{ "id": 4342746, "name": "HEALTH MANAGEMENT ASSOCIATES, INC., and LOUISBURG H.M.A., INC. d/b/a FRANKLIN REGIONAL MEDICAL CENTER, Plaintiffs v. LEMUEL G. YERBY, III, M.D., TRIANGLE SURGICAL ASSOCIATES, P.A., MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA a/k/a MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA, INC., MEDICAL MUTUAL SERVICES, LLC, and STEVEN SCHWAM, M.D., Defendants", "name_abbreviation": "Health Management Associates, Inc. v. Yerby", "decision_date": "2011-08-16", "docket_number": "No. COA10-577", "first_page": "124", "last_page": "134", "citations": [ { "type": "official", "cite": "215 N.C. App. 124" } ], "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": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "408 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "884", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521410 ], "year": 1991, "pin_cites": [ { "page": "297", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0294-01" ] }, { "cite": "289 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "305 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569850 ], "year": 1982, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0345-01" ] }, { "cite": "373 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564495, 2561577, 2560493, 2565935 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0370-04", "/nc/323/0370-03", "/nc/323/0370-01", "/nc/323/0370-02" ] }, { "cite": "369 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "322 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519016 ], "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0567-01" ] }, { "cite": "294 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570630, 8570799, 8570673, 8570711, 8570745 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0392-01", "/nc/306/0392-05", "/nc/306/0392-02", "/nc/306/0392-03", "/nc/306/0392-04" ] }, { "cite": "289 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "874" }, { "page": "874", "parenthetical": "quotation and alteration omitted" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522384 ], "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0525-01" ] }, { "cite": "444 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "206", "parenthetical": "holding that where a church did not pay any part of a settlement agreement, it did not pay more than its pro rata share and was not entitled to contribution" } ], "opinion_index": 0 }, { "cite": "336 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536562 ], "year": 1994, "pin_cites": [ { "page": "586", "parenthetical": "holding that where a church did not pay any part of a settlement agreement, it did not pay more than its pro rata share and was not entitled to contribution" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0581-01" ] }, { "cite": "996 F.2d 1213", "category": "reporters:federal", "reporter": "F.2d", "year": 1993, "opinion_index": 0 }, { "cite": "804 F. Supp. 768", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7408085 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/f-supp/804/0768-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-28-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "594 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896347 ], "year": 2004, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0183-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "888-89", "parenthetical": "internal quotations and footnote omitted" }, { "page": "888", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "169 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468984 ], "year": 2005, "pin_cites": [ { "page": "191", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0187-01" ] }, { "cite": "344 F.2d 789", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 869451 ], "year": 1965, "pin_cites": [ { "page": "790", "parenthetical": "\"[W]here an individual creates a corporation as a means of carrying out his business purposes he may not ignore the existence of the corporation in order to avoid its disadvantages.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/f2d/344/0789-01" ] }, { "cite": "587 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491681, 491748, 491590, 491718, 491627, 491664, 491741, 491550 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0504-08", "/nc/357/0504-01", "/nc/357/0504-06", "/nc/357/0504-02", "/nc/357/0504-03", "/nc/357/0504-07", "/nc/357/0504-04", "/nc/357/0504-05" ] }, { "cite": "576 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189645 ], "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0063-01" ] }, { "cite": "249 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "396", "parenthetical": "\"Where persons have deliberately adopted the corporate form to secure its advantages, they will not be allowed to disregard the existence of the corporate entity when it is to their benefit to do so.\" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "296 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564418 ], "year": 1978, "pin_cites": [ { "page": "29", "parenthetical": "\"Where persons have deliberately adopted the corporate form to secure its advantages, they will not be allowed to disregard the existence of the corporate entity when it is to their benefit to do so.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0020-01" ] }, { "cite": "380 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "102-03", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482042 ], "year": 1989, "pin_cites": [ { "page": "470", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0466-01" ] }, { "cite": "335 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522489 ], "year": 1985, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0363-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 24904, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14734526993658703 }, "sha256": "8612663f434ef84c1099886a566099a84bf06dbc15764ed134ea80b4eecba79a", "simhash": "1:4ea9d61c062fa55d", "word_count": 3944 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, JR., ROBERT N. concur." ], "parties": [ "HEALTH MANAGEMENT ASSOCIATES, INC., and LOUISBURG H.M.A., INC. d/b/a FRANKLIN REGIONAL MEDICAL CENTER, Plaintiffs v. LEMUEL G. YERBY, III, M.D., TRIANGLE SURGICAL ASSOCIATES, P.A., MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA a/k/a MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA, INC., MEDICAL MUTUAL SERVICES, LLC, and STEVEN SCHWAM, M.D., Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere HMA was judicially estopped from asserting that the corporate veil should be pierced between HMA and Louisburg HMA, HMA was not licensed as an insurance carrier in North Carolina, and Louisburg HMA paid no monies to settle the Faulkner lawsuit, the trial court did not err in finding that neither HMA nor Louisburg HMA had standing to recover contribution from defendants. Where there was no factual issue that Dr. Yerby and Triangle Surgical Associates were independent contractors rather than employees of Louisburg HMA, the trial court properly granted summary judgment on plaintiffs\u2019 indemnity claim. Where defendants did not consciously accept the benefit of a settlement, there was no claim for unjust enrichment.\nI. Factual and Procedural Background\nOn 25 June 2002, Joan M. Faulkner (Faulkner) visited Franklin Regional Medical Center for an excisional biopsy of her left cervical lymph node. Dr. Lemuel Yerby, III (Dr. Yerby) performed the operation. During the operation, supplemental oxygen was administered through a nasal cannula and face mask. Dr. Steven Schwam (Dr. Schwam) managed and supervised the administration of anesthesia. Dr. Yerby used an electrosurgical unit while performing the operation. The electrosurgical unit came into contact with the oxygen and ignited a fire. Faulkner was severely burned on her face, neck, and chest.\nIn 2003, Falkner and her husband filed a complaint seeking recovery for medical negligence against Health Management Associates, Inc. (HMA); Louisburg H.M.A., Inc., d/b/a Franklin Regional Medical Center (Louisburg HMA); Dr. Yerby; Triangle Surgical Associates, P.A.; and Dr. Schwam in Franklin County case 03 CVS 271. On 20 September 2004, Dr. Schwam entered into a settlement agreement with the Faulkners and was released from all claims. On 24 August 2005, five days before the scheduled trial, the Faulkners signed a settlement agreement with HMA and its professional liability insurance carrier, The Doctor\u2019s Company, and agreed to release HMA, Louisburg HMA, Dr. Yerby, and Triangle Surgical Associates, P.A. from any and all claims arising from the 25 June 2002 incident. Dr. Yerby and Triangle Surgical Associates, P.A. had not authorized HMA to act on their behalf and had refused to participate in the settlement negotiations. Pursuant to the settlement agreement, The Doctor\u2019s Company paid to the Faulkners its liability policy limits and HMA paid an additional amount. On 5 June 2006, the Faulkners dismissed their complaint with prejudice.\nOn 24 August 2006, HMA and Louisburg HMA (collectively, plaintiffs) filed this action against Dr. Yerby, Triangle Surgical Associates, P.A., Medical Mutual Insurance Company of North Carolina a/k/a Medical Mutual Insurance Company of North Carolina, Inc., Medical Mutual Services, LLC, and Dr. Schwam, for contribution, indemnity, and unjust enrichment. Subsequently, all defendants were voluntarily dismissed with the exception of Dr. Yerby and Triangle Surgical Associates, P.A. (collectively, defendants). On 27 October 2006, defendants filed an answer and denied the material allegations of plaintiffs\u2019 complaint. On 24 July 2007, the Chief Justice of North Carolina designated this case as a complex business case and assigned it for hearing. On 26 January 2009, defendants filed a motion for summary judgment.\nOn 1 June 2009, the trial court entered a lengthy order, granting defendants\u2019 motion for summary judgment, and dismissing plaintiffs\u2019 complaint. On 23 July 2009, the trial court denied plaintiffs\u2019 motions to reconsider, amend, alter, or otherwise grant relief from the 1 June 2009 order pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure.\nPlaintiffs appeal.\nII. Summary Judgment Order\nIn their first argument, plaintiffs contend that the trial court erred in granting defendants\u2019 motion for summary judgment. We disagree.\nA. Standard of Review\nThe standard of review on a trial court\u2019s ruling on a motion for summary judgment is de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). Summary judgment is appropriate where \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). \u201cAll inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion.\u201d Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citation omitted).\nB. Analysis\n1. Claims for Contribution\nN.C. Gen. Stat. \u00a7 IB-1 provides: \u201cExcept as otherwise provided in this Article, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.\u201d N.C. Gen. Stat. \u00a7 1B-1(a) (2009). However, \u201c[t]he right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share.\u201d N.C. Gen. Stat. \u00a7 1B-1(b) (2009). The right of contribution is statutory and only applies to joint tort-feasors. Roseboro Ford, Inc. v. Bass, 77 N.C. App. 363, 367, 335 S.E.2d 214, 217 (1985).\nTwo or more parties are joint tort-feasors when their negligent or wrongful acts are united in time or circumstance such that the two acts constitute one transaction or when two separate acts concur in point of time and place to cause a single injury. The burden is on the tortfeasor seeking contribution to show that the right exists, and to allege facts which show liability to the injured party as well as a right to contribution.\nState Farm Mut. Ins. Co. v. Holland, 324 N.C. 466, 470, 380 S.E.2d 100, 102-03 (1989) (internal citations omitted) (emphasis added). It was incumbent upon HMA and Louisburg HMA to demonstrate a right to contribution against defendants.\nThe trial court entered its order upon uncontroverted facts. As to HMA, it held that there was no admissible evidence that HMA was independently negligent in causing injuries to the Faulkners. There was thus no basis for a contribution claim by HMA against defendants. The trial court rejected HMA\u2019s contention that Louisburg HMA was the \u201cmere instrumentality\u201d of HMA based upon two grounds: (1) there was no evidence to support that theory; and (2) HMA, by taking a contrary position in the prior litigation, was judicially estopped from asserting that theory. Finally, the trial court rejected HMA\u2019s contention that it was a subrogated insurance carrier for Louisburg HMA because it was not licensed as an insurance company in North Carolina. As to Louisburg HMA, it held that because it had made no settlement payments to the Faulkners, it did not have independent standing to pursue a contribution claim against defendants.\na. HMA\nWith regard to HMA, plaintiffs\u2019 main contention was that the corporate veil between Louisburg HMA and HMA should be deemed pierced under the instrumentality rule. Thus, HMA was liable for the acts of Louisburg HMA, and payment made on behalf of Louisburg HMA entitles HMA to contribution from defendants.\nPlaintiffs contend that they should be permitted to disregard the corporate structure which they themselves created, i.e., reverse piercing of the corporate veil. \u201cOccasionally the owners of the corporation themselves will urge a court to disregard a separate corporate entity for their own benefit (\u2018insider reverse pierce\u2019). This argument is rarely sustained, but may be accepted in special circumstances.\u201d Russell M. Robinson, II, Robinson on North Carolina Corporation Law, \u00a7 2.10[1], at 2-26 (7th ed. 2010) (footnote omitted); see also Board of Transportation v. Martin, 296 N.C. 20, 29, 249 S.E.2d 390, 396 (1978) (\u201cWhere persons have deliberately adopted the corporate form to secure its advantages, they will not be allowed to disregard the existence of the corporate entity when it is to their benefit to do so.\u201d (citations omitted)); Department ofTransp. v. Airlie Park, Inc., 156 N.C. App. 63, 68, 576 S.E.2d 341, 345 (citing Robinson), appeal dismissed, 357 N.C. 504, 587 S.E.2d 417 (2003); Terry v. Yancey, 344 F.2d 789, 790 (4th Cir. 1965) (\u201c[W]here an individual creates a corporation as a means of carrying out his business purposes he may not ignore the existence of the corporation in order to avoid its disadvantages.\u201d (citations omitted)).\nEven assuming arguendo that plaintiffs could show genuine issues of material fact as to whether the corporate veil should have been pierced based upon the instrumentality rule, plaintiffs are barred from making such an argument under the doctrine of judicial estoppel.\n\u201c[Jjudicial estoppel forbids a party from asserting a legal position inconsistent with one taken earlier in the same or related litigation.\u201d Price v. Price, 169 N.C. App. 187, 191, 609 S.E.2d450, 452 (2005) (quotation omitted). In Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (2004), the North Carolina Supreme Court articulated three factors to consider for invoking judicial estoppel:\nFirst, a party\u2019s subsequent position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party\u2019s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding might pose a threat to judicial integrity by leading to inconsistent court determinations or the perception that either the first or the second court was misled. Third, courts consider whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.\nId. at 29, 591 S.E.2d at 888-89 (internal quotations and footnote omitted). The only factor that must be present for judicial estoppel to apply is the first factor. Wiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 188, 594 S.E.2d 809, 812 (2004). The purpose of this doctrine is \u201cto protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment[.]\u201d Whiteacre P\u2019ship, 358 N.C. at 28, 591 S.E.2d at 888 (internal quotations omitted).\nIn the underlying Faulkner case (Franklin County case 03 CVS 271), plaintiffs, then defendants, denied allegations that HMA \u201cowns, operates, manages and controls defendant Louisburg H.M.A., Inc., as a wholly owned subsidiary that defendant HMA operates as a mere instrumentality.\u201d\nIn response to discovery in the Faulkner case, plaintiffs asserted that \u201cLouisburg H.M.A., Inc., is a North Carolina incorporated entity, doing business as Franklin Regional Medical Center. Louisburg H.M.A. ... is distinct and apart from H.M.A., Inc., which is incorporated in the State of Delaware.\u201d (Emphasis added.) Plaintiffs submitted the following answer in their Supplemental Responses to the Faulkners\u2019 First Set of Interrogatories and Request for Production of Documents and Motion for Protective Order:\n[Question] 6. If HMA contends that it does not operate Louisburg HMA, Inc. as a mere instrumentality, provide all facts that support the contention.\nANSWER: HMA does [sic] operate Louisburg HMA, Inc., as a mere instrumentality since HMA does not completely dominate Louisburg HMA finances nor its policy or business practices. Furthermore, Louisburg HMA has, with regard to its policies and procedures, its own separate mind, will and existence. Louisburg HMA is adequately capitalized and has complied with corporate formalities, and has its own independent corporate identity. Louisburg HMA has its own articles of incorporation and bylaws.\nIn the instant case, plaintiffs alleged in their complaint that \u201cPlaintiff HMA owns, operates, manages, and controls Franklin Regional Medical Center\u201d and that Louisburg HMA \u201cis . .. doing business as Franklin Regional Medical Center in Franklin County, North Carolina.\u201d In their brief to the trial court in opposition to defendants\u2019 motion for summary judgment, plaintiffs argued that: (1) Louisburg HMA had limited capital; (2) Louisburg HMA did not observe corporate formalities; and (3) HMA operated Louisburg HMA as a mere instrumentality. Further, in their brief to this Court, plaintiffs argue that \u201cHMA. . . completely dominated the Louisburg HMA subsidiary;\u201d \u201cHMA had utter and complete authority and exercised actual control over its subsidiary, operating the latter as a mere instrumentality or tool;\u201d \u201cLouisburg HMA did not manage its own finances, had very little cash or deposits;\u201d and \u201cin total disregard of corporate formalities, HMA . . . had unfettered discretion over the funds of Louisburg HMA\u201d and \u201cexercised its control of Louisburg HMA by operating without contracts or resolutions.\u201d\nPlaintiffs\u2019 factual assertions in the underlying Faulkner case (Franklin County case 03 CVS 271) are unequivocally inconsistent with those of the instant case. Plaintiffs are judicially estopped from asserting that the corporate veil should be pierced between HMA and Louisburg HMA.\nThe trial court also held that HMA did not have standing to recover contribution from defendants on the theory that it was in the position of a subrogated insurance carrier for Louisburg HMA because HMA was operating without the necessary licensure in North Carolina pursuant to N.C. Gen. Stat. \u00a7 58-28-15.\nN.C. Gen. Stat. \u00a7 58-28-15 provides, in part, that \u201cno company transacting insurance business in this State without a license shall be permitted to maintain an action at law or in equity in any court of this State to enforce any right, claim or demand arising out of the transaction of such business until such company shall have obtained a license.\u201d In his deposition, Timothy Parry, HMA\u2019s senior vice president, conceded that HMA had never been licensed to sell insurance in the State of North Carolina.\nPlaintiffs argue that HMA\u2019s \u201cself-insurance\u201d program does not fall within the meaning of term insurance. Plaintiffs cite Wake County Hosp. System v. National Cas. Co., 804 F. Supp. 768 (E.D.N.C. 1992), aff\u2019d, 996 F.2d 1213 (4th Cir. 1993), for this proposition. In Wake County Hosp. System, the Court explained that \u201cunder a self-insurance scheme, no written insurance policy is issued by another individual or entity nor is a premium paid because obviously a business which is self-insured does not need to pay itself to protect against its own risk of loss.\u201d Id. at 775. The Court then agreed with the plaintiff hospital\u2019s contention that a self-insured retention does not fall within the plain and ordinary meaning of the term insurance, i.e. an insurance policy issued by a licensed insurer in exchange for a premium charged. Id.\nIn the instant case, in order for HMA to be protecting itself \u201cagainst its own risk of loss,\u201d HMA and Louisburg HMA must be considered to be a single corporate entity. As discussed above, HMA and Louisburg HMA are estopped from making such an argument. For purposes of this appeal, HMA and Louisburg HMA are separate and distinct entities. Thus, HMA\u2019s insurance program with Louisburg HMA cannot be \u201cself-insurance.\u201d\nHMA was operating an insurance program in North Carolina without a license pursuant to N.C. Gen. Stat. 58-28-15 and is barred from recovering contribution on this basis.\nb. Louisburg HMA\nWith regard to Louisburg HMA, plaintiffs contend that the trial court\u2019s conclusion that Louisburg HMA did not pay any of the monies paid to the Faulkners is unfounded. We disagree.\nPlaintiffs argue that the payment by The Doctor\u2019s Company was made on behalf of Louisburg HMA. However, there is no evidence in the record to support this contention. The insurance policy with The Doctor\u2019s Company was not included in the record on appeal. Thus, this Court is unable to discern who was an \u201cInsured\u201d under the policy. We further note that there is no other evidence in the record that Louisburg HMA was a beneficiary under the terms of the policy. To the contrary, HMA\u2019s supplemental responses to the first set of interrogatories in the Faulkner lawsuit (Franklin County case 03 CVS 271) identified The Doctor\u2019s Company as the insurer and under the subsection where it was to list the \u201cType of policy and person(s) covered;\u201d it stated \u201cHospital and healthcare facility liability policy covering Health Care Management Associates, Inc.\u201d\nPlaintiffs next argue that Louisburg HMA participated in and made contributions to the \u201cself-insurance\u201d pool of HMA and those funds were paid to settle the Faulkner case. However, as discussed above, HMA\u2019s insurance program with Louisburg HMA is not self-insurance under the facts this case.\nPlaintiffs have failed to show that Louisburg HMA has paid its pro rata share of the settlement payment to the Faulkners in order to establish a claim for contribution. See Jones v. Shoji, 336 N.C. 581, 586, 444 S.E.2d 203, 206 (1994) (holding that where a church did not pay any part of a settlement agreement, it did not pay more than its pro rata share and was not entitled to contribution).\nThe trial court properly concluded that neither HMA nor Louisburg HMA had standing to recover contribution from defendants.\n2. Indemnity\nPlaintiffs alternatively argue that they are entitled to indemnity from defendants. This Court has stated:\nA right to indemnity arises in cases of primary-secondary liability, i. e., when two persons (1) . . . are jointly and severally liable to the plaintiff. . . and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former.\nSullivan v. Smith, 56 N.C. App. 525, 531, 289 S.E.2d 870, 874 (quotation omitted), disc. rev. denied, 306 N.C. 392, 294 S.E.2d 220 (1982). In the instant case, plaintiffs alleged in their claim for indemnity that \u201c[a]s a direct and proximate result of the negligence of defendants Yerby and Schwam . . . HMA suffered derivative fault.\u201d However, \u201c \u2018it has long been . . . the general rule that there is no vicarious liability upon the employer\u2019 for the torts of an independent contractor.\u201d Id. at 532, 289 S.E.2d at 874 (quotation and alteration omitted). In their supplemental responses to Dr. Yerby\u2019s first set of interrogatories and requests for production of documents, plaintiffs conceded that Dr. Yerby was not an agent, employee, or servant of HMA or Franklin Regional Medical Center. Thus, Dr. Yerby was an independent contractor and HMA is not derivatively liable for any alleged negligence of Dr. Yerby. Id.\nPlaintiffs are not entitled to indemnification. This argument is without merit.\n3. Uniust Enrichment\nPlaintiffs assert that defendants were unjustly enriched because they benefitted from the settlement of the Faulkner case.\nIn order to establish a claim for unjust enrichment, a party must have conferred a benefit on the other party. The benefit must not have been conferred officiously, that is it must not be conferred by an interference in the affairs of the other party in a manner that is not justified in the circumstances. The benefit must not be gratuitous and it must be measurable.\nBooe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (citation omitted), reh\u2019g denied, 323 N.C. 370, 373 S.E.2d 540 (1988). In addition, the defendant must have consciously accepted the benefit. Id.; see also Wright v. Wright, 305 N.C. 345, 350, 289 S.E.2d 347, 351 (1982) (\u201cNot every enrichment of one by the voluntary act of another is unjust. Where a person has officiously conferred a benefit upon another, the other is enriched but is not considered to be unjustly enriched. The recipient of a benefit voluntarily bestowed without solicitation or inducement is not liable for their value.\u201d (quotation omitted)).\nIn the instant case, plaintiffs\u2019 payment of the settlement agreement on behalf of defendants was voluntary and unsolicited. Defendants had not authorized HMA to act on their behalf and did not participate in the settlement negotiations. Further, defendants did not execute the settlement agreement. At the summary judgment hearing, defendants\u2019 counsel stated, \u201cWe did not want them to settle.\u201d Thus, defendants are not liable to plaintiffs under the theory of unjust enrichment.\nThe trial court properly granted summary judgment in favor of defendants.\nIII. Rule 59/Rule 60 Order\nIn their second argument, plaintiffs contend that the trial court erred by denying plaintiffs\u2019 motions for a new trial under Rule 59 and for relief from judgment under Rule 60. We disagree.\nPlaintiffs base both motions upon the assertion that the affidavit of Gre\u00f1a Porto, which allegedly evinces the direct negligence of HMA, was inadvertently not given to HMA\u2019s present counsel. Thus, its discovery constituted newly discovered evidence.\nIn order for evidence to be considered \u201cnewly discovered,\u201d it \u201cmust be such that it could not have been obtained in time for the original proceeding through the exercise of due diligence.\u201d Waldrop v. Young, 104 N.C. App. 294, 297, 408 S.E.2d 883, 884 (1991) (citation omitted). It is undisputed that plaintiffs\u2019 counsel was served with the affidavit on 15 August 2005, and that the affidavit was filed in the Faulkner case with the Clerk of Superior Court for Franklin County. The document was not \u201cnewly discovered\u201d after the summary judgment hearing in the instant case had concluded. The trial court did not err in denying plaintiffs\u2019 motions pursuant to Rules 59 and 60.\nThis argument is without merit.\nIV. Conclusion\nBased upon the peculiar facts of this case, where HMA and Louisburg HMA are judicially estopped from piercing the corporate veil, HMA was not licensed as an insurance carrier in North Carolina, and defendants did not consent to, approve, or ratify the settlement made by HMA with the Faulkners, we affirm the ruling of the trial court granting defendants\u2019 motion for summary judgment.\nAFFIRMED.\nJudges STEPHENS and HUNTER, JR., ROBERT N. concur.\n. The settlement agreement was confidential and the amount of the settlement was redacted from the record.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "The Mitchell Law Group, by Ronnie M. Mitchell and Grant S. Mitchell, for plaintiff-appellants.", "Young Moore and Henderson RA., by Kelly E. Street, William P. Daniell, and Robert D. Walker, Jr., for defendant-appellees." ], "corrections": "", "head_matter": "HEALTH MANAGEMENT ASSOCIATES, INC., and LOUISBURG H.M.A., INC. d/b/a FRANKLIN REGIONAL MEDICAL CENTER, Plaintiffs v. LEMUEL G. YERBY, III, M.D., TRIANGLE SURGICAL ASSOCIATES, P.A., MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA a/k/a MEDICAL MUTUAL INSURANCE COMPANY OF NORTH CAROLINA, INC., MEDICAL MUTUAL SERVICES, LLC, and STEVEN SCHWAM, M.D., Defendants\nNo. COA10-577\n(Filed 16 August 2011)\n1. Contribution \u2014 medical negligence \u2014 piercing corporate veil \u2014 instrumentality rule \u2014 judicial estoppel \u2014 unlicensed insurance carrier\nThe trial court did not err in a medical negligence case by granting defendants\u2019 motion for summary judgment on the claim for contribution. Even assuming arguendo that plaintiffs could show genuine issues of material fact as to whether the corporate veil should have been pierced based upon the instrumentality rule, plaintiffs were barred from making such an argument under the doctrine of judicial estoppel. Health Management Associates (HMA) was not licensed as an insurance carrier in North Carolina, and Louisburg HMA paid no monies to settle the lawsuit.\n2. Indemnity \u2014 medical negligence \u2014 independent contractors\nThe trial court did not err in a medical negligence case by granting defendants\u2019 motion for summary judgment on the claim for indemnity. Defendant doctor and defendant surgical company were independent contractors rather than employees of Louisburg HMA. Thus, HMA was not derivatively liable for any alleged negligence of defendant doctor.\n3. Unjust Enrichment \u2014 medical negligence \u2014 no conscious acceptance of benefit\nThe trial court did not err in a medical negligence case by granting defendants\u2019 motion for summary judgment on the claim for unjust enrichment. Defendants did not consciously accept the benefit of a settlement.\n4. Evidence \u2014 not newly discovered \u2014 motion for new trial\u2014 properly denied\nThe trial court did not err in a medical negligence case by denying plaintiffs\u2019 motions for a new trial under N.C.G.S. \u00a7 1A-1, Rules 59 and 60. The pertinent document was not \u201cnewly discovered\u201d evidence after the summary judgment hearing.\nAppeal by plaintiffs from orders entered 1 June and 23 July 2009 by Judge John R. Jolly, Jr. in the Special Superior Court for Complex Business Cases. Heard in the Court of Appeals 17 November 2010.\nThe Mitchell Law Group, by Ronnie M. Mitchell and Grant S. Mitchell, for plaintiff-appellants.\nYoung Moore and Henderson RA., by Kelly E. Street, William P. Daniell, and Robert D. Walker, Jr., for defendant-appellees." }, "file_name": "0124-01", "first_page_order": 134, "last_page_order": 144 }