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È     ÓÕÖ×ØÙÚÛÜÝÞßàáâãäåæçèéêëìíîïðñòóôõö÷øùúûüýþÿ      !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{|}~€‚ƒ„…†‡ˆ‰Š‹ŒŽ‘’“”•–—˜™š›œžŸ ¡¢£c ð$ƒ¿Àÿ€ñ ÌÿÌfÌ™ÿÌ™™3™f3ÌfÿÌ@ñÿÿÿÿÿÿÿÿ÷ð8ó €ó €Ð ÿ Yt&Êš;2NÍÉÊš;úgþý4HdHd )0Ã`ýÿÿ¸ÿÿÿpûppû@ <ý4!d!dùß 0ÔÆ4±Ê<ý4ddddùß 0ÔÆ4±Ê<ý4BdBdùß 0ÔÆ4±Êˆ– ‰&ºBRANCHTOº262‰JºHOTSPOTTYPEº$DefinedInNavigator‰<º$DEFINEDINNAVIGATORºTrueŠÊ º___PPT9‹¬ z®˜ ¯x¬h€ÿÿ€ÿÿ€ÿÿ€ÿÿ¯{¬€ÿÿ¯|¬€ÿÿ¯€¬(€ÿÿ€ÿÿ¯„¬€ÿÿ¯…¬ €ÿÿ¯‰¬€ÿÿ¯¬€ÿÿ¯¬€ÿÿ¯¬$€ÿÿ€ÿÿ¯¬€ÿÿ¯•¬€ÿÿ¯ ¬¯ ¬€ÿÿ¯¬€ÿÿ¯›¬€ÿÿ¯¬€ÿÿ¯¬€ÿÿ¯¬¯¬T€ÿÿ€ÿÿ€ÿÿ¯ ¬€ÿÿ¯%¬€ÿÿ¯-¬€ÿÿ¯.¬(€ÿÿ€ÿÿ¯ ¬€ÿÿ¯3¬€ÿÿ¯5¬€ÿÿ¯9¬€ÿÿ¯@¬(€ÿÿ€ÿÿ¯G¬(€ÿÿ€ÿÿ¯P¬$€ÿÿ€ÿÿ¯T¬(€ÿÿ€ÿÿ¯Z¬€ÿÿ¯^¬€ÿÿ¯_¬€ÿÿ¯d¬(€ÿÿ€ÿÿ¯j¬$€ÿÿ€ÿÿ¯s¬€ÿÿ¯w¬$€ÿÿ€ÿÿ¯x¬€ÿÿ¯}¬€ÿÿ¯¬€ÿÿ¯ƒ¬€ÿÿ¯‹¬€ÿÿ¯Œ¬€ÿÿ¯‘¬$€ÿÿ€ÿÿ¯•¬€ÿÿ¯–¬ €ÿÿ¯—¬4€ÿÿ€ÿÿ¯¬€ÿÿ¯ž¬,€ÿÿ¯ª¬€ÿÿ¯«¬ €ÿÿ?Ù Ú%OÙ Ú=ðÁóÓ²Ÿ¨8Conference of NC Superior Court Judges Recent Decisions¡49'$$Ÿ¨)Don Cowan Smith Moore LLP 16 June 2006¡6* ó–tŸ¨ LIABILITY¡  Ÿª ó—uŸ¨Motor Vehicles¡Ÿª ó˜vŸª Ÿª ó™wŸª Ÿ lThe plaintiff was stopped at a stop sign when she was struck in the rear by the defendant s vehicle. The plaintiff introduced evidence of medical bills totaling $15,554.30. The plaintiff s treating chiropractor testified about the plaintiff s injuries. The trial court granted the plaintiff s motion for a directed verdict on the issue of contributory negligence. The jury found the defendant negligent and awarded the plaintiff $600.¡úeHdId™HdIdoHdIdGHddbbb ˜bbb nbbb FbB óšxŸª Ÿ pG.S. § 8-58.1 does create a rebuttable mandatory presumption as to the reasonableness of medical expenses. The parties did not stipulate to the plaintiff s medical expenses, therefore, this was  an issue for the jury to decide. The defendant s rebuttal evidence questioned the relationship between the medical expenses and the accident. The trial judge properly refused to give the mandatory presumption on the issue of medical damages.¡TkÚPndZ ÛPndZ zÚPndZ IPdZ mÚPndZ IPdZ dÚPndZ bbdbbb ybbb l b  b b cbª “ó›yŸª Ÿª óœzŸª Ÿ ^The plaintiff was walking home from work on 1 November 2001 at about 6:55 p.m. and was wearing dark clothes. There were no street lights in the area. The defendant testified that he  caught a glimpse of the plaintiff and that the plaintiff  came out of nowhere, walked directly into the path of my car. The trial court granted the defendant s motion for summary judgment on contributory negligence and last clear chance.¡ÎHdId›HdIdvHdrbb(bbb šbbb ubó{Ÿª Ÿ vThe evidence was clear that the plaintiff was walking on the highway with his back to traffic. The accident happened on an unlighted road and the plaintiff was wearing dark clothing. At the plaintiff s deposition, he admitted that he would not have seen the headlights on the defendant s vehicle because  they were coming behind you. Since the defendant first saw the plaintiff when the plaintiff was in front of the defendant s car and the defendant had no opportunity to avoid hitting the plaintiff, the plaintiff was contributorily negligent as a matter of law.¡î_ÚPndZ ÝÛPndZ ^bbb bWbbb b—bbb bæbBªóž|Ÿª Ÿ þThe plaintiff s evidence opposing summary judgment did not forecast any facts showing that the defendant was negligent in the operation of his vehicle, such as speeding, not keeping a proper lookout or should have seen the plaintiff. Even if the plaintiff was struck while in the road, this is not sufficient to deny the defendant s motion for summary judgment on last clear chance.¡0€Ú@nd bbóŸ}Ÿª Ÿª ó ~Ÿª Ÿ  The plaintiff alleged that he was walking along the side of the road at night when he was struck by the defendant s vehicle. The plaintiff was wearing dark clothing. He testified that he heard a  whoosh, then recalled nothing until he woke up in the hospital. Before the accident, the plaintiff had been to a ball game and drank a bottle of beer. His blood alcohol level at the hospital was .08.¡¶}HdId‰HdId‰Hd|bbb ˆbbb ˆbb󡟪 Ÿ 0The defendant testified that he saw an animal in the road. When he swerved to avoid the animal, he went off the road and struck a fence. The defendant continued driving. When he arrived at home and told his father what had happened, the defendant and his father returned to the scene of the accident and saw the plaintiff in the fence. The plaintiff told the investigating highway patrolman that he was  in the roadway at the time he was hit. The trial court refused the defendant s request to instruct on contributory negligence.¡ÀSHdZIdZlHdZIdZXHdZRbbb kbbb Wbb󢀟ª Ÿ òThe trial court should have instructed on contributory negligence. Although the plaintiff denied that he was in the road at the time he was hit, the plaintiff called the highway patrolman as a witness and relied on his testimony to establish the defendant s negligence. The jury should have had the opportunity to determine whether the plaintiff was in the road at the time he was hit. When combined with the plaintiff s intoxication and the fact that he was wearing dark clothes while walking along the road at night, contributory negligence was for the jury. The trial judge modified the sudden emergency instruction, N.C.P.I.  Div. 101.15 to state that it did not apply  if only a non-human animal is in danger. At the time of the new trial, the instruction should focus on whether the driver was  suddenly and unexpectedly confronted with imminent danger to himself or others. ¡¶ÚPndZ 'ÛPndZ DÚPndZ bbb $bbb Cbbªi󣟪 Ÿª 󤂟ª Ÿª 󥃟ª Ÿ ’The plaintiff testified that he exited I-85 onto south Main Street in Graham and entered the intersection on a green light. The defendant testified that she failed to stop for the red light and collided with the plaintiff s car. Based on the plaintiff s testimony that he  surveyed the intersection before entering it and did not see the defendant, the trial court refused to instruct on contributory negligence. The jury awarded the plaintiff $119,000.¡ |HdZIdZiHdZIdZ¹HdZIdZ)HdZ{bbb hbbb ¸bbb (bb󦄟ª Ÿ¨üThe trial judge properly refused to instruct on contributory negligence. Taking the evidence in the light most favorable to the defendant, the evidence fails to show that the plaintiff could have done anything to avoid the accident or that there was anything to put the plaintiff on notice that the defendant would fail to stop at the red light.   The defendant testified that she was not traveling at a high rate of speed and did not enter the intersection until the plaintiff had turned in front of her.¡ŠIÚ@nd ´Û@nd Hbbb bb Ÿbbó§…Ÿª Ÿ PThe trial court abused its discretion in sanctioning the defendant. At the time the plaintiff submitted the requests to admit, discovery had not begun. The defendant had no facts upon which to consider the requests to admit relating to the plaintiff s injuries and contributory negligence. At the time of the defendant s response,  reasonable grounds existed to believe that they might prevail on some matters denied. ¡ÐDÚ@nd eI@d Cbbb Tbbb Šbbb bb󨆟¨Premises¡  Ÿª 󩇟ª Ÿª 󪈟ª Ÿ 4The plaintiff was pushing a shopping cart at the defendant s store. The plaintiff stopped at the meat counter and walked to a soft drink display. After picking up a bottle, the plaintiff turned to walk back to his shopping cart. The plaintiff s knee struck a stock cart. The plaintiff testified that he did not see the cart and that it was  hidden. The stock cart was lower than the plaintiff s knee. The plaintiff left the store without reporting the injury. The trial court granted the defendant s motion for a directed verdict.¡ž“HdZIdZSHdZIdZzHdZIdZ4HdZIdZ;HdZIdZGHdZ’bbb Rbbb ybbb 3bbb :bbb Fbb󫉟ª Ÿ¨}On the issue of negligence, the plaintiff produced no evidence concerning who placed the cart in its position, when it was placed there or how long it remained in that position. Vendors at the store had access to the stock cart. There was also no evidence as to how long the stock cart had been in the position and whether the defendant knew or should have known of its position.¡„~Ú@nd ±bbb 2bbb –bb󬊟ª Ÿª ó­‹Ÿª Ÿ ¬The plaintiff was employed at Belk s at the Oak Hollow Mall in High Point. A heavy snow had fallen on 25 and 26 January 2004. As the plaintiff left work and was walking to her car in the parking lot, she slipped on ice and fell. At her deposition, the plaintiff testified that she knew the condition of the parking lot and had told another employee that  somebody s going to get killed out there. The trial court granted the defendant s motion for summary judgment.¡BKHdId3HdIdgHdId©HdIdEHdJbbb 2bbb fbbb ¨bbb Dbb󮌟ª Ÿ X There is no duty to warn the plaintiff of conditions of which she was aware and of which she had superior knowledge to the defendant.    A landowner is under no duty to protect a visitor against dangers either known or so obvious and apparent that they reasonably may be expected to be discovered. ¡`-I@d `…bb b £b`ªˆ¤ó¯Ÿª Ÿª ó°ŽŸª Ÿ ”The plaintiff fell and was injured at Handee Hugo s on 18 April 2001. The plaintiff was contacted by an adjuster for Federated Mutual Insurance Company and told that the Federated insureds were Handee Hugo s and Sampson-Bladen, the operator of the store. Suit was filed on 29 March 2004 against Handee Hugo s and Sampson-Bladen.¡¶FHdId¹HdIdJHdEbbb ¸bbb IbbªP%ˆ _󱟪 Ÿ ~The defendant filed a motion to dismiss on the grounds that the store was leased and operated by United Energy. On 19 July 2004, the plaintiff filed a motion to amend to add United Energy as an additional defendant. The trial court denied the plaintiff s motion to amend and allowed the defendant s motion to dismiss.¡¶pHdIdhHdIdfHdobbb gbbb ebb󲟪 Ÿ 0Hatcher v. Flockhart Foods (NC App 2003) and equitable estoppel did not apply. In Hatcher, there was  active misrepresentation as to the insured and there was no public record as to the responsible party. In the present case, a search of the Register of Deeds would have identified the owner of the store. Although the Court of Appeals found  the misrepresentation reprehensible, dismissal was affirmed.¡Þ™ÚPndZ b4bbb bbtbbb dbbb bbbª, #Zó#Ÿª Ÿª ó$Ÿª Ÿ ÞDefendants owned boat ramp on the Cape Fear River. Plaintiff was in a boat and using the boat ramp to get off the river as a storm approached. While the plaintiff was waiting at the boat ramp, a tree fell on the plaintiff causing injuries that rendered the plaintiff a paraplegic. The plaintiff s expert testified that the tree that fell was extensively decayed and showed evidence of the decay through many dead branches. The trial court granted the defendants motion for summary judgment.¡Ì3ZZ\ZZŠZZÔZ3\‰ÿþŽD ó%Ÿª Ÿ  The defendants had a duty to exercise reasonable care concerning natural conditions such as trees on their land. The defendants were liable  only if they had actual or constructive notice of a dangerous natural condition existing upon their land. The tree that fell on the plaintiff had  broken off once before the date of the plaintiff s injury and showed signs of decay. There was a genuine issue of material fact on the issue of the defendants negligence.¡\ÑÚPndZ q‡Wó&Ÿª Ÿª ó'Ÿª Ÿ @The plaintiff was shopping at the Food Lion store when she was struck by a buffing machine operated by Robinson who was wearing ear phones. Robinson had previously knocked down orange cones at the front of the store. The plaintiff sued Food Lion, Budget Services (the company contracting with Food Lion to maintain the floors), Frank s Floor Care (the company contracting with Budget Services to maintain the floors) and Amron Janitorial (the employer of Robinson). The trial court granted the motions for summary judgment of all defendants.¡vŒZZ”ZŒMùKó(Ÿª Ÿ ¢As to the plaintiff s argument on appeal that Robinson was the agent or employee of the defendants, this relationship had not been pleaded in the complaint. The plaintiff may not make a different legal argument on appeal that was not made in the pleadings or before the trial court. Since neither Budget Services nor Frank s Floor Care owned or operated the store, they had no duty to the plaintiff and may not be held liable under a theory of premises liability.¡\Ú@nd Û@nd µÚ@nd µó)Ÿª Ÿ¨·As owner of the store, Food Lion had a duty to keep the premises safe and warn the plaintiff of hidden dangers. There were genuine issues of material fact as to whether: (a) Food Lion warned the plaintiff of the buffing; (b) Food Lion used ordinary care in providing safe premises; (c) the buffing machine presented an obvious danger; and (d) a reasonably prudent person should have noticed the buffing machine and avoided the collision.¡¸Ú@nd ¸ó³‘Ÿ¨ Employment¡  Ÿª ó´’Ÿª Ÿª 󵓟ª Ÿ¨ÈOmega Meats sold meat products through independent contractor salesmen. The salesmen rented refrigerator trucks and attempted to sell the meat door to door. Omega did not supervise the salesmen and did not identify areas for meat to be sold. Smith, an independent contractor salesman, had been convicted of robbery and kidnapping. He served a prison sentence for these crimes. Omega did not conduct a background check on Smith before he was employed. ¡ŠHHdIdHdHUÿþUÓ ó¶”Ÿª Ÿ þSmith parked his refrigeration truck in the driveway next to the plaintiffs house. He broke into the plaintiffs house and assaulted the plaintiffs. The trial court granted Omega s motion for a directed verdict at the close of the plaintiffs evidence.¡.HdZ—hó·•Ÿª Ÿ ¸Omega owned no duty to the plaintiffs. Smith was not in the plaintiffs home as a result of any activities on behalf of Omega. Employers do not owe a legal duty to  victims of their independent contractors intentional torts that bear no relationship to the employment. Even if Omega were negligent in hiring Smith, Smith s employment  did not advance his criminal endeavor in any manner. The result would have been the same if Smith had not been driving an Omega truck.¡\ÝÚPndZ 'XËó¸–Ÿ¨ INSURANCE¡  Ÿª ó- Ÿ¨ Motor Vehicle¡Ÿª ó. Ÿª Ÿª ó/ Ÿª Ÿ  Ms. Norris, the Nationwide insured, was in the process of purchasing a 1997 Blazer, when she was involved in an automobile accident with the plaintiff. All paperwork for the purchase of the Blazer had been completed, but title to the Blazer had not been transferred to the insured. The trial court granted the plaintiff s motion for summary judgment finding that Nationwide had coverage. ¡f‡Ú§d˜‚Cÿþ& ó0 Ÿª Ÿ ºUnder G.S. § 20-72(b), all cars which are not owned are insured except those furnished for the regular use of the insured or his relative. Because at the time of the accident, the Blazer was not furnished for the insured s regular use and title had not been transferred, the Nationwide exclusion did not apply. There was coverage for the accident.¡Z^ÚPndZ  ÿþ}ÿþÒó1Ÿª Ÿª ó2Ÿª Ÿ êAt the time of the accident, Mollie Draughon was operating her mother-in-law s Ford Explorer. Mollie Draughon and her husband lived next door to Betty Draughon. The Explorer was always parked in the common driveway between the two houses. Mollie and her husband had 3 keys to the Explorer and did not have to ask for permission to use it. Mollie Draughon testified that she drove the Explorer two or three times a week to run errands, go to work and take Betty Draughon to places she needed to go.¡f^ZZ—Z^÷ÿþž ó3Ÿª Ÿ èMollie Draughon and her husband were insured by Farm Bureau. The Farm Bureau policy excluded coverage for vehicles furnished for the insured s regular use. The trial court granted Farm Bureau s motion for summary judgment finding no coverage.¡(õWó4Ÿª Ÿ "Factors to be considered in determining whether a vehicle is furnished for the regular use of the insured are: (1) availability of the vehicle to the insured; and (2) frequency of use by the insured.  Where an insured driver has the unrestricted use and possession of an automobile, the certificate of title for which is retained by another, the car is  furnished for the regular use of the insured driver. Mollie Daughon s use of the Explorer was  consistent as well as continuing. Regular use does not require daily use.¡fÚPndZ ÉÑM'ó¹—Ÿ¨Underinsured/Uninsured¡Ÿª 󺘟ª Ÿª 󻙟ª Ÿ¨ÅThe plaintiff was a passenger in a car involved in an automobile accident in Florida on 10 August 1996. The driver of the other vehicle was uninsured. The plaintiff was covered by an uninsurance policy with Farm Bureau. Suit was brought in Florida against the uninsured driver and Farm Bureau. Service on Farm Bureau was through the North Carolina Commissioner of Insurance. Farm Bureau was dismissed from the Florida suit for lack of jurisdiction.¡ThHdZIdZ/HdZIdZEHdZIdZœHdZIdZJHdZgbbb .bbb Dbbb ›bbb Ibbª¸ 󼚟ª Ÿ 0Judgment was entered in Florida for the plaintiff against the uninsured motorist for $200,000. The present suit against Farm Bureau was to enforce the Florida judgment under N.C.G.S. § 20-279.21(b)(3) providing that the insurer shall be bound by a final judgment if the insurer had been served with a copy of the summons and complaint. The trial court granted Farm Bureau s motion for summary judgment. The Court of Appeals reversed on the grounds that Farm Bureau had been served in the Florida action and was bound by the judgment.¡&_HdZIdZñHdZIdZCHdZIdZƒHdZ^bbb Xbb—bbb Bbbb ‚bb󽛟ª Ÿ ÂSince Farm Bureau was dismissed from the Florida action for lack of jurisdiction, Farm Bureau was never a party in the Florida lawsuit. In order for N.C.G.S. § 20-279.21(b)(3) to apply, Farm Bureau would have to have been a party to the Florida action. The  mere providing of notice of the action is not sufficient for Farm Bureau to be bound. Based also on lack of jurisdiction over Farm Bureau in Florida, the action was also barred by the three-year statute of limitations since the accident occurred on 10 August 1996 and suit was not brought in North Carolina against Farm Bureau until 11 April 2002.¡ÊbÚ@nd ‡bbb bb]bbb [bbb bbó5Ÿ¨Life¡Ÿª ó6Ÿª Ÿª ó7Ÿª Ÿ JDecedent was insured under life insurance policy with CUNA that excluded coverage for  voluntary use of any drug . . . except as prescribed by a physician. The decedent was found in his living room. The autopsy report indicated that the cause of death was  methadone toxicity. ¡2&©{ó8Ÿª Ÿ ÖIn opposition to CUNA s motion for summary judgment, the decedent s estate presented the affidavit of a substance abuse counselor stating that the decedent had been counseled for alcohol and substance abuse. The affidavit did not contain  first-hand information about the decedent s use of methadone. The trial court granted CUNA s motion for summary judgment.¡(l/<ó9Ÿª Ÿ ðThe autopsy report established that the cause of death was methadone toxicity. When CUNA presented the autopsy report, the burden shifted to the decedent to demonstrate an issue of fact concerning the use of the drug being prescribed by a doctor. The counselor s affidavit was not sufficient to defeat summary judgment because it was not based on  first-hand information. ¡^xÚPndZ ÛPndZ ø~ó:Ÿ¨Exclusion for Intentional Acts¡Ÿª ó;Ÿª Ÿª ó<Ÿª Ÿ¨LInsured was charged with taking indecent liberties with a nine-year old. The State allowed the insured to plead guilty in exchange for a suspended sentence, an apology and payments of therapy bills for the child. The present declaratory judgment action arose when the child and his parents filed a civil action for sexual assault.¡DMÚ§dIŒvó=Ÿª Ÿ PThe plaintiff s policy excluded coverage for  any intentionally harmful act or omission of an insured. The trial court granted Allstate s motion for summary judgment.¡0©Ú§dh@ó>Ÿª Ÿ ®The insured pleaded guilty and apologized to the child and his family. The guilty plea  established that the defendant had the intent to commit the act.  A nonmovant may not generate a conflict simply by filing an affidavit contradicting his own sworn testimony where the only issue raised is credibility. The insured could defeat summary judgment on the issue of his intent by evidence  other than his own affidavit or deposition contradicting his own testimony. ¡¶HÚPndZ TIPdZ ÚPndZ ›ÚPndZ  IPdZ GTš     ó?Ÿ¨Independent Insurance Adjusters¡  Ÿª ó@Ÿª Ÿª óAŸª Ÿ¨ªThe home of the plaintiffs had synthetic stucco applied by Quality Stucco Systems. When the plaintiffs discovered that the stucco was defective, a claim was filed against Quality. Quality was insured by Southern Guaranty Insurance. Bell, Lewis was the adjuster for Southern Guaranty. Bell, Lewis told the plaintiffs that Southern Guaranty would pay for the cost of repairs, but only if the repair work was done by Quality.¡ĵHdId4HdId4HdId‹Hdµbb 4bb 4bb ‹bóBŸª Ÿ¨=The plaintiffs agreed. The plaintiffs were paid $10,000 and signed a general release. The repair work by Quality was also defective. The plaintiffs sued Quality, Southern Guaranty and Bell, Lewis for negligence and unfair and deceptive trade practices. The trial court dismissed all claims against all defendants.¡îWHdId/HdIdxHdId=HdVbbb /bb wbbb <bbóC Ÿª Ÿ¨%Independent adjusters owed no duty to the plaintiffs who were not the insureds of Southern Guaranty, therefore, there was no claim for negligence. Since North Carolina does not recognize a cause of action for unfair and deceptive trade practices by a third-party against an insurance company of the adverse party, the claims for unfair and deceptive trade practices were properly dismissed. The general release applied to all claims, past and future, arising from the acts of Quality, therefore, this was an additional reason supporting dismissal.¡†&ÚPndZ ’bbb óbbb œbbªE ØóD!Ÿ¨$Unfair and Deceptive Trade Practices¡%%Ÿª óE"Ÿª Ÿª óF#Ÿª Ÿ ¤An underground sewer line on the plaintiffs property ruptured on 21 February 2001 and caused property damage and personal injury to the plaintiffs. The plaintiffs filed a claim with the defendant. When the claim was not settled, suit was filed on 28 July 2004 alleging breach of contract, bad faith and unfair and deceptive trade practices. The claim for unfair and deceptive trade practices listed violations of the claims procedures in N.C.G.S. § 58-63-15(11).¡ЕHdIdÂHdIdzHd”bbb Ábbb jbbb`óG$Ÿª Ÿ¨¡The trial court dismissed the claims for breach of contract and bad faith due to the three-year statute of limitations. The trial court dismissed the unfair and deceptive trade practices claims on two grounds: (1) insufficient pleading of the Chapter 75 claim; and (2) the three-year statute of limitations applicable to the underlying facts rather than the four-year period for unfair and deceptive trade practices.¡pxHdId)Hdwbbb (bbóH%Ÿª Ÿ¨„Alleging violations of the claims handling procedures in N.C.G.S. § 58-63-15(11) is also a violation of N.C.G.S. § 75-1.1 without showing frequency or general business practice. The unfair and deceptive trade practices claim is different and separate from the breach of contract claims. The unfair and deceptive trade practices claim is governed by the four-year statute of limitations.¡’…Ú@nd Bbb.bb?bbb ÑbbóI&Ÿ¨Attorney-Client Privilege¡Ÿª óJ'Ÿª Ÿª óK(Ÿª Ÿª óL)Ÿª Ÿ öNationwide insures Bourlon under homeowners policy with limits of $300,000. Axarlis sues Bourlon alleging that one of Bourlon s dogs bit him. Claims alleged are malicious prosecution, abuse of the criminal process, and assault. Nationwide retains Lee Patterson to defend Bourlon. Nationwide tells Bourlon that policy excludes coverage for malicious prosecution and assault. ¡ÐMÎ_Lbbb˜bbb3bbb^bbóM*Ÿª Ÿ¨½Jury awards Axarlis $321,000 in compensatory and punitive damages, including $150,000 in punitive damages for the malicious prosecution claim. Post-trial, Axarlis offers to settle for $236,000. Nationwide will contribute $200,000 if Bourlon will pay $36,000. Bourlon refuses to contribute to settlement. Nationwide settles the covered claims with Axarlis. Axarlis and Bourlon reach a separate settlement of the malicious prosecution claim. ¡v½ZZbb£BBˆbbBóN+Ÿª Ÿ¨Š Bourlon requests a copy of his file from Patterson. Nationwide files the present declaratory judgment claim for a determination that it has no coverage for the malicious prosecution claim settlement. Bourlon counterclaims for bad faith, refusal to settle, and unfair and deceptive trade practices. Trial court rules that Nationwide did not have coverage for the malicious prosecution claim.¡žÊÀb4bb“bbbbbb]bóO,Ÿª Ÿ €Nationwide deposes Bourlon on the remaining claims. During Bourlon s deposition, his counsel instructs him not to answer questions concerning his communications with Patterson. Trial court rules: (1) no attorney-client relationship between Patterson and Nationwide; (2) there is attorney-client relationship between Patterson and Bourlon; and (3) Patterson breached the attorney-client relationship with Bourlon by giving his file to Nationwide.¡X²±bbbbóP-Ÿª Ÿ There was a tripartite attorney-client relationship in which Patterson represented Bourlon and Nationwide. Any communications between Patterson and Bourlon relating to  the defense for which the insurer has retained the attorney are not privileged under the  common interest doctrine. Communications between Bourlon and Patterson about the malicious prosecution claim would be privileged (such that Nationwide would not be privy to any communications).¡2ÉÚ@nd k]óQ.Ÿª Ÿ 6Any communications between Bourlon and Patterson that did not relate to the underlying action are privileged.  Communications that relate to the issue of coverage are not discoverable because the interests of the insurer and the insured with respect to the issue of coverage are always adverse. Bourlon, however, waived this privilege by allegations of bad faith and negligent representation by Patterson. Because there may have been communications in Patterson s file that were privileged as to Nationwide, Patterson should have submitted his file to the trial court in camera for the trial judge to determine whether there were privileged documents in the file.¡|*ÚPndZ rÚPndZ )o¢ W󿟨Commercial General Liability¡Ÿª óÀžŸª Ÿª óÁŸŸª Ÿ ˜The plaintiff entered into a roofing contract with the Newton-Conover Schools. As a result of the failure of temporary roofing, rain leaked into one of the schools and caused damage. The president of the plaintiff told the school system that he  would pay for the damage out of his own pocket. The defendant denied liability based on the policy provision that  No insured will, except at that insured s own cost, voluntarily make a payment, assume any obligations, or incur any expense, . . . without our consent. The trial court granted the defendant s motion for summary judgment.¡BOHdIdhHdIdpHdIdÝHdIdEHdNbbb gbbb obbb Übbb Dbb󠟪 Ÿ¨ØAs a matter of first impression, the insurer is required to show prejudice before relying on the voluntary payments exclusion. The prejudice requirement must relate to the ability to investigate or defend the claim.¡LÙÚ@nd ~bbb YbóR/Ÿ¨PRACTICE AND PROCEDURE¡Ÿª óS0Ÿ¨ Jurisdiction¡  Ÿª óT1Ÿª Ÿª óU2Ÿª Ÿ The plaintiff sent the defendant a proposal for purchase and shipment of a blood bag manufacturing machine to the plaintiff s North Carolina office. The plaintiff modified the proposal and agreed that the machine would be installed in New Jersey. The parties later agreed that the machine would be shipped to the plaintiff s facility in North Carolina. Four technicians employed by the defendant installed the machine in North Carolina. Although the trial court found jurisdiction under the long-arm statute, N.C.G.S. § 1-75.4(5)(e), the trial court dismissed the action because the defendant did not have minimum contacts to satisfy due process.¡•HdIdbHdId¿HdIdÒHd”bbb abbb ¾bbb QbbbbóV3Ÿª Ÿ À The mere act of entering a contract with a forum resident does not provide the necessary contacts when all elements of the defendant s performance are to occur outside the forum. The defendant did not attempt to benefit by entering the market in North Carolina. Although part of the plaintiff s damages related to installation of the machine in North Carolina, most of the plaintiff s damages arose from allegations that the machine was defective when shipped from New Jersey.¡†áÚPndZ ´bbb Rbbb ÖbbóW4Ÿª Ÿ âThe defendant s  passive website containing general information about the company but not allowing purchases and not  specifically targeting North Carolina residents did not subject the defendant to personal jurisdiction in North Carolina.¡òI@d òóX5Ÿª Ÿ LAppellate review of issues involving personal jurisdiction are limited to whether the findings of fact by the trial court are supported by competent evidence in the record. The trial court is not required to make findings of fact. If the trial court does not make findings of fact, the appellate court  must assume that the trial judge made factual findings sufficient to support the decision in favor of the plaintiff.¡H§ÚPndZ ­:¾óY6Ÿ¨-Statutes and Periods of Limitation and Repose¡..Ÿª óZ7Ÿª Ÿª ó[8Ÿª Ÿ  The plaintiff contracted with the defendant in 1991 to replace the roof on the plaintiff s house. The defendant guaranteed the work  for as long as you own the home. The plaintiff noticed in 2003 that part of the roof had not been sealed and that water damage had caused part of the roof to rot. Suit was filed on 11 November 2003 in small claims court. After the defendant s appeal to district court, the district court granted the defendant s motion to dismiss based on the six-year period of repose in G.S. § 1-50(a)(5).¡^bHdIdEHdId‚HdId:HdIdªHdabbb Dbbb bbb 9bbb œbb bbó\9Ÿª Ÿ FSince the suit was for money damages and not breach of warranty, the defendant s  guarantee did not apply and the six-year period of repose applied. Complying with the period of repose is a condition precedent to the right to file the claim, therefore, the plaintiff was required to establish compliance with G.S. § 1-50(a)(5). The defendant was not required to plead the period of repose as an affirmative defense. ¡v¤Ú@nd •bbb ¥bbebbó]:Ÿª Ÿ¨ÐFraud is an exception to the running of the real property statute of repose in G.S. § 1-50(a) (5)e. Fraud is not an exception to the running of the products liability statute of repose in G.S. § 1-50(a) (6).¡*ÑI@d T| ó^;Ÿ¨$Res Judicata and Collateral Estoppel¡%%Ÿª ó`=Ÿª Ÿª óa>Ÿª Ÿ øPlaintiff alleged that he was wrongfully terminated as principal and denied a hearing as required by statute. The school board conducted a hearing, then informed the plaintiff that he would be terminated unless he requested a hearing within 14 days. The plaintiff did request a hearing, but it was after the 14-day period had expired. On appeal to the superior court, the trial judge denied the plaintiff s motion to remand for a hearing before the school board. The plaintiff did not appeal this order.¡\ýZnŒUªób?Ÿª Ÿ¨<The present suit was filed in district court for breach of contract, wrongful termination and failure to follow proper administrative procedures. Because the relief requested was more than $10,000, the defendant moved to transfer to superior court. The defendant also filed a motion to dismiss based on res judicata and collateral estoppel. The defendant gave notice of the hearing on the motion to dismiss at the same time as the motion to transfer was to be heard. The trial court granted the motion to transfer to superior court, then granted the motion to dismiss.¡R=Z’Ä~fóc@Ÿª Ÿ šWhen a party has notice of a hearing, then appears at and participates in the hearing without objection, that party waives any defects in the notice of the hearing and the right to request a continuance. The prior superior court order related to the same issues pending in the present suit, therefore, the present suit was barred. The focus of the prior superior court hearing was the plaintiff s termination by the board and his claim that he was denied a proper hearing. Because the present suit is based on the same contentions, it is barred by res judicata and collateral estoppel.¡†ÍÚPndZ ÚPndZ ÛPndZ ÌódAŸ¨Pro Hac Vice Admission¡ªŸª óeBŸª Ÿª ófCŸª Ÿ¨MThe plaintiffs retained Jones to represent them in relation to the foreclosure of their house in Elizabeth City. Jones was licensed to practice law in Virginia. Jones appeared before the Clerk and requested a continuance of the hearing because he had not been able to associate North Carolina counsel. The continuance was granted.¡àqHdId0HdIdHdIdHdpbbb 0bb bb bbógDŸª Ÿ¨VJones then filed a complaint contesting the foreclosure and a motion to be admitted pro hac vice. A hearing on these motions was continued. Jones then moved for a preliminary injunction and also requested that the injunction and foreclosure motions be heard on 8 March 2004. The Clerk denied the motion to continue and ordered foreclosure.¡þbHdId*HdId‡HdIdAHdTb bbb *bb †bbb @bbªWüóhEŸª Ÿ¨4Jones filed an appeal from the order and also filed a second action on behalf of the plaintiffs. The defendants noticed the depositions of the plaintiffs. Counsel for the defendants refused to allow the depositions to be continued. The plaintiffs did not appear at the times noticed for their depositions.¡ÒaHdId:HdIdMHdIdJHd`bbb :bb Mbb JbóiFŸª Ÿ xThe defendants filed a motion for sanctions. The plaintiffs then filed a pro se complaint. The trial court denied Jones motion to be admitted. When the trial court denied the plaintiffs motion for a continuance, the plaintiffs took a voluntary dismissal without prejudice. The trial court also fined Jones $5,000 for the unauthorized practice of law and imposed sanctions against the plaintiffs for failure to appear at their depositions.¡H-HdZIdZ.HdZIdZ5HdZIdZƒHdZIdZ¦HdZ-bb bb bbb 5bb ƒbb ¥bbójGŸª Ÿ ´The trial judge did not abuse his discretion in denying Jones motion to be admitted pro hac vice. Jones had filed several motions and law suits and appeared before the Clerk without associating North Carolina counsel or being admitted to practice.  An order directing compliance with discovery is not a prerequisite to sanctions under Rule 37(d). The plaintiffs did not move for a protective order. The trial court did not abuse its discretion in imposing sanctions. ¡øcÚPndZ ˜ÛPndZ ÚPndZ ßÚPndZ Ub bbbb b•bbb ÝbbªXókHŸ¨Service¡Ÿª ópMŸª Ÿª óqNŸª Ÿ NSuit was filed for injuries received in an automobile accident. The deputy sheriff served the summons and complaint on the defendant s father at a residence in Wake County. Although the father accepted the summons and faxed it to his son in Texas, the father s affidavit in support of the defendant s motion to dismiss stated that the father told the deputy sheriff that his son had moved and accepted a new job in Texas.¡R@g@mùórOŸª Ÿ   The deputy sheriff filed a return indicating that service was completed. The trial court granted the defendant s motion to dismiss.¡2†I;ósPŸª Ÿ ÐThe deputy sheriff s return of service  indicates legal service under Rule 4(j)(1)(a), which results in a presumption of valid service of process.  More than a single contradictory affidavit is required to show improper service. ¡d”Ú@nd Û@nd TÚ@nd ”S ótQŸª Ÿª óuRŸª Ÿ VSuit was filed for injuries received in an automobile accident. The summons and complaint were sent by certified mail to the defendant at an address in San Bernadino, California. The return receipt was signed by the defendant s mother at the address to which the summons and complaint were mailed.¡R@ë@swóvSŸª Ÿ *The plaintiff filed an affidavit of service by certified mail and attached the signed return receipt. The defendant moved to dismiss and included his affidavit stating that he had not lived at the address since 2002. The trial court granted the defendant s motion to dismiss.¡<fs;ówTŸª Ÿ T By filing a copy of the signed return receipt, along with an affidavit that comports with N.C.Gen.Stat. § 1-75.10, the plaintiff is entitled to a rebuttable presumption of valid service.  Defendant s single affidavit does not rebut the presumption. The affidavit merely states that the defendant did not reside at the address. The affidavit does not discuss whether his mother was authorized to accept service for him. ¡¨½ÚPndZ ÛPndZ íÚPndZ iQ"?« óxUŸ¨Rule 9(b) - Alleging Fraud¡Ÿª óyVŸª Ÿª ózWŸª Ÿª ó{XŸ¨Rule 11 - Sanctions¡Ÿª ó|YŸª Ÿª ó}ZŸª Ÿ ®Sanctions for conduct during discovery may be awarded under Rule 11 because they relate to the insufficiency of the complaint. Sanctions for fees and expenses during discovery may be awarded after the hearing on the motion for summary judgment because the plaintiff s Rule 11 violations were not determined until the summary judgment hearing.¡JXÚ§dbb ×bbó~[Ÿª Ÿª ó\Ÿª Ÿ €After jury in another case found the defendant liable in the collapse of a pedestrian walkway at the Lowe s Motor Speedway, the trial judge ruled that the issue of liability had been established in all cases by collateral estoppel. The plaintiff in the present case alleged lost profits and diminution in future earning capacity arising from his self employment as a general contractor. The plaintiff had built one house as a general contractor. ¡2Áè×ó€]Ÿª Ÿ ÊDespite discovery requests, motions to compel and an order compelling production of the plaintiff s income tax returns, the returns were not produced until a second deposition of the plaintiff. This return had no information about the one house constructed. When the plaintiff was asked about this house and the failure to identify it on his tax return, he invoked the Fifth Amendment privilege against self-incrimination. The trial judge dismissed all claims under Rules 37 and 41.¡<æ¥<ó^Ÿª Ÿ œA trial judge s imposition of sanctions under Rule 37 is reviewed on appeal for abuse of discretion.  A civil plaintiff who invokes the Fifth Amendment to thwart discovery subjects his claim to dismissal. ¡veþPndZ ÚPndZ iþPndZ ehÿþó‚_Ÿª Ÿ ~When the plaintiff did not identify an expert as required by the court s scheduling order, the trial judge did not abuse his discretion in excluding the expert s testimony. When the plaintiff did not produce her medical records concerning previous medical treatment for her back, the trial judge did not abuse his discretion in precluding the plaintiff from introducing evidence that her back injury was caused by the pedestrian walkway collapse.¡p­þPndZ ÚPndZ þPndZ ­ÿþóƒ`Ÿ JRule 13(a)  Compulsory Counterclaims¡&&Ÿª ó„aŸª Ÿª ó…bŸª Ÿ ÎBatten entered into a contract with the plaintiff to construct a fellowship hall. Disputes arose about the quality of Batten s work. The church sent a check for $101,000 to Batten accompanied by a letter indicating that the check was  to satisfy the construction relationship. The church then rescinded the letter and agreement to resolve the differences.¡pRR3‘Nó†cŸª Ÿ .Batten filed suit in Forsyth Superior Court seeking $101,000 in damages. The trial court granted Batten s motion for summary judgment, the Court of Appeals affirmed and the Supreme Court denied review. The present suit was brought by the church in Lee County Superior Court for breach of contract. Batten filed a motion for judgment on the pleadings on the basis that the present Lee County claims were compulsory counterclaims in the Forsyth County action. The trial court denied Batten s motion and the Court of Appeals affirmed.¡l,ZZëZË` Jó‡dŸª Ÿ¨ëBoth the Forsyth and Lee County actions involved allegations about whether Batten had performed the construction in a satisfactory manner. Because the federal and state versions of rule 13(a) are identical, the court relied on federal cases for its analysis of whether counterclaims were compulsory. The court found: (1) issues of law and fact in both suits were almost the same; (2) the same evidence related to both suits; and (3) there was a logical relationship between the two suits.¡b‹ÚPndZ ÛPndZ `ÚPndZ ‹`óˆeŸ¨ Discovery¡  Ÿª ó‰fŸª Ÿª óŠgŸª Ÿª ó‹hŸª Ÿ 8The complaint alleged medical malpractice arising from the defendant s delivery of the plaintiff s child in February 2000. During the deposition of the defendant, the defendant s attorney objected and instructed the defendant not to answer questions about his history of drug abuse.¡:{ŸóŒiŸª Ÿ – The defendant then moved for a protective order, but the trial court ordered the defendant to answer questions about his drug use. The defendant had a history of drug use before delivery of the plaintiff s child. In order to obtain credentialing at the hospital, the defendant had to appear before the hospital s board, which required the defendant to submit to drug abuse monitoring. The defendant relapsed during this period and began using drugs again.¡2Ì ƒGójŸª Ÿ ÎAlthough the discovery order was interlocutory, it involved assertion of a statutory privilege and was immediately appealable. N.C.Gen.Stat. § 90-21.22 protects peer review agreements such as physicians health programs. The trial court, therefore, should have granted the defendant s motion for a protective order as to matters privileged under the statute.¡vÚ@nd Û@nd èÚ@nd Ø"óŽkŸ¨ Class Actions¡Ÿª ólŸª Ÿ VWhen plaintiffs sought to recover only future damages and did not allege  concrete and particularized and actual or imminent injury and did not request recovery for personal injury or property damage, the trial court properly granted the defendant s Rule 12(c) motion for judgment on the pleadings.¡,I@d ,ó‘nŸ¨ Arbitration¡  Ÿª ó’oŸª Ÿª ó“pŸª Ÿª ó”qŸª Ÿ¨ÈThe individual plaintiffs were shareholders in Atlantic Coast Construction & Utility (ACCU). ACCU entered into agreements with Schultes for the construction of projects awarded to Schultes. Each of the five construction project contracts contained a provision requiring arbitration of all controversies arising out of or related to the subcontract. There were negotiations for the purchase of ACCU by Schultes, but those negotiations were not successful.¡\]k]ió•rŸª Ÿ ˜Schultes then filed a complaint requiring arbitration of all claims arising out of the five subcontracts. The trial court ordered arbitration of all claims. The present complaint alleged unfair and deceptive trade practices, tortious interference with prospective business advantage and sexual harassment by an officer of Schultes against one of the shareholders of ACCU. The trial court denied Schultes motion to require arbitration of the present claims.¡JÍZ×Vó–sŸª Ÿ The trial court must first determine whether the present dispute is covered by the  substantive scope of the agreement to arbitrate, then determine whether the parties had a valid agreement to arbitrate. In the present case, the plaintiffs are not seeking benefits from the five subcontracts. The present claims of unfair and deceptive trade practices and tortious interference with contract do not depend upon the five subcontracts. Therefore, the plaintiffs cannot be required to arbitrate the present claims.¡^Ú@nd ÍÿþYNó—tŸª Ÿª ó˜uŸª Ÿ¨ŸThe plaintiffs worked with Ms. Kroening to purchase a home owned by Centex. The plaintiffs asked Ms. Kroening whether there were any plans to develop the adjoining wooded area. Ms. Kroening replied that there were no plans to develop the area. At the time of these discussions, a shopping center with a Wal-Mart store had been approved for the wooded area adjoining the home that was purchased by the plaintiffs.¡RLSL©©ó™vŸª Ÿ¨F The contract for the purchase of the home contained an arbitration clause. When the plaintiffs sued Centex and Ms. Kroening, the trial court granted the motion of Centex to compel arbitration. However, since Ms. Kroening was not a party to the arbitration agreement, the trial court denied her motion to compel arbitration.¡>GJúóšwŸª Ÿ  Although Ms. Kroening did not sign the contract,  her status as an agent of Centex affords her the right of arbitration. The basis of the plaintiffs claims relate to Ms. Kroening s representation as an agent of Centex. In order to recover against Centex, the plaintiffs must show that Ms. Kroening was acting as the agent of Centex.¡\zÚ@nd Û@nd ÖÚ@nd zÖó›xŸª Ÿ *An order denying arbitration is immediately appealable because a substantial right may be lost if appellate review is denied. When defendant s initial answer did not contain a demand for arbitration and defendant engaged in discovery including interrogatories, requests for documents and defendant s subsequent amended answer contained a demand for arbitration, defendant waived the right to arbitration.¡<–Ú@nd ~óœyŸ 8Rule 68  Offers of Judgment¡Ÿª ózŸª Ÿª óž{Ÿ RG.S. §§ 6-18, 6-19 and 6-20  Court Costs¡,*$ Ÿª óŸ|Ÿª Ÿª ó }Ÿª Ÿ ²Medical records  It was error to award these costs. They are not identified in Chapter 7A. There is no common law ground to allow. Expert witnesses at trial  These costs may be awarded under G.S. § 7A-305(d) if the witness is under subpoena. The statute limits the number of expert witnesses to two testifying on the same issue. The trial court erred by allowing fees for meeting with counsel before trial and reviewing records. Trial exhibits - There is a division among panels of the Court of Appeals. These costs are not identified in Chapter 7A and there is no common law basis to award.¡†ZÚPndZ †bb Bbbêbb ¤bbó¡~Ÿ `G.S. § 97-10.2(j)  Workers Compensation Liens¡,1+ Ÿª 󢟪 Ÿª 󣀟ª Ÿ ÀThe plaintiff was injured in the course and scope of his employment. The employer paid workers compensation benefits of $53,128.40. The plaintiff recovered the limits of the tortfeasor s liability insurance policy of $30,000 and his underinsurance policy of $20,000 for a total recovery of $50,000. The trial court extinguished the employer s lien.¡ EHdZIdZ@HdZIdZ§HdZIdZ2HdZDbbb ?bbb ¦bbb 1bbª° ¤ó¤Ÿª Ÿ 4The tri