{
  "id": 8525834,
  "name": "JAMES HENRY NEWTON, SR., ADMINISTRATOR OF THE ESTATE OF JONATHAN LEGRANDE NEWTON, Plaintiff v. THE OHIO CASUALTY INSURANCE COMPANY, Defendant and Third-Party Plaintiff v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Third-Paety Defendant",
  "name_abbreviation": "Newton v. Ohio Casualty Insurance",
  "decision_date": "1988-09-20",
  "docket_number": "No. 8820SC253",
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  "casebody": {
    "judges": [
      "Judges ORR and Smith concur."
    ],
    "parties": [
      "JAMES HENRY NEWTON, SR., ADMINISTRATOR OF THE ESTATE OF JONATHAN LEGRANDE NEWTON, Plaintiff v. THE OHIO CASUALTY INSURANCE COMPANY, Defendant and Third-Party Plaintiff v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Third-Paety Defendant"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nPlaintiff attempts to bring this appeal as a declaratory judgment action to determine the maximum liability owed by Ohio Casualty and Hartford to plaintiff under their respective automobile liability policies. We find no present actual controversy sufficient to sustain jurisdiction under the Declaratory Judgment Act and, accordingly, we dismiss the appeal.\nAn actual controversy between adverse parties is a jurisdictional prerequisite for a declaratory judgment. Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E. 2d 59 (1984). Provided an actual controversy exists, the liability of an insurance company pursuant to its insurance contract is properly the subject of a declaratory judgment. Ramsey v. Interstate Insurors, Inc., 89 N.C. App. 98, 365 S.E. 2d 172, disc. rev. denied, 322 N.C. 607, 370 S.E. 2d 248 (1988). Our case law, however, recognizes the difficulty in determining whether a justiciable controversy exists. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E. 2d 25 (1986).\nThe Supreme Court in Sharpe stated that a justiciable controversy exists where \u201clitigation appear[s] unavoidable.\u201d Id. at 589, 347 S.E. 2d at 32. In determining when litigation is unavoidable, the Sharpe court quoted an earlier opinion which distinguished those certain and definite events which give rise to declaratory judgments from those \u201cremote, contingent, and uncertain events that may never happen and upon which it would be improper to pass as operative facts.\u201d (Emphasis in original.) Id. at 590, 347 S.E. 2d at 32 (quoting Consumers Power v. Power Co., 285 N.C. 434, 451, 206 S.E. 2d 178, 189 (1974)). We may also look to federal court decisions in determining the justiciability issue. Id. at 584, 347 S.E. 2d at 29.\nIn Bellefonte Reinsurance Co. v. Aetna Cas. and Sur. Co., 590 F. Supp. 187 (S.D.N.Y. 1984), plaintiffs, defendant\u2019s reinsurers, instituted a declaratory judgment action pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. section 2201, to determine their rights and liabilities under various reinsurance contracts with defendant. Plaintiffs\u2019 liability under the contracts, however, was predicated upon Aetna\u2019s liability to its insured, which was unresolved at the time. The district court held that no \u201cpresent and unconditional danger\u201d had been shown, but rather the danger was \u201ccontingent upon the happening of certain future or hypothetical events.\u201d Id. at 191. Because Aetna was not then liable to its insured, the court found that the action did not constitute an actual controversy and dismissed the case without prejudice.\nHere the issue of liability has yet to be resolved. Ohio Casualty has presented defenses which could completely bar plaintiffs recovery. If Ohio Casualty was found not liable, an opinion here would be \u201ca purely advisory opinion which the parties might . . . put on ice to be used if and when occasion might arise.\u201d Tryon v. Power Co., 222 N.C. 200, 204, 22 S.E. 2d 450, 453 (1942). This we may not do.\nIn addition, should we not view this matter as a declaratory judgment action, the appeal still must be dismissed. All of the issues between all of the parties have not been decided and, therefore, this action is interlocutory and subject to dismissal. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978).\nFor the foregoing reasons we dismiss plaintiffs appeal.\nDismissed.\nJudges ORR and Smith concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Dawkins & Nichols, by Donald M. Dawkins, for plaintiff-appellant.",
      "Etheridge, Moser and Garner, by Kennieth S. Etheridge and Jerry L. Bruner, for defendant-appellee.",
      "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by D. James Jones, Jr. and Theodore B. Smyth, for third-party defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "JAMES HENRY NEWTON, SR., ADMINISTRATOR OF THE ESTATE OF JONATHAN LEGRANDE NEWTON, Plaintiff v. THE OHIO CASUALTY INSURANCE COMPANY, Defendant and Third-Party Plaintiff v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Third-Paety Defendant\nNo. 8820SC253\n(Filed 20 September 1988)\nDeclaratory Judgment Act \u00a7 4.3\u2014 automobile liability insurance \u2014 two insurers\u2014 maximum liability of each \u2014 no justiciable controversy\nPlaintiff could not seek a declaratory judgment to determine the maximum liability owed by defendant insurers to plaintiff under their respective automobile liability policies prior to a jury trial on the merits of plaintiffs claim against the insurers, since there was no justiciable controversy; moreover, all of the issues between all of the parties had not been decided, and the appeal was therefore interlocutory and subject to dismissal.\nAppeal by plaintiff from Davis (James CJ, Judge. Judgment entered 30 November 1987 in Superior Court, Richmond County. Heard in the Court of Appeals 1 September 1988.\nPlaintiff brought these actions to recover under the underin-surance provisions of two separate automobile liability policies. Jonathan Newton, plaintiffs intestate, died in a single car accident on 20 April 1985 while riding as a passenger in a non-owned vehicle driven by Hogan Larry Spencer. Spencer\u2019s insurer paid plaintiff the limits of its liability, $25,000, for the death of his intestate.\nPlaintiff then instituted two separate suits against his insurers, The Ohio Casualty Insurance Co. (Ohio Casualty), 86-CVS-480, and Hartford Accident and Indemnity Company (Hartford), 86-CVS-479. Each insurer answered and alleged specific defenses to plaintiffs claims. In 86-CVS-480 Ohio Casualty named Hartford as a third-party defendant claiming that in the event that it was found liable Hartford should contribute one-half of any award.\nOhio Casualty and Hartford both moved for partial summary judgment on the issue of the maximum liability each company might owe plaintiff. The trial court granted partial summary judgment in favor of Ohio Casualty and Hartford ordering that any recovery from defendants be limited to a maximum of $12,500 from each insurer. Plaintiff appealed. The trial court stayed the proceedings in 86-CVS-479 against Hartford pending plaintiffs appeal. The parties want the insurers\u2019 respective liability established by declaratory judgment prior to a jury trial on the merits of plaintiffs claim.\nDawkins & Nichols, by Donald M. Dawkins, for plaintiff-appellant.\nEtheridge, Moser and Garner, by Kennieth S. Etheridge and Jerry L. Bruner, for defendant-appellee.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by D. James Jones, Jr. and Theodore B. Smyth, for third-party defendant-appellee."
  },
  "file_name": "0421-01",
  "first_page_order": 449,
  "last_page_order": 452
}