{
  "id": 8524452,
  "name": "DONALD A. BRACE v. DONALD C. STROTHER, SR., AND MARY G. STROTHER, Collectors of the Estate of Donald C. Strother, Jr. (deceased)",
  "name_abbreviation": "Brace v. Strother",
  "decision_date": "1988-05-31",
  "docket_number": "No. 8710SC699",
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  "last_updated": "2023-07-14T21:55:12.261630+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Parker and Greene concur."
    ],
    "parties": [
      "DONALD A. BRACE v. DONALD C. STROTHER, SR., AND MARY G. STROTHER, Collectors of the Estate of Donald C. Strother, Jr. (deceased)"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff filed this personal injury action to recover damages incurred in an automobile accident while riding with defendants\u2019 deceased son. Defendants denied negligence and filed a motion for summary judgment. From the trial court\u2019s order granting partial summary judgment in defendants\u2019 favor, plaintiff appeals. We affirm.\nOn 2 July 1984, plaintiff was a passenger in an automobile owned and operated by defendants\u2019 son. An accident occurred which killed defendants\u2019 son instantly and severely injured plaintiff.\nAt the time of the accident defendants\u2019 son had an automobile liability insurance policy with Nationwide Mutual Insurance Company (Nationwide). This policy provided bodily injury coverage of up to $25,000.00. Plaintiff also had an automobile insurance policy with Nationwide which provided underinsured motorists coverage up to $100,000.00.\nOn 10 August 1984, defendants applied to the Wake County Clerk of Superior Court for issuance of an affidavit for collection of personal property for their deceased son\u2019s estate. On 27 December 1984, defendants filed a final affidavit of collection, disbursement and distribution of their son\u2019s personal property with the Clerk of Superior Court. Defendants were never appointed collectors or personal representatives for their son\u2019s estate.\nOn 13 June 1986, plaintiff filed a complaint against defendants as collectors for their son\u2019s estate. His complaint alleged that defendants\u2019 son\u2019s negligence was the proximate cause of his injuries and that defendants\u2019 son was underinsured under the terms of plaintiffs policy with Nationwide. He further alleged that he had tried to recover under the underinsured motorists provision of his policy, but that Nationwide had refused to pay. Plaintiff then prayed for the following relief: (1) actual damages in excess of $300,000.00 against defendants; (2) punitive damages in excess of $100,000.00 against defendants; (3) actual damages against Nationwide for the limits of its underinsured motorist coverage; and (4) appointment of an administrator for the estate of defendants\u2019 son.\nAfter answering the complaint, defendants and Nationwide filed a motion for summary judgment. The trial court considered the motion as one for partial summary judgment and ruled only on the issues argued at the summary judgment hearing. Accordingly, the trial court granted summary judgment to defendants and Nationwide on the following issues: (1) plaintiffs claim for punitive damages; (2) plaintiffs claim against defendants because they lacked capacity to be sued; (3) plaintiffs claims in excess of $25,000.00; and (4) plaintiffs claims against Nationwide. From this order, plaintiff appeals.\nPlaintiff first argues that the trial court erred in dismissing all of his claims in excess of $25,000.00 and in dismissing his claim against Nationwide. We disagree.\nN.C. Gen. Stat. \u00a7 28A-19-3, \u201cLimitations on presentation of claims,\u201d provides:\n(b) All claims against a decedent\u2019s estate which arise at or after the death of the decedent, . . . founded on contract, tort, or other legal basis are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent unless presented to the personal representative or collector as follows:\n* * * *\n(2) With respect to any claim other than a claim based on a contract with the personal representative or collector, within six months after the date on which the claim arises.\n* * * *\n(i) Nothing in this section shall bar:\n(1) Any claim alleging the liability of the decedent or personal representative; . . .\n* * * *\nto the extent that the decedent or personal representative is protected by insurance coverage with respect to such claim .... (Emphasis added.)\nIn the present action, plaintiffs claim arose on 2 July 1984, the day of the automobile accident and defendants\u2019 son\u2019s death. Plaintiff had an outside time limit of six months, or until 2 January 1985, to file an action against the decedent\u2019s estate. Since plaintiff did not initiate this action until 13 June 1986, he is clearly barred from recovering anything from the decedent\u2019s estate, except \u201cto the extent that the decedent ... is protected by insurance coverage with respect to such claim . . . .\u201d N.C. Gen. Stat. \u00a7 28A-19-3(i) (1984). The decedent in this case had an automobile liability insurance policy with Nationwide with policy limits of $25,000.00 for bodily injury. Plaintiff may recover only up to this amount if he prevails in his negligence action against decedent\u2019s personal representative or collector.\nPlaintiff concedes that his recovery is limited to the amount of insurance applicable to this claim, since he filed suit more than six months after the decedent\u2019s death. He contends, however, that the underinsured motorist coverage contained in his automobile insurance policy also falls within the exception to the limitations statute. We disagree.\nThe language of N.C. Gen. Stat. \u00a7 28A-19-3(i) provides an exception to the limitations statute only for claims where there is insurance under which the decedent was an insured. Plaintiffs underinsured motorist coverage protected himself only and not the decedent. In addition, the right to recover under an \u201cuninsured motorist endorsement is derivative and conditional.\u201d Brown v. Casualty Co., 285 N.C. 313, 319, 204 S.E. 2d 829, 834 (1974). Unless an insured is \u201c \u2018legally entitled to recover damages\u2019 . . . from the uninsured motorist the contract upon which he sues precludes him from recovering against [the insurance company].\u201d Id. The insurance company assumes liability only for damages that an insured may recover in a court of law in an action against the uninsured motorist. Id. at 320, 204 S.E. 2d at 834. \u201cAny defense available to the uninsured tort-feasor should be available to the insurer.\u201d Id. at 319, 204 S.E. 2d at 834. We believe the sam\u00e9 principles should apply to underinsurance provisions.\nAll that plaintiff may recover from the underinsured decedent is the $25,000.00 coverage the decedent had under his policy with Nationwide. Since plaintiff is only legally entitled, by statute, to recover this amount and nothing more from the decedent, he may not bring a claim for a greater amount against Nationwide under his underinsured motorist endorsement. Accordingly, we hold that the trial court properly dismissed all claims against Nationwide and limited plaintiffs claim to $25,000.00.\nPlaintiff next argues that the trial court erred in dismissing the action against defendants on the grounds that defendants lacked the capacity to be sued. We disagree.\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 . . . against such person . . . shall survive to and against the personal representative or collector of the estate.\u201d (Emphasis added.) This statute serves a twofold purpose: \u201c(1) To declare what causes of action survive the death of the person in whose favor or against whom they have accrued; and (2) to designate the persons who may sue or be sued upon such surviving causes of action.\u201d McIntyre v. Josey, 239 N.C. 109, 110, 79 S.E. 2d 202, 203 (1953) (emphasis added).\nIn addition, N.C. Gen. Stat. \u00a7\u00a7 28A-ll-3(a)(4) and 28A-13-3(a) (15) provide that collectors and personal representatives respectively may defend actions against an estate. A collector by affidavit, however, has no such authority under N.C. Gen. Stat. \u00a7 28A-25-3, which lists the duties of a collector by affidavit. The \u2022procedure for collection of property'by affidavit provides an informal means of collecting and distributing the property of a small estate with less than $10,000.00 in property. N.C. Gen. Stat. \u00a7 28A-25-1 (1984).\nIn the case at bar, plaintiff was required by N.C. Gen. Stat. \u00a7 28A-18-1 to bring his action against the collector or personal representative. He filed his action against defendants in their representative capacity as collectors. Defendants were merely collectors by affidavit under N.C. Gen. Stat. \u00a7 28A-25-1. Since plaintiff failed to bring his action against the proper party or parties, his action against defendants was properly dismissed.\nFinally, plaintiff argues that the trial court erred in denominating its order as one for partial summary judgment. We agree with plaintiffs contention; however, we find no reversible error.\nThe trial judge below granted summary judgment as to the issues argued by defendants at the summary judgment hearing. This order fully disposed of all plaintiffs claims against defendants and Nationwide and barred plaintiff from any further proceedings against these parties on these issues. The only issue left from plaintiffs complaint is his request that an administrator be appointed for decedent\u2019s estate. A superior court judge lacks jurisdiction to appoint an administrator, because the original and exclusive jurisdiction to appoint administrators lies with the clerk of superior court. In re Estate of Adamee, 291 N.C. 386, 230 S.E. 2d 541 (1976); N.C. Gen. Stat. \u00a7 28A-2-1 (1984). Therefore, the trial court erred in denominating its order as one for partial summary judgment because there were no issues left to be decided in this action. Mislabeling the judgment as \u201cpartial\u201d was not reversible error because the trial court\u2019s substantive rulings were correct.\nWe hold that the order of the trial court should be affirmed, even though erroneously denominated as one for partial summary judgment.\nAffirmed.\nJudges Parker and Greene concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Howard, From, Stallings & Hutson by John N. Hutson, Jr., for plaintiff appellant.",
      "Bailey, Dixon, Wooten, McDonald, Fountain & Walker by Gary S. Parsons and Alan J. Miles for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "DONALD A. BRACE v. DONALD C. STROTHER, SR., AND MARY G. STROTHER, Collectors of the Estate of Donald C. Strother, Jr. (deceased)\nNo. 8710SC699\n(Filed 31 May 1988)\n1. Executors and Administrators 8 19.1\u2014 claim against decedent arising from auto accident \u2014 failure to file within six months \u2014 all claims in excess of amount of insurance dismissed\nThe trial court in a personal injury action properly dismissed all of plaintiffs claims in excess of $25,000 where plaintiff\u2019s claim arose on 2 July 1984, the day of the automobile accident and defendants' son\u2019s death; pursuant to N.C.G.S. \u00a7 28A-19-3, plaintiff had an outside time limit of six months, until 2 January 1985, to file an action against decedent\u2019s estate; and since plaintiff did not initiate this action until 13 June 1986, he was clearly barred from recovering anything from decedent\u2019s estate except \u201cto the extent that the decedent . . . [was] protected by insurance coverage with respect to such claim.\u201d\n2. Executors and Administrators \u00a7 19.1; Insurance \u00a7 69\u2014 claim against decedent arising from auto accident \u2014 failure to file within six months \u2014 no coverage under plaintiffs underinsured motorist coverage\nThere was no merit to plaintiffs contention that the underinsured motorist coverage contained in his automobile insurance policy fell within the exception to the six-month limitations period of N.C.G.S. \u00a7 28A-19-3, since that statute provides an exception to the limitations statute only for claims where there is insurance under which the decedent was an insured, and plaintiffs underinsured motorist coverage protected him only and not the decedent; moreover, since plaintiff was only legally entitled, by statute, to recover $25,000 and nothing more from decedent, he could not bring a claim for a greater amount against defendant insurance company under his underinsured motorist endorsement.\n3. Executors and Administrators 8 9\u2014 parents of decedent as collectors of decedent\u2019s property by affidavit \u2014 suit against parents improper\nPlaintiffs personal injury action against defendants, parents of the driver of the automobile in which plaintiff was a passenger, was properly dismissed, since defendants were merely collectors by affidavit of decedent\u2019s estate, and plaintiff was required to bring his action against the collector or personal representative of decedent. N.C.G.S. \u00a7 28A-25-1.\nAppeal by plaintiff from Barnette, Judge. Order entered 12 March 1987 in Superior Court, WAKE County. Heard in the Court of Appeals 5 January 1988.\nHoward, From, Stallings & Hutson by John N. Hutson, Jr., for plaintiff appellant.\nBailey, Dixon, Wooten, McDonald, Fountain & Walker by Gary S. Parsons and Alan J. Miles for defendant appellees."
  },
  "file_name": "0357-01",
  "first_page_order": 387,
  "last_page_order": 392
}