              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-901

                                Filed: 2 February 2016

Sampson County, No. 13 CVS 474

JANICE N. PETERSON, Plaintiff,

             v.

NANCY PEARSON DILLMAN, and JACOB P. DILLMAN, Defendants.


      Appeal by unnamed defendant from order entered 18 February 2015 by Judge

W. Allen Cobb, Jr. in Sampson County Superior Court. Heard in the Court of Appeals

13 January 2016.


      Abrams & Abrams, P.A., by Douglas B. Abrams, Noah B. Abrams and Melissa
      N. Abrams and Davis Law Group, P.A., by Brian F. Davis, for plaintiff-
      appellee.

      John M. Kirby for appellant GuideOne Mutual Insurance Company.

      Jerome P. Trehy, Jr. for amicus curiae North Carolina Advocates for Justice.

      Jennifer A. Welch for amicus curiae N.C. Association of Defense Attorneys.


      TYSON, Judge.


      GuideOne Mutual Insurance Company (“GuideOne”), an unnamed defendant,

appeals from an order denying its motion for summary judgment and granting partial

summary judgment in favor of Janice N. Peterson (“Plaintiff”). The order appealed

from does not contain a Rule 54(b) certification by the trial court.
                                PETERSON V. DILLMAN

                                  Opinion of the Court



      GuideOne has failed to clearly demonstrate a substantial right, which would

be lost absent immediate appellate review. We dismiss GuideOne’s interlocutory

appeal.

                                   I. Background

      Plaintiff was employed as a home-health nurse for HomeCare Management

Services, LLC (“HomeCare”). Plaintiff drove her personal vehicle to clients’ homes to

perform healthcare services as a part of her employment. On 1 June 2011, HomeCare

purchased an insurance policy with GuideOne (“the GuideOne Policy”) which

provided liability insurance for “covered ‘autos.’” Sometime prior to 30 December

2011, Plaintiff’s personal vehicle was damaged in a car accident. While her vehicle

was being repaired, Plaintiff rented a 2012 Dodge Avenger for her personal and

employment use.

      On 30 December 2011, Plaintiff was driving the rented Dodge Avenger from

HomeCare’s offices to her first appointment of the day. While en route, Plaintiff was

struck head-on by a car being driven by Jacob Dillman. Dillman allegedly had

swerved to avoid hitting a stopped car in his lane of travel. The airbags in the Dodge

Avenger failed to deploy during the crash. Plaintiff suffered catastrophic injuries.

      On 25 April 2013, Plaintiff filed the present lawsuit against Chrysler Group,

LLC; EAN Holdings, LLC; Enterprise Leasing Company-Southeast, LLC; TRW

Automotive U.S., LLC; Nancy Pearson Dillman, and Jacob P. Dillman in connection



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with the 30 December 2011 collision.      Plaintiff subsequently filed an amended

complaint adding Enterprise Holdings, Inc. as a defendant. Due to their status as

potential underinsured motorist carriers, and consistent with N.C. Gen. Stat. § 20-

279.21 (2013), Plaintiff sent copies of the complaint and summons to both GuideOne

and at least one other unnamed defendant, Ironshore Specialty Insurance Group

(“Ironshore”).

      On 14 November 2014, Plaintiff filed a notice of voluntary dismissal with

prejudice of the complaint, which had asserted claims against Chrysler Group, LLC;

EAN Holdings, LLC; Enterprise Holdings, Inc.; Enterprise Leasing Company-

Southeast, LLC; and TRW Automotive U.S. LLC.

      On 9 October 2013, GuideOne filed an answer to the complaint. Plaintiff filed

an amended complaint on 4 November 2013, and GuideOne filed an answer and

counterclaim on 9 December 2013.

      On 23 January 2015, GuideOne moved for summary judgment. GuideOne

contended its policy does not provide underinsured motorist coverage (“UIM

coverage”) for Plaintiff’s injuries, because the rented Dodge Avenger was not an

“insured vehicle” for the purposes of UIM coverage under the policy. On 30 January

2013, Plaintiff filed a cross-motion for summary judgment.

      GuideOne’s and Plaintiff’s cross-motions were scheduled to be heard on 9

February 2015. Earlier that day, and prior to the hearing on those motions, the trial



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                                   Opinion of the Court



court granted Plaintiff’s motion for summary judgment against unnamed defendant

Ironshore, due to a failure to appear or to respond to the complaint. Plaintiff’s counsel

represented to the court that because the Ironshore claim had been dealt with, the

claim involving GuideOne was the “only thing left” in the lawsuit.

      On 18 February 2015, the trial court granted Plaintiff’s cross-motion for

summary judgment, and denied GuideOne’s motion for summary judgment. The

court “declar[ed] that GuideOne’s policy does provide Plaintiff with [UIM coverage]

payment not exceeding the applicable limits of the policy in the amount of

$1,000,000.00 plus interest from the date of the entry of this judgment.” On 9 March

2015, after entry of the trial court’s order, but before entry of GuideOne’s notice of

appeal, the trial court vacated and set aside the grant of summary judgment and

default judgment entered against Ironshore.

      GuideOne filed a notice of appeal on 12 March 2015.

                                       II. Issues

      GuideOne contends the trial court erred by determining: (1) the GuideOne

policy provides UIM coverage to Plaintiff for injuries she sustained from the collision;

(2) the Financial Responsibility Act, N.C. Gen. Stat. § 20-279.21 et seq, required UIM

coverage for the collision; and (3) the UIM policy limits under the GuideOne policy

available to Plaintiff are $1,000,000.00.

                              III. Appellate Jurisdiction



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                                   Opinion of the Court



      We must first determine whether GuideOne’s appeal is properly before this

Court. An appeal is interlocutory when noticed from an order entered during the

pendency of an action, which does not dispose of the entire case and where the trial

court must take further action in order to finally determine the rights of all parties

involved in the controversy. See Veazey v. City of Durham, 231 N.C. 357, 362, 57

S.E.2d 377, 381 (1950). An interlocutory order does not settle all pending issues and

“directs some further proceeding. . . to [reach] the final decree.” Heavner v. Heavner,

73 N.C. App. 331, 332, 326 S.E.2d 78, 80 (citation omitted), disc. review denied, 313

N.C. 601, 330 S.E.2d 610 (1985).

      Here, the trial court’s order denying GuideOne’s motion for summary judgment

and partially granting Plaintiff’s cross-motion for summary judgment did not settle

all of the pending issues in the case. The trial court’s order did not dispose of

Plaintiff’s claims against Ironshore, and issues of liability and damages remain.

      The Ironshore claim was revived when the trial court vacated the default

judgment previously entered against it. Further, as GuideOne concedes in its brief,

the trial court must determine other facets of the claim, such as stacking, offsets, and

credits under the GuideOne policy. During oral arguments, counsel stated issues of

liability and damages also remain pending. The trial court’s order is not a final

judgment. Plaintiff’s appeal is interlocutory.

                       A. Appeal from an Interlocutory Order



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                                   Opinion of the Court



      An interlocutory order is generally not immediately appealable. Earl v. CGR

Dev. Corp., ___ N.C. App. ___, ___, 773 S.E.2d 551, 553 (2015); N.C. Gen. Stat. § 1A-

1, Rule 54(b) (2013).   The “general prohibition against immediate appeal exists

because ‘[t]here is no more effective way to procrastinate the administration of justice

than that of bringing cases to an appellate court piecemeal through the medium of

successive appeals from intermediate orders.’” Harris v. Matthews, 361 N.C. 265, 269,

643 S.E.2d 566, 568-69 (2007) (quoting Veazey, 231 N.C. at 363, 57 S.E.2d at 382.

However,

             there are two avenues by which a party may immediately
             appeal an interlocutory order or judgment. First, if the
             order or judgment is final as to some but not all of the
             claims or parties, and the trial court certifies the case for
             appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an
             immediate appeal will lie. Second, an appeal is permitted
             under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1) if the
             trial court’s decision deprives the appellant of a substantial
             right which would be lost absent immediate review.

Feltman v. City of Wilson, ___ N.C. App. ___, ___, 767 S.E.2d 615, 619 (2014). Here,

the order appealed from does not contain a N.C. Gen. Stat. § 1A-1, Rule 54(b)

certification by the trial court. Branch Banking & Trust Co. v. Peacock Farm, Inc.,

___ N.C. App. ___, ___, 772 S.E.2d 495, 499, aff’d per curiam, ___ N.C. ___, ___ S.E.2d

___, 2015 N.C. LEXIS 1253 (2015).

      The merits of GuideOne’s interlocutory appeal may only be considered if

GuideOne demonstrates its deprivation of some substantial right that would be lost

absent immediate appeal. See Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,

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                                   Opinion of the Court



579 (1999) (“Essentially a two-part test has developed -- the right itself must be

substantial and the deprivation of that substantial right must potentially work injury

. . . if not corrected before appeal from final judgment.” (citation omitted)).

                             B. Substantial Right Analysis

      GuideOne argues the trial court’s order affects a substantial right because: (1)

whether GuideOne provides UIM coverage determines whether it has a right to

participate in the underlying action; and (2) the finding below is analogous to a duty

to defend. We reject both of GuideOne’s contentions.

                     1. Right to Participate in Underlying Action

      To demonstrate a substantial right, GuideOne points to the language of N.C.

Gen. Stat. § 20-279.21(b)(4), which provides in relevant part:

             Upon receipt of notice [of the complaint], the underinsured
             motorist insurer shall have the right to appear in defense
             of the claim without being named as a party therein, and
             without being named as a party may participate in the suit
             as fully as if it were a party. The underinsured motorist
             insurer may elect, but may not be compelled, to appear in
             the action in its own name and present therein a claim
             against other parties[.]

N.C. Gen. Stat. § 20-279.21(b)(4) (2013). GuideOne argues N.C. Gen. Stat. § 20-

279.21(b)(4) only allows a UIM carrier the right to appear in defense of the claim.

Whether GuideOne is a UIM carrier is a threshold question of whether it may

participate in the suit.




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                                   Opinion of the Court



      GuideOne correctly asserts an insurer must be an “underinsured motorist

insurer” before it can participate. Id. GuideOne cannot demonstrate a substantial

right on this issue. The trial court’s order ordered, adjudged, and decreed that

“GuideOne’s policy does provide Plaintiff with underinsured motorist coverage

payments[.]” Under the trial court’s order, and for the purpose of N.C. Gen. Stat. §

20-279.21(b)(4), at this time GuideOne is an “underinsured motorist insurer” and may

participate in the lawsuit to the fullest extent allowed under that statute to the final

decree.

      That a court on appellate review may later determine GuideOne is not an

underinsured motorist insurer under the terms of its policy does not diminish

GuideOne’s ability to fully participate in the suit to the final decree. N.C. Gen. Stat.

§ 20-279.21(b)(4).    Since GuideOne may participate in the action, it cannot

demonstrate a “substantial right which would be lost absent immediate review” on

this basis. Feltman, ___ N.C. App. at ___, 767 S.E.2d at 619.

                                  2. Duty to Defend

      GuideOne also argues a substantial right exists, requiring immediate

appellate review, because the trial court’s order is “analogous to a finding that

GuideOne has a duty to defend the underlying action.” We disagree.

      An underinsured motorist insurer “may elect, but may not be compelled, to

appear in the action in its own name[.]” N.C. Gen. Stat. § 20-279.21(b)(4) (emphasis



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                                     Opinion of the Court



supplied). N.C. Gen. Stat. § 20-279.21(b)(4) “does not require that an underinsured

motorist carrier be served with pleadings as a party, nor does it require that such

carrier appear in the action.” Darroch v. Lea, 150 N.C. App. 156, 160, 563 S.E.2d 219,

222 (2002) (citation omitted).

      GuideOne cites two decisions of this Court, Lambe Realty Inv., Inc. v. Allstate

Ins. Co., 137 N.C. App. 1, 527 S.E.2d 328 (2000) and Cinoman v. Univ. of N.C., ___

N.C. App. ___, 764 S.E.2d 619 (2014) to assert the trial court’s ruling and present

status of the case equates to a duty to defend. We disagree. Neither Lambe Realty

nor Cinoman involved an underinsured motorist insurer nor the language of N.C.

Gen. Stat. § 20-279.21(b)(4), which explicitly provides a UIM carrier may elect, but

may not be compelled, to participate in the suit. Lambe Realty Inv., 137 N.C. App. at

3, 527 S.E.2d at 330 (considering whether a potential tortfeasor in a declaratory

judgment action was an insured under the terms of a commercial liability insurance

policy); Cinoman, ___ N.C. App. at ___, 764 S.E.2d at 621 (considering whether a

potential tortfeasor in a medical malpractice suit was an insured under the terms of

a liability insurance trust fund).

       The plain language of N.C. Gen. Stat. § 20-279.21(b)(4) states GuideOne is

under no duty to be named or required to appear in this action. We cannot agree with

GuideOne that its choice to enter the action is tantamount to a duty to defend an

insured. GuideOne is free to participate, or decline to participate, in any and all



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                                 Opinion of the Court



portions of the proceedings in the trial court. GuideOne has failed to demonstrate a

“substantial right which would be lost absent immediate review” on this assertion.

Feltman, ___ N.C. App. at ___, 767 S.E.2d at 619.

                                   IV. Conclusion

      All parties agree that GuideOne’s appeal from the trial court’s 18 February

2015 order is interlocutory. GuideOne may participate fully in any proceedings to

the final decree. The summary judgment order appealed from is not certified as

immediately appealable by the trial court pursuant to Rule 54(b).

      N.C. Gen. Stat. § 20-279.21(b)(4) permits, but does not require, GuideOne to

participate in the proceedings as an unnamed underinsured motorist carrier.

GuideOne has not shown a substantial right exists, which would be lost absent

immediate appellate review. GuideOne’s appeal is dismissed without prejudice to

any claims it may assert on appeal after final judgment is entered.

      DISMISSED.

      Judges CALABRIA and DAVIS concur.




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