{
  "id": 8549197,
  "name": "THE TRAVELERS INSURANCE COMPANY, Plaintiff v. RYDER TRUCK RENTAL, INC., Defendant, Third Party Plaintiff v. SAN-BAR CORPORATION OF THE CAROLINAS, Third Party Defendant",
  "name_abbreviation": "Travelers Insurance Co. v. Ryder Truck Rental, Inc.",
  "decision_date": "1977-11-02",
  "docket_number": "No. 7714SC61",
  "first_page": "379",
  "last_page": "381",
  "citations": [
    {
      "type": "official",
      "cite": "34 N.C. App. 379"
    }
  ],
  "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": "144 S.E. 2d 589",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "265 N.C. 521",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8576022
      ],
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nc/265/0521-01"
      ]
    }
  ],
  "analysis": {
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    "sha256": "b1ed76070e444ebdaf47746b29d3ed5e0d4f4bb7b52f1a656035077818e63758",
    "simhash": "1:b6a6437fe15f1913",
    "word_count": 792
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  "last_updated": "2023-07-14T20:28:15.830309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge BROCK and Judge PARKER concur."
    ],
    "parties": [
      "THE TRAVELERS INSURANCE COMPANY, Plaintiff v. RYDER TRUCK RENTAL, INC., Defendant, Third Party Plaintiff v. SAN-BAR CORPORATION OF THE CAROLINAS, Third Party Defendant"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant, the third party plaintiff, argues on appeal that the trial court committed prejudicial error in failing to strike plaintiffs notice of voluntary dismissal without prejudice. We should note at the outset that a motion to strike \u201cany insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter\u201d under G.S. 1A-1, Rule 12(f) is not the proper motion by which to challenge a notice of dismissal without prejudice. In order to reach the real issue of this case, however, we shall treat defendant\u2019s motion as a motion to set aside plaintiff\u2019s notice of dismissal. The question is whether or not defendant\u2019s third-party complaint asserted grounds for affirmative relief such that plaintiff\u2019s notice of dismissal would defeat some substantive right of defendant. See, e.g., Griffith v. Griffith, 265 N.C. 521, 144 S.E. 2d 589 (1965). If so, plaintiff would not be entitled to take a voluntary dismissal. Id.\nHaving reviewed the pleadings in the present case, we can find no affirmative relief sought by the defendant. Defendant cross-claims against San-Bar to recover any sums which it may be required to pay to the plaintiff. This action for indemnification is contingent upon plaintiff\u2019s recovery and is in no way \u201caffirmative relief,\u201d as defendant asserts. The trial court, therefore, correctly overruled defendant\u2019s motion and allowed the dismissal.\nDefendant\u2019s further argument that, since the voluntary dismissal should not have been allowed, the court erred in declaring moot defendant\u2019s motion for summary judgment, is likewise without merit. After the notice of dismissal was properly allowed, there remained no claim against defendant for which defendant would be entitled to indemnity. Defendant\u2019s motion for summary judgment against San-Bar thereby became moot.\nAffirmed.\nChief Judge BROCK and Judge PARKER concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Spears, Barnes, Baker and Boles, by J. Bruce Hoof, for plaintiff appellee.",
      "Henson & Donahue, by Daniel W. Donahue, for defendant and third party plaintiff appellant.",
      "Pulley and Wainio, P.A., by John C. Wainio, for third party defendant appellee."
    ],
    "corrections": "",
    "head_matter": "THE TRAVELERS INSURANCE COMPANY, Plaintiff v. RYDER TRUCK RENTAL, INC., Defendant, Third Party Plaintiff v. SAN-BAR CORPORATION OF THE CAROLINAS, Third Party Defendant\nNo. 7714SC61\n(Filed 2 November 1977)\nRules of Civil Procedure \u00a7 41\u2014 voluntary dismissal \u2014 no affirmative relief sought by defendant \u2014 motion properly granted\nWhere defendant was sued by plaintiff to recover sums paid by plaintiff to certain persons for injuries sustained in an automobile accident with an employee of the third party defendant, and defendant cross-claimed against third party defendant for any claims defendant would have to pay to plaintiff, defendant\u2019s cross-claim for indemnification was contingent upon plaintiffs recovery and was in no way affirmative relief; therefore, the trial court properly allowed plaintiff to take a voluntary dismissal against defendant.\nAppeal by defendant from Hobgood, Judge. Judgment entered 1 November 1976, in Superior Court, DURHAM County. Heard in the Court of Appeals 24 October 1977.\nThe plaintiff Travelers Insurance Company (hereinafter Travelers) instituted this action against defendant Ryder Truck Rental, Inc. (hereinafter Ryder) to recover money plaintiff had paid to a Mr. and Mrs. Nobles who received personal injury and property damage in an automobile accident with an employee of San-Bar Corporation (hereinafter San-Bar). Travelers paid the Nobles pursuant to an insurance policy insuring San-Bar against loss; Travelers, however, alleged that Ryder, who had leased to San-Bar the truck involved in the accident, had a contractual as well as a statutory (G.S. 20-281) obligation to provide automobile liability insurance coverage, and that Ryder was liable to plaintiff for the amount plaintiff had paid the Nobles. Plaintiff furthermore alleged that Ryder\u2019s refusal to provide the insurance coverage constituted an unfair and deceptive trade practice within the meaning of G.S. 75-1.1 which entitled plaintiff to recover treble damages (G.S. 75-16) plus reasonable attorney\u2019s fees (G.S. 75-16.1).\nDefendant answered and denied liability, specifically alleging that the San-Bar employee involved in the accident was, at the time of the accident, under the age of 21 years; that San-Bar thereby breached the truck rental agreement; and that Ryder was not, therefore, obligated under the rental agreement to furnish liability insurance to San-Bar. Defendant Ryder also filed a third-party complaint against San-Bar seeking indemnity, pursuant to a contract provision, for any claims Ryder would have to pay under statutory requirements of insurance but which Ryder would not otherwise be obligated to pay.\nAfter the answer to the third party complaint and some pretrial discovery and motions, plaintiff, pursuant to G.S. 1A-1, Rule 41(a), gave notice of dismissal without prejudice of its action against Ryder. Ryder, pursuant to G.S. 1A-1, Rule 12(f), moved the court to strike the notice of voluntary dismissal on the ground that Ryder had sought affirmative relief and that plaintiff, therefore, had no right to submit a voluntary dismissal. Defendant\u2019s motion was denied and defendant appeals.\nSpears, Barnes, Baker and Boles, by J. Bruce Hoof, for plaintiff appellee.\nHenson & Donahue, by Daniel W. Donahue, for defendant and third party plaintiff appellant.\nPulley and Wainio, P.A., by John C. Wainio, for third party defendant appellee."
  },
  "file_name": "0379-01",
  "first_page_order": 407,
  "last_page_order": 409
}