limitations and . . . has forwarded no evidence that would forecast this matter should move forward under any other theory of recovery.\u201d Defendant argued that plaintiff\u2019s complaint, on its face, shows that Bantz did not experience compensable \u201cpain and suffering\u201d or incur \u201cmedical expenses\u201d because Bantz, who sustained \u201cmassive trauma to his face and body,\u201d was pronounced dead by emergency medical personnel at the accident scene. Defendant did not submit affidavits or other documentary evidence in support of its motion for summary judgment but based its motion entirely on the allegations in plaintiff\u2019s complaint. Similarly, plaintiff presented no evidence and submitted no affidavits at the summary judgment hearing. Plaintiff argued that it properly pled its survivorship claim separately from its claim for the decedent\u2019s wrongful death.\nJudge Zoro J. Guice, Jr. heard defendant\u2019s motion on 17 July 2006 in Superior Court, Polk County. On 11 August 2006, Judge Guice granted defendant\u2019s motion. Plaintiff appealed.\nBecause defendant based his argument solely on the pleadings and submitted no affidavits or documentary evidence in support of his position, defendant\u2019s motion is properly classified as a motion for judgment on the pleadings pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c). See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c) (2005) (explaining \u201c[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment\u201d); In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992) (\u201c[A] motion is treated according to its substance and not its label.\u201d).\nThis Court reviews the trial court\u2019s award of judgment on the pleadings de novo. Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 334, disc. rev. denied, 360 N.C. 78, 623 S.E.2d 263 (2005). To prevail on a motion for judgment on the pleadings, the moving party must show that he is entitled to judgment as a matter of law, even when all allegations set forth in the complaint are taken as true. De Torre v. Shell Oil Co., 84 N.C. App. 501, 504, 353 S.E.2d 269, 271 (1987).\nN.C. Gen. Stat. \u00a7 28A-18-l(a) provides that \u201c[u]pon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as provided in subsection (b) hereof, shall survive to and against the personal representative or collector of his estate.\u201d Claims filed pursuant to N.C. Gen. Stat. \u00a7 28A-18-l(a) are generally known as \u201csurvivorship actions.\u201d\nN.C. Gen. Stat. \u00a7 28A-18-2(a) provides that\n[w]hen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages.\n\u201cDamages recoverable for death by wrongful act include ... (1) jejxpenses for care, treatment and hospitalization incident to the injury resulting in death\u201d and \u201c(2) [compensation for pain and suffering of the decedent.\u201d N.C. Gen. Stat. \u00a7 28A-18-2(b). Claims filed pursuant to N.C. Gen. Stat. \u00a7 28A-18-2(a) are generally known as \u201cwrongful death actions.\u201d\n\u201c[A]ny common law claim which is now encompassed by the wrongful death statute must be asserted under that statute.\u201d Christenbury v. Hedrick, 32 N.C. App. 708, 712, 234 S.E.2d 3, 5 (1977). This means that when \u201cthe elements of damage which [a] plaintiff seeks to recover\u201d are recoverable under N.C. Gen. Stat. \u00a7 28A-18-2(b), a wrongful death action is the only action that the plaintiff may sustain to recover those damages. Id. (dismissing the plaintiffs common law negligence action after determining that \u201cthe elements of damage which [a] plaintiff seeks to recover\u201d are \u201cencompassed by\u201d N.C. Gen. Stat. \u00a7 28A-18-2(b)). These \u201celements of damage\u201d include the pain and suffering of a decedent and medical expenses incurred by a decedent. Id. at 703, 234 S.E.2d at 3; N.C. Gen. Stat. \u00a7 28A-18-2(b). Here, plaintiff filed a, common law negligence action pursuant to North Carolina\u2019s survivorship statute, seeking recovery for Bantz\u2019s pain and suffering and medical expenses.\nThis Court has previously considered whether a plaintiff may plead a survivorship claim as an alternative to a wrongful death claim \u201cwhere (1) the same injuries are the basis for both the survivorship and wrongful death claims and (2) a jury might find the defendant\u2019s negligence did not result in the decedent\u2019s death but did result in his injuries prior .to death.\u201d Alston, 177 N.C. App. at 333, 628 S.E.2d at 827-28. In Alston, the plaintiff\u2019s claims for survivorship and wrongful death arose from alleged nursing home neglect, which caused the decedent to suffer multiple bed sores. Id. at 331-32, 628 S.E.2d at 826-27. The plaintiff alleged that septicemia resulting from the bed sores caused the decedent\u2019s death and sought recovery for the decedent\u2019s pain and suffering and medical expenses under both theories. Id. at 332, 628 S.E.2d at 827. The defendant answered that Alzheimer\u2019s disease caused the decedent\u2019s death. Id.\nThis Court held that \u201cwrongful death and survivorship claims may be brought as alternative claims for the same negligent acts.\u201d Alston, 177 N.C. App. at 339, 628 S.E.2d at 831. In so holding, the Court reasoned that the plaintiff could prevail only on its survivor-ship claim if the jury found that the defendant\u2019s negligence caused the decedent\u2019s bed sores but that the decedent ultimately died of another cause (Alzheimer\u2019s disease). Id. Correspondingly, the plaintiff could prevail on the wrongful death claim if the jury found that the defendant\u2019s negligence caused both the decedent\u2019s pain and suffering and the decedent\u2019s death. Id. The Court\u2019s holding ensured that the plaintiff was not \u201cprevented from even a single recovery\u201d for the decedent\u2019s pain and suffering and medical expenses by permitting the plaintiff to recover in survivorship if his wrongful death claim failed. Id. at 340, 628 S.E.2d at 831-32.\nHowever, the Court emphasized in Alston that\nIt is vital to distinguish \u00a1Alston! from those where no alternate explanation exists as to the cause of death. In such cases, pursuant to the 1969 statutory changes, the survivorship claims included in the wrongful death statute, which are pain and suffering, medical costs, and punitive damages, may be pursued as part of a wrongful death action.\nId. at 340, 628 S.E.2d at 831 (emphasis added); see also Christenbury, 32 N.C. App. at 712, 234 S.E.2d at 5 (explaining that \u201cany common law claim which is now encompassed by the wrongful death statute must be \u00e1sserted under that statute\u201d). Here, the facts alleged by plaintiff, when deemed admitted, establish that Bantz died at the accident scene of fatal injuries sustained during the collision. These injuries are the basis for both plaintiff\u2019s survivorship and wrongful death claims; thus, plaintiff seeks to recover damages for its \u201cSurvival Action,\u201d that are identical to damages plaintiff could have recovered in its \u201cWrongful Death Action,\u201d if plaintiff had filed its complaint in a timely manner.\nApplying Christenbury and Alston, we hold that when a single negligent act of the defendant causes a decedent\u2019s injuries and those injuries unquestionably result in the decedent\u2019s death, the plaintiff\u2019s remedy for the decedent\u2019s pain and suffering and medical expenses lies only in a wrongful death claim. Such claim is \u201cencompassed by the wrongful death statute\u201d and \u201cmust be asserted under that statute.\u201d Christenbury, 32 N.C. App. at 712, 234 S.E.2d at 5. To hold otherwise would allow plaintiffs to circumvent the two-year statute of limitations for wrongful death actions set forth in N.C. Gen. Stat. \u00a7 1-53(4) (2005) by waiting an additional year before filing the same claim, titled as a \u201csurvivorship\u201d claim. See N.C. Gen. Stat. \u00a7 1-52(16) (2005) (establishing a three-year statute of limitations for personal injury claims \u201ciulnless otherwise provided bv statute\u201d) (emphasis added).\nWe recognize that the entity entitled to recover damages awarded in a survivorship action is different from the individuals entitled to recover damages awarded in a wrongful death action. The judgment entered in a survivorship action is an asset of the decedent\u2019s estate and is subject to claims against the estate. N.C. Gen. Stat. \u00a7 28A-18-1; In re Estate of Parrish, 143 N.C. App. 244, 253, 547 S.E.2d 74, 79, disc. review denied, 354 N.C. 69, 553 S.E.2d 201 (2001). However, recovery in a wrongful death action is distributed to the decedent\u2019s survivors in accordance with North Carolina\u2019s intestate succession statute and is not subject to claims against the decedent\u2019s estate. N.C. Gen. Stat. \u00a7 28A-18-2; In re Estate of Parrish, 143 N.C. App. at 253, 547 S.E.2d at 79. This Court has consistently recognized the distinction described above and applied the language of each statute as written by the North Carolina General Assembly. See Forsyth County v. Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, cert. denied, 283 N.C. 752, 198 S.E.2d 722 (1973) (reasoning that \u201citems of damage which might conceivably have been set out in a claim for personal injuries prior to death are now includable [sic] in an action for damages for death by wrongful act\u201d and that a creditor of the decedent\u2019s estate could not collect its debt from funds recovered in the wrongful death action). Accordingly, this distinction does not affect our analysis in the case sub judice.\nFor the reasons stated above, the trial court did not err by granting defendant\u2019s \u201cMotion for Summary Judgment.\u201d Accordingly, the order entered 11 August 2006 in Superior Court, Polk County by Judge Zoro J. Guice, Jr. is affirmed.\nAFFIRMED.\nJudges MCCULLOUGH and BRYANT concur.\n. In so holding, this Court noted that the plaintiff was not entitled to double recovery for a single injury and stated:\nThe submission of separate issues ... does not alone avert the problem of double recovery. The first issue submitted to the jury should be whether the defendant\u2019s negligence or wrongful act caused the decedent\u2019s death. If the jury answers this question in the affirmative, it can then determine the amount of damages to which plaintiff is entitled for that death, including, where appropriate, those listed in the wrongful death statute for medical costs, pain and suffering, and punitive damages. The pattern jury instructions for wrongful death address each of these damage issues. If the jury answers the first question in the negative, however, only then should it turn to the question of whether the defendant\u2019s negligence or wrongful act caused the decedent\u2019s pre-death injuries. If it answers this second question in the affirmative, it can then consider the issue of damages for these injuries, and the trial court should instruct the jury accordingly.\nAlston, 177 N.C. App. at 340-41, 628 S.E.2d at 832.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Teague Campbell Dennis & Gorham, L.L.P. by Michael D. Moore for plaintiff-appellant.", "Robinson Elliott & Smith by Kevin D. Elliott for defendant-appellee." ], "corrections": "", "head_matter": "STATE AUTO INSURANCE COMPANY AS SUBROGEE OF C. JAMES LELAND BANTZ AND THE ESTATE OF JAMES LELAND BANTZ BY AND THROUGH HIS ADMINISTRATOR THERESA L. BANTZ, Plaintiff v. CHRISTIAN EARL BLIND, Defendant\nNo. COA06-1530\n(Filed 4 September 2007)\nWrongful Death\u2014 motorcycle accident \u2014 not survivorship action\nWhen a single negligent act of the defendant causes a decedent\u2019s injuries and those injuries unquestionably result in the decedent\u2019s death, the plaintiff\u2019s remedy for the decedent\u2019s pain and suffering and medical expenses lies only in a wrongful death statute and must be asserted under that statute. Recovery is distributed in accordance with the intestate succession statute and is not subject to claims against the estate; otherwise, the two-year statute of limitations for wrongful death actions could be circumvented.\nAppeal by plaintiff from order entered 11 August 2006 by Judge Zoro J. Guice, Jr. in Superior Court, Polk County. Heard in the Court of Appeals 24 May 2007.\nTeague Campbell Dennis & Gorham, L.L.P. by Michael D. Moore for plaintiff-appellant.\nRobinson Elliott & Smith by Kevin D. Elliott for defendant-appellee." }, "file_name": "0707-01", "first_page_order": 739, "last_page_order": 746 }