{ "id": 8522817, "name": "NANCY CAROL LOVE Formerly NANCY LOVE MILLS v. FRANK WILLIAM MOORE and NATIONWIDE MUTUAL INSURANCE COMPANY", "name_abbreviation": "Love v. Moore", "decision_date": "1981-11-03", "docket_number": "No. 8126SC79", "first_page": "406", "last_page": "412", "citations": [ { "type": "official", "cite": "54 N.C. App. 406" } ], "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": "269 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": -1 }, { "cite": "300 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560454, 8560487, 8560524, 8560502, 8560472 ], "year": 1980, "opinion_index": -1, "case_paths": [ "/nc/300/0198-01", "/nc/300/0198-03", "/nc/300/0198-05", "/nc/300/0198-04", "/nc/300/0198-02" ] }, { "cite": "263 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": -1 }, { "cite": "45 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549229 ], "year": 1980, "opinion_index": -1, "case_paths": [ "/nc-app/45/0444-01" ] }, { "cite": "235 S.E. 2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572773, 8572811, 8572750, 8572791, 8572734 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0728-03", "/nc/292/0728-05", "/nc/292/0728-02", "/nc/292/0728-04", "/nc/292/0728-01" ] }, { "cite": "232 S.E. 2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550622 ], "year": 1977, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0362-01" ] }, { "cite": "180 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553129 ], "year": 1971, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0128-01" ] } ], "analysis": { "cardinality": 628, "char_count": 14401, "ocr_confidence": 0.812, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32362562450552135 }, "sha256": "b8e3461de54d2163d5c37a7730e0c4ccf1bae4159a5f75b4edacb40aebc855c8", "simhash": "1:4fb174f906a751bf", "word_count": 2331 }, "last_updated": "2023-07-14T17:12:28.716896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Webb concurs.", "Judge VAUGHN dissents." ], "parties": [ "NANCY CAROL LOVE Formerly NANCY LOVE MILLS v. FRANK WILLIAM MOORE and NATIONWIDE MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant first argues that plaintiff is not entitled to set aside her own judgment. While this was arguably the law according to former G.S. 1-220 which provided for relief to \u201ca party from a judgment . . . taken against him,\u201d Rule 60(b) has no language suggesting that the movant for relief from a judgment must be the losing party. It appears, therefore, that in general \u201cany party may seek relief under the rule.\u201d W. Shuford, N.C. Civil Practice and Procedure \u00a7 60-4 (1975). However, defendant contends that the motion of the plaintiff was improperly granted on the facts of this case because the unenforceability of the judgment, which formed the basis for plaintiffs motion, resulted from plaintiffs own failure to comply with statutory notice requirements. In support of this argument, defendant makes three assignments of error.\nDefendant\u2019s first contention is that the court erred in finding that the plaintiff followed the law when she obtained a judgment against Moore without giving notice to Nationwide.\nWhile it is true that this Court held in Love v. Nationwide, supra, that the judgment which had been entered was in fact a default judgment in spite of the fact that no entry of default was made, it does not follow that plaintiff acted in violation of the law. There is no indication that plaintiff acted in bad faith since she did not know that the judgment would be held to be a default judgment, this case having been one of first impression. Neither was the plaintiff informed by Nationwide that its insured was an assigned risk. Thus, plaintiff acted in compliance with the facts and law as she reasonably understood them in giving notice only to Moore.\nDefendant next argues that the court erred in finding that all necessary evidence is still available to Nationwide to defend the action. This finding, defendant contends, is contradicted by the undisputed fact that defendant Moore is now deceased, having died in 1978. In view of the fact that Nationwide had actual notice of the accident shortly after it occurred, and participated in negotiations with plaintiffs attorney regarding her claim, we find this argument unpersuasive. Nationwide had ample opportunity to depose its insured or to take whatever other action it deemed appropriate to preserve evidence favorable to Moore\u2019s defense. While it is true that not all of the evidence available in 1973 is now available to defendant, the court did not err in finding that all evidence necessary to trial is still available.\nDefendant\u2019s third contention is that the court erred in vacating the judgment against Moore and authorizing notice to Nationwide more than seven years after the original complaint. In supporting this contention, defendant characterizes plaintiff\u2019s failure to give notice to the insurer as a \u201cvoluntary and conscious choice\u201d designed \u201cto circumvent the law of North Carolina.\u201d\nWhile it is clear, in retrospect, that plaintiff should have given notice to Nationwide, her failure to do so hardly raises a presumption of insidious design. Plaintiff had no knowledge of the fact that defendant\u2019s insured was an assigned risk although defendant had opportunities to apprise her of the fact. Neither could she know that her understanding of the law with regard to the entry of default judgments would prove erroneous in light of a subsequent holding of this Court. Finally, plaintiff knew that Nationwide had actual notice of the pendency of a claim arising from the accident in question since negotiations had been conducted between the parties. Moreover, if the statute is construed as placing the burden on the claimant to ascertain whether an insured is an assigned risk in order that the claimant may comply with the notice requirements thereby imposed, failure to do so is, in all likelihood, a matter of attorney neglect. As this Court has clearly stated, \u201c[t]he neglect of the attorney will not be imputed to the litigant unless he is guilty of inexcusable neglect.\u201d (Emphasis added.) Kirby v. Asheville Contracting Co., Inc., 11 N.C. App. 128, 132, 180 S.E. 2d 407, 410 (1971). We do not find the failure to inquire as to whether defendant\u2019s insured was an assigned risk to have been inexcusable neglect under these circumstances.\nIn its second question presented, defendant challenges the court\u2019s assertion of jurisdiction over defendant\u2019s insured.\nDefendant first contends that notice to Moore was insufficient because his middle name was incorrect in the published notice. We agree with defendant that such an error takes on greater significance in a case such as this where the defendant failed to appear, and was not personally served with process, than in cases where process is personally served and/or the defendant appears. However, defendant does not claim that it was unaware of the identity of its insured or of its own potential liability for the injury to plaintiff. Moreover, defendant made no attempt to correct plaintiff\u2019s misunderstanding as to the name of its insured during negotiations on plaintiff\u2019s claim or at any other time.\nWhile it is possible that Moore would have been misled by the error in the published notice, this risk was reduced by the inclusion in the notice of details of the accident. We find, therefore, that notice did not fail, on the facts of this case, as a result of plaintiff\u2019s mistake as to the middle name of defendant\u2019s insured.\nDefendant\u2019s final argument is that service of process by publication was a violation of due process under the circumstances of this case. We find this to be the most persuasive of defendant\u2019s arguments.\nIn determining the constitutional sufficiency of notice afforded defendant\u2019s insured, the question is whether the notice given was \u201cof a nature reasonably calculated to give [him] actual notice and the opportunity to defend.\u201d Royal Business Funds Corp. v. South Eastern Development Corp., 32 N.C. App. 362, 369, 232 S.E. 2d 215, 219, cert. denied 292 N.C. 728, 235 S.E. 2d 784 (1977).\nNotice by publication is generally justified only when more adequate means of service have been exhausted. Publication clearly is not a dependable means of putting a defendant on notice. Here, plaintiff attempted personal service on defendant\u2019s insured without success before resorting to notice by publication. A reasonable argument might be made that plaintiffs efforts were not sufficiently diligent to fulfill the demands of due process. Plaintiff could have inquired of Nationwide as to the whereabouts of its insured and/or could have given Nationwide formal notice of the action against its insured so that it could exercise its right to come in and defend. Plaintiff\u2019s failure to do this weighs against her. However, in view of defendant\u2019s actual notice of the claim, and plaintiffs good faith efforts to comply with the law as she reasonably understood it at the time, we affirm the trial court\u2019s ruling that plaintiff be permitted to pursue her claim in court.\nAffirmed.\nJudge Webb concurs.\nJudge VAUGHN dissents.", "type": "majority", "author": "ARNOLD, Judge." }, { "text": "Judge VAUGHN\ndissenting.\nI must respectfully dissent for a number of reasons. In the first place, plaintiff is not a party aggrieved by the judgment against Moore from which she seeks to be relieved. She was obviously satisfied with that verdict and judgment. Her present predicament stems from her failure timely to take the steps necessary to get a judgment against a different entity \u2014 Nationwide. Moreover, even if plaintiff could be said to be entitled to any relief from that judgment, it would have to be based on either \u201cMistake, inadvertence, surprise, or excusable neglect.\u201d Rule 60(b)(1). A motion on one of those grounds has long since been barred because it must be made within one year of the judgment. Significantly, plaintiffs motion does not set out the rule number or numbers under which she was proceeding, as required by Rule 6 of the General Rules of Practice for the Superior and District Courts. Finally, I cannot agree that Rule 60(b)(6), even if applicable, could afford plaintiff relief because, in my opinion, she has shown no reason \u201cjustifying relief\u2019 within the meaning of that section (even if it could be said the motion was made within a reasonable time). The accident occurred on 30 October 1970, and plaintiff was aware that Moore was insured by Nationwide. On 29 October 1973, just before the action would have been barred by the statute of limitations, she filed her complaint against Frank William Moore. No notice was given to Nationwide, known by plaintiff to be Moore\u2019s insurer. Alias and pluries summons were returned unserved, and Frank William Moore was served by publication in Mecklenburg County. On 30 April 1975, nearly two years after the suit was filed and nearly five years after the accident, plaintiff obtained a default judgment \u2014 still without giving Nationwide notice of the suit. Finally on 31 May 1977, nearly seven years after the accident, plaintiff tried to assert a claim against Nationwide. Moore, the insured, died in July 1978 in Rowan County. The order from which Nationwide appeals was entered 11 June 1980, nearly ten years after the accident occurred. To require Nationwide to defend this stale claim against its former insured whose voice is forever silenced, under the ruse of a Rule 60(b)(6) motion, is not a proper use of that \u201cgrand reservoir of equitable power to do justice in a particular case\u201d referred to in 7 Moore\u2019s Federal Practice, \u00b6 60.27(2), at 375 (2d ed. 1979).\nFor the reasons stated, I respectfully suggest that the order from which defendant appeals should be reversed.", "type": "dissent", "author": "Judge VAUGHN" } ], "attorneys": [ "John D. Warren for plaintiff appellee.", "Kennedy, Covington, Lobdell and Hickman, by William C. Livingston, for defendant appellant." ], "corrections": "", "head_matter": "NANCY CAROL LOVE Formerly NANCY LOVE MILLS v. FRANK WILLIAM MOORE and NATIONWIDE MUTUAL INSURANCE COMPANY\nNo. 8126SC79\n(Filed 3 November 1981)\n1. Rules of Civil Procedure \u00a7 60\u2014 motion to vacate judgment in movant\u2019s favor\nPlaintiff could properly move under G.S. 1A-1, Rule 60(b) to set aside a judgment in her favor.\n2. Insurance \u00a7\u00a7 81, 106.1; Rules of Civil Procedure \u00a7 60.2\u2014 default judgment against assigned risk insured \u2014 absence of notice to insurer \u2014 vacation of judgment\nWhere the Court of Appeals held that plaintiffs judgment against an assigned risk insured motorist was a default judgment although no entry of default had been made and that the judgment was unenforceable against defendant insurer because defendant was not notified of the action as required by G.S. 20-279.21(f)(l), defendant insurer had actual notice of the pendency of a claim arising from the accident in question since it had conducted negotiations with plaintiffs attorney, and plaintiff had no knowledge that defendant\u2019s insured was an assigned risk although defendant had an opportunity to apprise her of that fact, the trial court did not err in vacating the judgment against the insured upon motion by plaintiff and in authorizing notice to defendant insurer more than seven years after the original complaint was filed.\n3. Process \u00a7 10.4\u2014 service of process by publication \u2014use of incorrect middle name for defendant\nNotice by publication to defendant\u2019s insured was not insufficient because it incorrectly listed insured\u2019s middle name as \u201cWilliam\u201d rather than \u201cWillard,\u201d although the insured was not personally served and did not appear, where the notice included details of the accident in question.\n4. Constitutional Law \u00a7 24.8; Process \u00a7 10\u2014 service of process by publication \u2014no violation of due process\nService of process on defendant\u2019s insured by publication in an automobile accident case was not a violation of due process, although plaintiff could have inquired of defendant insurer as to the whereabouts of its insured and could have given defendant formal notice of the action against its insured, where plaintiff unsuccessfully attempted personal service on defendant\u2019s insured before resorting to notice by publication, defendant had actual notice of the pendency of a claim arising from the accident.in question since it had conducted negotiations with plaintiffs attorney, and plaintiff made good faith efforts to comply with the law as she understood it at the time.\nJudge Vaughn dissenting.\nAPPEAL by defendant from Burroughs, Judge. Order entered 9 January 1981 in Superior Court, MECKLENBERG County. Heard in the Court of Appeals 1 September 1981.\nPlaintiff instituted this action to recover for injuries suffered in an automobile accident with defendant\u2019s insured. The facts are largely undisputed.\nOn 30 October 1970, plaintiff was injured when her automobile collided with that of defendant\u2019s insured, Frank Willard Moore. The accident report erroneously listed Moore\u2019s name as Frank William Moore.\nAfter the accident plaintiff\u2019s attorney entered into negotiations with Nationwide Mutual Insurance Company, defendant here, in an effort to settle her claim. However, negotiations were ended without resolution of the claim in October, 1972. Plaintiff had not been notified that Moore was insured under North Carolina\u2019s assigned risk plan.\nOn 29 October 1973, plaintiff filed this action naming Frank William Moore as defendant. After attempting without success to effect personal service on Moore, plaintiff resorted to notice by publication. Neither plaintiff nor Moore served notice on Nationwide.\nNo answer was filed and judgment was entered for plaintiff on 30 April 1975. On 31 May 1977, the plaintiff sought enforcement of the judgment against Nationwide. On appeal this Court held, however, that the judgment against Moore was unenforceable against Nationwide because plaintiff had failed to fulfill the notice requirements of G.S. 20-279.21(f)(l) which prohibits use against an insurer of a default judgment against an assigned risk insured unless the insurer was notified of the action.\nThis Court held, on a question of first impression, that the 1975 judgment was a default judgment although no entry of default ha.d been made. Love v. Nationwide Mutual Insurance Company, 45 N.C. App. 444, 263 S.E. 2d 337, cert, denied 300 N.C. 198, 269 S.E. 2d 617 (1980).\nOn 10 June 1980, plaintiff successfully moved to vacate the unenforceable judgment. Nationwide was then given notice as required by the statute and subsequently filed a motion to reconsider and strike the order to vacate and a motion to dismiss for lack of jurisdiction. From denial of those motions, defendant appeals.\nJohn D. Warren for plaintiff appellee.\nKennedy, Covington, Lobdell and Hickman, by William C. Livingston, for defendant appellant." }, "file_name": "0406-01", "first_page_order": 434, "last_page_order": 440 }