{
  "id": 2507687,
  "name": "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. KENNETH W. BLACKWELDER, Executor of the Estate of Clyde Willard Blackwelder",
  "name_abbreviation": "State Farm Mutual Automobile Insurance v. Blackwelder",
  "decision_date": "1992-07-17",
  "docket_number": "No. 404PA91",
  "first_page": "135",
  "last_page": "140",
  "citations": [
    {
      "type": "official",
      "cite": "332 N.C. 135"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "406 S.E.2d 301",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1991,
      "opinion_index": -1
    },
    {
      "cite": "103 N.C. App. 656",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8522982
      ],
      "year": 1991,
      "opinion_index": -1,
      "case_paths": [
        "/nc-app/103/0656-01"
      ]
    },
    {
      "cite": "51 ALR2d 697",
      "category": "reporters:specialty",
      "reporter": "A.L.R. 2d",
      "opinion_index": -1
    },
    {
      "cite": "387 S.E.2d 203",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1990,
      "opinion_index": 0
    },
    {
      "cite": "97 N.C. App. 101",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8519701
      ],
      "year": 1990,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/97/0101-01"
      ]
    },
    {
      "cite": "374 S.E.2d 844",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1988,
      "opinion_index": 0
    },
    {
      "cite": "323 N.C. 528",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2563588
      ],
      "year": 1988,
      "opinion_index": 0,
      "case_paths": [
        "/nc/323/0528-01"
      ]
    },
    {
      "cite": "269 S.E.2d 191",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "48 N.C. App. 297",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550270
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/48/0297-01"
      ]
    },
    {
      "cite": "82 S.E.2d 362",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1954,
      "opinion_index": 0
    },
    {
      "cite": "240 N.C. 441",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601663
      ],
      "year": 1954,
      "opinion_index": 0,
      "case_paths": [
        "/nc/240/0441-01"
      ]
    },
    {
      "cite": "130 S.E.2d 645",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 317",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560393
      ],
      "year": 1963,
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0317-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 488,
    "char_count": 12416,
    "ocr_confidence": 0.786,
    "pagerank": {
      "raw": 9.896602053381583e-08,
      "percentile": 0.5353887427413722
    },
    "sha256": "507094dda2b1de5daa5d5e196c19befc73cdfd5afa19a63a61fa21edf948a4f3",
    "simhash": "1:3b701d72256976d2",
    "word_count": 1969
  },
  "last_updated": "2023-07-14T21:54:56.199642+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. KENNETH W. BLACKWELDER, Executor of the Estate of Clyde Willard Blackwelder"
    ],
    "opinions": [
      {
        "text": "WEBB, Justice.\nThe defendant contends that the dismissal with prejudice of Mrs. Sargeant\u2019s Watauga County case against the defendant extinguished as a matter of law all claims against the defendant arising from the 21 March 1988 accident, whether such claims were asserted on behalf of Mrs. Sargeant or her subrogee, State Farm. The defendant argues that Mrs. Sargeant and State Farm were entitled to bring only one civil action against the defendant for Sargeant\u2019s injuries. By participating in the dismissal with prejudice of Sargeant\u2019s claim, State Farm had its subrogation rights extinguished. The defendant contends that State Farm has no right and no claim beyond that possessed by Mrs. Sargeant. We disagree.\nN.C.G.S. \u00a7 20-279.21(b)(4) provides in pertinent part:\nAn underinsured motorist insurer may at its option, upon a claim pursuant to underinsured motorist coverage, pay moneys without there having first been an exhaustion of the liability insurance policy covering the ownership, use, and maintenance of the underinsured highway vehicle. In the event of such payment, the underinsured motorist insurer shall be either: (a) entitled to receive by assignment from the claimant any right or (b) subrogated to the claimant\u2019s right regarding any claim the claimant has or had against the owner, operator, or maintainer of the underinsured highway vehicle, .... No insurer shall exercise any right of subrogation . . . where the insurer has been provided with written notice in advance of a settlement between its insured and the underinsured motorist and the insurer fails to advance a payment to the insured in an amount equal to the tentative settlement within 30 days following receipt of such notice. Further, the insurer shall have the right, at its election, to pursue its claim by assignment or subrogation in the name of the claimant, and the insurer shall not be denominated as a party in its own name except upon its own election.\nHere, State Farm preserved its subrogation rights against the defendant by pursuing this claim in the manner as set forth in N.C.G.S. \u00a7 20-279.21(b)(4). On 24 April 1989, State Farm advanced $50,000, the amount of Nationwide\u2019s liability limits, to Mrs. Sargeant to protect its subrogation interests. On 6 November 1989, it advanced an additional $50,000 to settle the underinsured motorist claim. As of that time, Nationwide had paid nothing whatsoever under its primary liability policy issued to Mr. Blackwelder.\nBy complying with the express terms of the statute, State Farm had the absolute right to pursue \u201cany claim\u201d against the defendant that Mrs. Sargeant \u201chas or had.\u201d It was not necessary for State Farm to prosecute the Watauga County action in Mrs. Sargeant\u2019s name, nor was it necessary that that action remain pending for State Farm to pursue a recovery. It is clear under N.C.G.S. \u00a7 20-279.21(b)(4) that once the advancement is made and the underinsured claim is settled prior to exhaustion of the primary policy limits, the underinsured motorist carrier is pursuing \u201cits claim\u201d and not that of the insured. The underinsured motorist carrier is not required to be designated as a party plaintiff \u201cexcept upon its own election.\u201d State Farm has elected to pursue its claim in its own name as provided by the statute.\nIn conjunction with the settlement of the underinsured motorist claim, State Farm obtained a release from Mrs. Sargeant discharging State Farm from any claims Mrs. Sargeant had against State Farm. This release discharged State Farm only, not Nationwide. The release also acknowledged State Farm\u2019s subrogation rights and assigned to it (to the extent of its payment) all of Sargeant\u2019s claims against Blackwelder\u2019s estate. Sargeant further agreed that any claims of State Farm pertaining to the accident could be presented in her name or in State Farm\u2019s name. Thus, State Farm had the absolute statutory right to pursue a claim against the defendant in the amount of $50,000, the amount of its underinsured payment. As both defendant and Nationwide had knowledge of State Farm\u2019s subrogation rights, they could not defeat State Farm\u2019s rights by any subsequent release from Mrs. Sargeant.\nMrs. Sargeant\u2019s dismissal did not terminate State Farm\u2019s subrogated claim because the claim against the defendant had already passed to State Farm by operation of law. The right to recover from the defendant was and is still vested in State Farm and by statute, State Farm may pursue \u201cits claim\u201d in its own name \u201cat its election.\u201d Mrs. Sargeant could not dismiss, release, or waive State Farm\u2019s right to recover as she does not possess such right.\nThe defendant relies on several cases which it says establish the proposition that subrogation is based on equitable principles and a subrogee stands in the shoes of the subrogor. See Insurance Co. v. Faulkner, 259 N.C. 317, 130 S.E.2d 645 (1963); Montsinger v. White, 240 N.C. 441, 82 S.E.2d 362 (1954); Mace v. Construction Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980). When Mrs. Sargeant released the defendant, he says this extinguished the claim of the plaintiff. The defendant also relies on N.C. Baptist Hospitals, Inc. v. Mitchell, 323 N.C. 528, 374 S.E.2d 844 (1988) and Harris-Teeter Super Markets v. Watts, 97 N.C. App. 101, 387 S.E.2d 203 (1990), for the proposition that a claim for negligence may not be assigned. These cases dealing with subrogation and the assignment of claims do not deal with N.C.G.S. \u00a7 20-279.21(b)(4) and have no application to this case.\nThe defendant also contends that the claim against him is barred under N.C.G.S. \u00a7 28A-19-3(b) which provides in part:\nAll claims against a decedent\u2019s estate which arise at or after the death of the decedent, . . . are forever barred against the estate, . . . unless presented to the personal representative ... as follows:\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.\nIn this case the testate lived for twenty-four hours after the accident from which the claim arose. The claim arose before the death of Mr. Blackwelder and the claim is not barred by this section.\nHaving followed the statutory procedures in N.C.G.S. \u00a7 20-279.21(b)(4), State Farm is entitled to pursue its claim against the defendant.\nAffirmed.",
        "type": "majority",
        "author": "WEBB, Justice."
      }
    ],
    "attorneys": [
      "Hartsell, Hartsell & Mills, P.A., by W. Erwin Spainhour, for defendant appellant.",
      "Hutchins, Tyndall, Doughton & Moore, by Kent L. Hamrick, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. KENNETH W. BLACKWELDER, Executor of the Estate of Clyde Willard Blackwelder\nNo. 404PA91\n(Filed 17 July 1992)\n1. Insurance \u00a7 464 (NCI4th)\u2014 underinsured motorist payment \u2014 subrogation right \u2014injured party\u2019s dismissal of claim against tortfeasor\u2019s estate\nAn injured party\u2019s dismissal with prejudice of her claim against the tortfeasor\u2019s estate for injuries received in an automobile accident did not extinguish plaintiff automobile insurer\u2019s subrogation right against the tortfeasor\u2019s estate for the underinsured motorist payment it made to the injured party, its insured, where the tortfeasor\u2019s liability insurer stated that it would tender its $50,000 liability limit to plaintiff\u2019s insured at the appropriate time; plaintiff advanced $50,000 to its insured to protect its subrogation interest; plaintiff then paid its $50,000 underinsured motorist limit to its insured and indicated to the tortfeasor\u2019s estate and liability insurer that it would not release its subrogation right against the estate; plaintiff\u2019s insured released plaintiff from all claims arising from the accident in consideration for the $100,000 it had paid to her, and the release acknowledged plaintiff\u2019s subrogation right; the tortfeasor\u2019s liability insurer paid its $50,000 liability limit to plaintiff\u2019s insured, who released all claims against the tortfeasor\u2019s liability insurer and dismissed with prejudice her action against the tortfeasor\u2019s estate; this $50,000 was deposited into plaintiff\u2019s account; and plaintiff filed this action to recover its underinsured motorist payment from the tortfeasor\u2019s estate. Plaintiff preserved its subrogation right against the tortfeasor\u2019s estate in the manner set forth in N.C.G.S. \u00a7 20-279.21(b)(4), and this subrogation right had already passed to plaintiff by operation of law at the time the injured party dismissed her claim and could be pursued by plaintiff in its own name at its election.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 439, 441.\nRights and remedies of insurer paying loss as against insured who has released or settled with third person responsible for loss. 51 ALR2d 697.\n2. Executors and Administrators \u00a7 103 (NCI4th)\u2014 subrogation claim against estate \u2014 statute of limitations\nPlaintiff underinsured motorist insurer\u2019s subrogation claim against the tortfeasor\u2019s estate was not barred by N.C.G.S. \u00a7 28A-19-3(b) since the tortfeasor lived for twenty-four hours after the accident from which the claim arose, and the claim - thus arose before rather than at or after the tortfeasor\u2019s death.\nAm Jur 2d, Executors and Administrators \u00a7 584.\nOn petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of the decision of the Court of Appeals, 103 N.C. App. 656, 406 S.E.2d 301 (1991), reversing the trial court\u2019s grant of defendant\u2019s motion for summary judgment entered by Davis, J., in the Superior Court, CABARRUS County, on 21 August 1990 and remanding for trial. Heard in the Supreme Court 10 March 1992.\nOn 21 March 1988 Maureen Sargeant was seriously injured when her car, in which she was a passenger, was struck head-on by a vehicle driven by Clyde Willard Blackwelder. Mr. Blackwelder died the next day as a result of the accident. The plaintiff, State Farm Mutual Insurance Company (hereinafter \u201cState Farm\u201d), insured the Sargeant automobile and provided underinsured motorist coverage in the amount of $100,000. Nationwide Mutual Insurance Company (hereinafter \u201cNationwide\u201d) provided liability coverage of $50,000 on Blackwelder\u2019s automobile.\nIn 1988, Maureen Sargeant filed suit against the Blackwelder estate seeking damages for her personal injuries arising from this accident. On 28 March 1989, Nationwide sent a letter to Mrs. Sargeant\u2019s attorney stating that it would tender its $50,000 liability limits to Mrs. Sargeant at an appropriate time and asked that he forward the letter to State Farm so it could decide whether to advance Nationwide\u2019s $50,000 to Mrs. Sargeant and preserve its subrogation rights.\nOn 24 April 1989, State Farm advanced $50,000 to Mrs. Sargeant to protect its subrogation interest. On 6 November 1989, State Farm paid its $50,000 underinsured motorist limits to Mrs. Sargeant and indicated to Nationwide and Blackwelder\u2019s estate that it would not release its subrogation right against the estate. Mrs. Sargeant executed a release discharging State Farm from all claims arising from the 21 March 1988 accident for the stated consideration of $100,000. She agreed to hold in trust for the benefit of State Farm \u201cany and all rights of recovery which (she) now (has) . . . against any person . . . who may be legally liable . . . for any and all damages . . . which (she) sustained\u201d in the accident. She further agreed to hold in trust for or assign to State Farm \u201cthe proceeds of any settlement with or the amount of any judgment which she may obtain against any person or entity who may be legally liable to (her) for any and all damages . . . (she) may have sustained\u201d in the accident of 21 March 1988. The release further acknowledged the subrogation rights of State Farm.\nOn 26 January 1990, Nationwide paid its $50,000 liability limits to Mrs. Sargeant, who released all claims that she had against it and also dismissed her action against the Blackwelder estate with prejudice. Nationwide\u2019s draft was to Mrs. Sargeant, her attorney and State Farm. It was endorsed by Mrs. Sargeant and her attorney and deposited into State Farm\u2019s account. On 19 March 1990, State Farm filed this action to recover payment from Blackwelder\u2019s estate. The trial court granted defendant\u2019s motion for summary judgment and dismissed this action with prejudice. The Court of Appeals reversed, holding that State Farm preserved its subrogation rights against the defendant by following the statutory procedure in N.C.G.S. \u00a7 20-279.21(b)(4).\nThe defendant\u2019s petition for discretionary review was allowed by this Court.\nHartsell, Hartsell & Mills, P.A., by W. Erwin Spainhour, for defendant appellant.\nHutchins, Tyndall, Doughton & Moore, by Kent L. Hamrick, for plaintiff appellee."
  },
  "file_name": "0135-01",
  "first_page_order": 163,
  "last_page_order": 168
}