An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-713
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


TERRY WAYNE WOOD,
     Plaintiff-Appellee,

      v.                                      Forsyth County
                                              No. 09 CVS 3520
JEREMY NUNNERY, NORTH CAROLINA
FARM BUREAU MUTUAL INSURANCE
COMPANY and FIREMEN’S INSURANCE
COMPANY OF WASHINGTON, D.C.,
     Defendants-Appellants.


      Appeal by Defendant Jeremy Nunnery from order entered 11

February 2013 by Judge Edwin G. Wilson, Jr. in Superior Court,

Forsyth County.       Heard in the Court of Appeals 19 November 2013.


      Maynard & Harris, Attorneys at Law, PLLC, by C. Douglas
      Maynard, Jr., for Plaintiff-Appellee.

      Van Laningham Duncan PLLC, by L. Cooper Harrell; Smith
      Moore Leatherwood LLP, by James G. Exum, Jr.; and Bennett &
      Guthrie, PLLC, by Rodney A. Guthrie and Roberta King
      Latham, for Defendant-Appellant Jeremy Nunnery.

      Pinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers, for
      North Carolina Association of Defense Attorneys, amicus
      curiae.

      Brown Moore & Associates, PLLC, by Jon R. Moore; and White
&     Stradley, PLLC, by J. David Stradley, for North Carolina
      Advocates for Justice, amicus curiae.


      McGEE, Judge.
                                      -2-



       Terry Wayne Wood (“Plaintiff”) was injured on 10 May 2006,

in an automobile accident in Harnett County, as a result of the

negligence of Jeremy Nunnery (“Defendant”).               At the time of the

accident, Plaintiff was driving a truck owned by Plaintiff’s

employer, in the course of his employment.                   Plaintiff filed a

complaint on 30 April 2009 against Defendants North Carolina

Farm    Bureau   Mutual     Insurance    Company       (“Farm    Bureau”),     and

Firemen's Insurance Company of Washington, D.C. (“Firemen's”).

       Farm Bureau was dismissed from the action and is not a

party to this appeal.         Firemen's is the underinsured motorist

carrier for Plaintiff's employer.              Defendant was insured at the

time of the accident by State Farm Mutual Automobile Insurance

Company (“State Farm”).

       At trial, the jury determined that Defendant’s negligence

caused Plaintiff’s injuries, and awarded Plaintiff $300,000.00

in compensatory damages on 11 August 2010.                      The trial court

entered judgment on 31 August 2010, directing that Plaintiff

recover from Defendant damages in the amount of $300,000.00,

along with interest at the statutory rate of eight percent (8%)

from   30   April   2009.     State     Farm    paid   its    policy   limit   of

$30,000.00 into the office of the Clerk of Court of Forsyth

County on 2 September 2010.        Firemen's paid $202,627.58 into the
                                               -3-
office of the Clerk of Court of Forsyth County on 13 September

2010,      in   fulfilment       of    its     obligations        as     the       underinsured

motorist carrier.            Plaintiff introduced evidence at trial that

he   had     received     workers'       compensation         benefits         totaling       more

than    $148,000.00.             The    amount       of    the    lien        of    Plaintiff’s

employer’s        workers’        compensation            carrier      was         reduced,      by

agreement,       to    $50,000.00,       leaving      a     net   benefit           in   workers’

compensation benefits of $98,000.00.

       Defendant filed a motion for credit upon and satisfaction

of the judgment on 1 December 2010.                        The trial court entered an

order      on    29    December        2010,     ruling      that        the       payments      of

$30,000.00        by     State     Farm,       $202,627.58          by     Firemen's,         and

$98,000.00        by     Plaintiff’s         employer’s          workers’          compensation

carrier, a total amount of $330,627.58, constituted payment in

full    of      the    judgment    and     that      the    judgment          was    satisfied.

Plaintiff        appealed,    and      this     Court      entered       an    opinion      on    7

August 2012 affirming in part and reversing and remanding in

part.      Wood v. Nunnery, __ N.C. App. __, 730 S.E.2d 222 (2012)

(Wood I).        In Wood I, and relevant to the current appeal, this

Court stated:

                The trial court held that the $30,000.00
                from State Farm, $202,627.58 from Firemen's,
                and the net benefit of $98,000.00 in
                workers' compensation benefits ($148,000.00
                less   the  reduced   lien  of   $50,000.00)
                constituted a recovery to . . . [P]laintiff
                                    -4-
             of at least $330,627.58.    The trial court
             went on to hold that “the collective
             payments paid into the Office of the Clerk
             of Court of Forsyth County constitute full
             payment   and  satisfaction  of  the  final
             Judgment entered herein.”

Id. at __, 730 S.E.2d at 224.       This Court went on to say:

             We initially note that the trial court
             conflated the concepts of the amounts owed
             by [D]efendant as the tortfeasor in this
             matter and the amount owed by Firemen's as
             an underinsured motorist carrier (UIM).
             Plaintiff instituted this action against
             [D]efendant, seeking monetary damages for
             personal injuries proximately caused by the
             negligence of [D]efendant.     The jury found
             that [P]laintiff's injuries were proximately
             caused by the negligence of [D]efendant and
             awarded    damages    to     [P]laintiff    of
             $300,000.00.     The   trial   court   entered
             judgment against only [D]efendant.        This
             judgment   was   based   upon    [D]efendant's
             negligence and was a tort recovery.

             The liability of Firemen's         is    based    in
             contract, not in tort.

Id. at __, 730 S.E.2d at 224.           This Court held that Defendant

was not “entitled to a credit against the judgment for payments

made by Firemen's as a UIM carrier.”          Id. at __, 730 S.E.2d at

225.    We    further held: “The only payment to which [D]efendant

is entitled to a credit against the judgment is the $30,000.00

paid by State Farm, [D]efendant's liability insurance carrier.”

Id. at __, 730 S.E.2d at 226.

       However,   in   remanding   to   the   trial   court,   this   Court

instructed:
                                               -5-
              The trial court erred in declaring that the
              judgment against [D]efendant had been paid
              and satisfied in full.   The portion of the
              trial court's order so declaring is vacated,
              and this matter is remanded to the trial
              court for further proceedings consistent
              with this opinion.   At such a hearing, the
              trial court may consider whether [D]efendant
              is entitled to additional credits against
              the judgment, other than the $30,000.00 paid
              by State Farm.

Id. at __, 730 S.E.2d at 226.

      Upon remand, the trial court, by order entered 11 February

2013, ruled that Defendant was only entitled to a credit for the

$30,000.00 paid by State Farm, his liability carrier, and that

Defendant was not entitled to any credit for monies paid by

either      Firemen’s    or        by    the    workers’      compensation    carrier.

Defendant appeals the 11 February 2013 order.

      In Defendant’s first argument, he contends the trial court

erred    in   “refusing       to    reduce      the    judgment    against    [him]   to

account for the UIM payment [made by Firemen’s] and net workers’

compensation       benefits        that    were       received    by   [Plaintiff]    as

compensation for his injuries.”                 We disagree.

      In the prior appeal in this case, this Court held: “We hold

that [D]efendant is not entitled to a credit for payments made

by Firemen's into the Office of the Clerk of Superior Court for

Forsyth County.”        Wood I, __ N.C. App. at __, 730 S.E.2d at 225.

We   have     no   authority        to    revisit      that   holding.       Weston   v.
                                   -6-
Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751,

753 (1994) (citations omitted) (“According to the doctrine of

the law of the case, once an appellate court has ruled on a

question, that decision becomes the law of the case and governs

the question both in subsequent proceedings in a trial court and

on subsequent appeal.”).

    Less clear is the holding in Wood I concerning the workers’

compensation payments made to Plaintiff.            However, the Wood I

opinion considered the credit given Defendant by the trial court

for the net workers’ compensation payout in stating: “The trial

court held that . . . the net benefit of $98,000.00 in workers’

compensation   benefits   ($148,000.00      less   the     reduced   lien   of

$50,000.00)    constituted   a   recovery    to    . . .    [P]laintiff[.]”

Wood I, __ N.C. App. at __, 730 S.E.2d at 224.              The trial court

then credited that amount (along with payments made by Firemen’s

and State Farm) against Defendant’s recovery.               This Court held

that the trial court had erred, stating:

         We initially note that the trial court
         conflated the concepts of the amounts owed
         by defendant as the tortfeasor in this
         matter and the amount owed by Firemen’s as
         an underinsured motorist carrier (UIM).
         Plaintiff instituted this action against
         [D]efendant, seeking monetary damages for
         personal injuries proximately caused by the
         negligence of [D]efendant.   The jury found
         that [P]laintiff’s injuries were proximately
         caused by the negligence of [D]efendant and
         awarded    damages   to    [P]laintiff    of
                                          -7-
            $300,000.00.     The   trial  court   entered
            judgment against only [D]efendant.       This
            judgment   was   based   upon   [D]efendant’s
            negligence and was a tort recovery.

            The liability of Firemen’s                is     based      in
            contract, not in tort.

Id. at __, 730 S.E.2d at 224.             Though this Court did not include

the   workers’     compensation       carrier    in       that    discussion,       its

liability, like that of Firemen’s, was in contract, not tort.

Plaintiff instituted this action in tort against Defendant, not

the   workers’    compensation       carrier.        In    Wood    I,    this     Court

continued:

            “The party against whom a judgment for the
            payment of money is rendered by any court of
            record may pay the whole, or any part
            thereof, in cash or by check, to the clerk
            of   the  court  in   which  the   same  was
            rendered[.]”    N.C. Gen. Stat. § 1–239
            (2011).

            In this case, the judgment was entered only
            against [D]efendant.   It was not entered
            against Firemen’s. By the plain language of
            N.C. Gen. Stat. § 1–239, [D]efendant is
            responsible for satisfying the judgment
            entered against him.

            The only payment to which [D]efendant is
            entitled to a credit against the judgment is
            the   $30,000.00   paid    by   State   Farm,
            [D]efendant’s liability insurance carrier.

Id.   at    __,   730    S.E.2d      at    225-26.        Though     the     workers’

compensation      payment      is   not   specifically       mentioned       in   this

analysis,    we   find    no    distinguishing        difference        between    the
                                         -8-
relative positions of Firemen’s and the workers’ compensation

carrier in this matter.           Within this context, we hold that our

holding in Wood I: “The only payment to which [D]efendant is

entitled to a credit against the judgment is the $30,000.00 paid

by   State    Farm,   [D]efendant’s       liability       insurance     carrier[,]”

id., applied to all potential credits that had been argued on

appeal, including the workers’ compensation payment.                      The trial

court,    having   found   that    Defendant        was    not   entitled     to    any

additional     credits   not   addressed       in   Wood    I,   did    not   err    in

denying      Defendant   credit    for    payments        made   to    Plaintiff    by

Firemen’s or by the workers’ compensation carrier.

      Defendant’s policy arguments are not for us to decide, as

we are bound by this Court’s               holding in       Wood I.        The same

applies to Defendant’s collateral source argument.

      Affirmed.

      Judges BRYANT and STROUD concur.

      Report per Rule 30(e).
