An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-840

                        NORTH CAROLINA COURT OF APPEALS

                            Filed: 21 January 2014


ERNEST LLOYD & MARY JO CAUBLE,
     Plaintiffs,

      v.                                      Henderson County
                                              No. 11 CVS 1251
WILLIAM PRESTON COFFEY,
     Defendant,

      &

MARKEL INSURANCE COMPANY,
     Unnamed Defendant.


      Appeal by plaintiffs from order entered 22 March 2013 by

Judge     Alan   Z.   Thornburg   in   Henderson   County      Superior   Court.

Heard in the Court of Appeals 11 December 2013.


      Lanier Law Group, P.A.,            by    Michael    F.    Roessler,    for
      plaintiff-appellants.

      Arthurs & Foltz, LLP, by Douglas P. Arthurs and Travis G.
      Page, for unnamed defendant-appellee.


      BRYANT, Judge.


      Where plaintiffs fail to follow the statutory requirements

of providing advance, written notice of a claim and settlement
                                           -2-
offer in accordance with N.C. Gen. Stat. § 20-279.12(b)(4), a

grant of summary judgment in favor of unnamed defendant Markel

Insurance Company is appropriate.

         On 8 October 2008, plaintiffs Ernest Lloyd and Mary Jo

Cauble (“plaintiffs”) were a driver and passenger, respectively,

in   a      municipally-operated        bus    when        the   bus    was       struck   from

behind by defendant William Preston Coffey (“defendant”).                                  On 7

July        2011,    plaintiffs    filed      a     complaint          against      defendant

alleging        injury    and     damages      as      a     result      of       defendant’s

negligence.

         On 15 December 2011, plaintiffs’ counsel sent a notice to

Markel       Insurance       Company    (“Markel”),          holders        of    defendant’s

underinsured         motor    vehicle    policy        (“UIM”),        that       “the   bodily

injury damages incurred in [the October 8, 2008] accident exceed

[defendant’s] liability insurer’s limits of liability coverage.”1

On     20     July    2012,    plaintiff      Lloyd        agreed      to     a    settlement

agreement and covenant not to enforce judgment with defendant’s

insurance       carrier,      Discovery.          On   1     August      2012,      plaintiff

Cauble agreed to a similar settlement agreement and covenant not

to     enforce        judgment    with        defendant’s         insurance          carrier,

Discovery.

1
  Defendant’s primary insurance carrier was Discovery Insurance
Company (“Discovery”).
                                       -3-
       On 17 December 2012, Markel filed                a motion for summary

judgment alleging that plaintiffs had failed to provide Markel

with   thirty    days    advance,   written       notice   of    the     settlement

agreements with Discovery as required by N.C. Gen. Stat. § 20-

279.12(b)(4).       On    22   March    2013,     the   trial     court     granted

Markel’s motion for summary judgment.             Plaintiffs appeal.

                           _________________________

       On appeal, plaintiffs argue that the trial court erred in

granting Markel’s motion for summary judgment.                We disagree.

       Summary   judgment      is    appropriate        “if     the      pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.”                   N.C. Gen. Stat. §

1A-1, Rule 56(c) (2011).        We review a trial court’s granting of

summary judgment de novo.           Forbis v. Neal, 361 N.C. 519, 524,

649 S.E.2d 382, 385 (2007).

       Plaintiffs contend that the trial court erred in granting

Markel’s motion for summary judgment.               Specifically, plaintiffs

argue that the trial court erred in granting summary judgment

because   plaintiffs     provided      written,    advance      notice    of   their
                                 -4-
settlement agreements to Markel as required by N.C.G.S. § 20-

279.21(b).    Pursuant to N.C.G.S. § 20-279.21(b)(4),

            [n]o insurer shall exercise any right of
            subrogation   or   any   right   to    approve
            settlement   with    the   original     owner,
            operator, or maintainer of the underinsured
            highway vehicle under a policy providing
            coverage against an underinsured motorist
            where the insurer has been provided with
            written notice before 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 that notice. Further,
            the insurer shall have the right, in 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.

N.C.G.S. § 20-279.21(b)(4) (2011).          Our Court has held that “a

plaintiff is . . . required to notify the UIM insurance carrier

when a claim is filed against the primary tort-feasor, and also

when a settlement offer has been made.”          Gurganious v. Integon

Gen. Ins. Corp., 108 N.C. App. 163, 166, 423 S.E.2d 317, 318

(1992) (emphasis added).

    Here,    plaintiffs’   counsel   sent    letters   to   Markel   on   15

December 2011 which stated:

            Please   be    advised   that  we   represent
            [plaintiffs]    with   respect  to   injuries
            arising   from   an   accident involving   my
            client[s] on or about 10/8/2008. Further
                                   -5-
           communications regarding this matter should
           be directed to the undersigned.

           This letter will also advise you that the
           bodily injury damages incurred in this
           accident exceed the liability insurer’s
           limits of liability coverage. Factual and
           medical information will be submitted to you
           as soon as my client[s] ha[ve] reached
           maximum medical improvement.

           Please acknowledge this correspondence and
           confirm that the above-named was insured on
           the date of the accident and furnish us with
           the amount of insurance coverage. Also,
           please forward to the undersigned any copies
           of medical records or recorded statements
           that you may have retained in your files.

The letters sent by plaintiff’s counsel provide written notice

of a claim to Markel; however, the letters do not convey notice

of a proposed settlement offer.          Therefore, the letters fail to

meet    N.C.G.S.   §   20-279.21(b)(4)’s     requirement   of     providing

written notice to Markel of a claim and a settlement offer.               See

Williams v. Bowden, 128 N.C. App. 318, 494 S.E.2d 798 (1998)

(holding that plaintiff’s oral notice of a settlement offer via

a telephone conversation with the insurer did not meet N.C.G.S.

§ 20-279.21(b)(4)’s requirement of written notice); Gurganious,

108 N.C. App. at 166, 423 S.E.2d at 318 (“[A] plaintiff is . . .

required to notify the UIM insurance carrier when a claim is

filed    against   the   primary   tort-feasor,     and    also    when    a

settlement offer has been made.”).          Accordingly, as plaintiffs
                              -6-
have not met the requirements of N.C.G.S. § 20-279.21(b)(4) by

giving advance, written notice of a claim and settlement offer,

the trial court did not err in granting Markel’s motion for

summary judgment.

    Affirmed.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
