                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA17-708

                                 Filed: 16 January 2018

Haywood County, No. 16 CVS 188

JOE WALLACE POWELL, JR., Plaintiff,

               v.

ROBERT KENT and CYNTHIA YOUNG, Defendants.


         Appeal by plaintiff from order entered 8 February 2017 by Judge Sharon

Tracey Barrett in Haywood County Superior Court. Heard in the Court of Appeals

13 December 2017.


         Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-appellant.

         Sizemore McGee, PLLC, by Charles E. McGee, for unnamed defendant-appellee
         Mid-Continent Casualty Company.


         ARROWOOD, Judge.


         Joe Wallace Powell, Jr. (“plaintiff”) appeals from an order granting the

unnamed defendant, Mid-Continent Casualty Company’s (“Mid-Continent”) motion

for summary judgment. For the reasons stated herein, we affirm the order of the trial

court.

                                    I.       Background

         On 4 February 2009, plaintiff filed a complaint for personal injury against

Robert Kent (“defendant Kent”) and Cynthia Young (“defendant Young”) in case

number 09 CVS 156. On the same date, summons were issued against defendants
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Kent and Young. Service of the summons and complaint on defendants Kent and

Young was made on 10 February 2009. On 24 February 2009, summons was issued

to Mid-Continent. Service of the summons and complaint as to Mid-Continent was

made through the Commissioner of Insurance on 31 March 2009. On 1 October 2013,

Mid-Continent filed a motion to dismiss. On 13 December 2013, an order of voluntary

dismissal without prejudice and with leave to re-file pursuant to Rule 41(a)(2) of the

North Carolina Rules of Civil Procedure was entered.

      On 24 February 2014, plaintiff re-filed the action in case number 14 CVS

00168. On the same date, summonses were issued against defendant Kent, defendant

Young, and Mid-Continent. Service of the summons and complaint on defendants

Kent and Young was made on 3 March 2014. Service of the summons and complaint

as to Mid-Continent was made through the Commissioner of Insurance on

20 March 2014 and was received on 24 March 2014. On 2 November 2014, a notice

of voluntary dismissal without prejudice as to his claim against Mid-Continent was

filed and a stipulated notice of voluntary dismissal without prejudice was filed as to

the claims against defendants Kent and Young.

      On 26 February 2016, plaintiff re-filed his complaint against defendants Kent

and Young in case number 16 CVS 188. Plaintiff alleged as follows: Plaintiff was the

owner of a 1997 Chevrolet truck, defendant Kent was the owner of a Chevrolet

Silverado truck, and defendant Young was the owner of a Ford F-350 truck.



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Defendant Kent was in default in the payment of an automobile loan which was

secured by the Chevrolet Silverado truck. Plaintiff’s employer had contracted with

the financial institution which had made the secured loan to defendant Kent to

repossess the Chevrolet Silverado.      Plaintiff was informed that the Chevrolet

Silverado was located on defendant Young’s property, and plaintiff, with his wife as

passenger, drove his 1997 Chevrolet truck to repossess the Chevrolet Silverado. After

taking possession of the Chevrolet Silverado, plaintiff’s truck was blocked by a cable

and another vehicle, leaving plaintiff unable to return to the public road.

      Plaintiff further alleged that after he exited his truck, he saw defendant Kent,

driving defendant Young’s Ford F-350 truck, drive toward plaintiff’s direction.

Defendant Kent slammed on the brakes of the Ford F-350 truck, which began

“skidding and sliding in the [plaintiff’s] direction[.]”   While the Ford F-350 was

coming to a sliding stop, defendant Kent opened the door in an attempt to exit the

truck. The Ford F-350 struck plaintiff “in a glancing blow[,]” causing plaintiff’s body

to be spun around and into the open driver’s side door. Defendant Kent then struck

both his Chevrolet Silverado and plaintiff’s 1997 Chevrolet truck with a metal bar,

causing substantial property damage to both vehicles. Defendant Kent removed

items from the Chevrolet Silverado and told plaintiff to leave the property. Defendant

Young remained in the vehicle throughout the entire incident. Plaintiff and his wife

then left the property in plaintiff’s truck, with the Chevrolet Silverado. Based on the



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foregoing, plaintiff alleged the following claims: negligence, personal injury, and

punitive damages as to defendants Kent and Young; uninsured/underinsured

coverage claim against Mid-Continent.

      On 3 January 2017, Mid-Continent filed a motion for summary judgment

pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. Mid-Continent

argued that because defendants Kent and Young did not have an insurance policy to

provide liability coverage for the claims against them and because Mid-Continent had

an insurance policy covering plaintiff’s vehicle at the time of the incident, plaintiff’s

claims against Mid-Continent fell exclusively within the realm of uninsured motorist

(“UM”) claims, governed by N.C. Gen. Stat. § 20-279.21(b)(3). Mid-Continent, citing

several North Carolina cases, contended that the statute of limitations for UM claims

requires that UM insurance carriers be served with the summons and complaint no

later than three years after the date of injury. Because the automobile accident in

this case occurred on 8 February 2006 and Mid-Continent was not served with the

summons and complaint until more than six weeks after the expiration of the statute

of limitations, Mid-Continent argued that plaintiff’s claims against Mid-Continent

should be dismissed at summary judgment.

      On 8 February 2017, the trial court entered an order granting Mid-Continent’s

motion for summary judgment and dismissing plaintiff’s claims against Mid-

Continent.



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      On 6 March 2017, plaintiff filed timely notice of appeal.

                                     II.     Discussion

      On appeal, plaintiff’s sole argument is that the trial court erred by granting

summary judgment in favor of Mid-Continent and dismissing his claims. Specifically,

plaintiff contends that he was not required to obtain service upon the UM insurer

within three years of the date of injury to be within the statute of limitations time

period, that N.C. Gen. Stat. § 20-279.21(b)(3) did not require that a civil summons be

issued against the UM insurer, and that he timely served Mid-Continent in

accordance with N.C. Gen. Stat. § 20-279.21(b)(3). We disagree.

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows 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.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting

Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)). “The evidence

produced by the parties is viewed in the light most favorable to the non-moving

party.” Hardin v. KCS Int’l., Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733 (2009)

(citation omitted).

      N.C. Gen. Stat. § 20-279.21(b)(3)(a) provides that in order for a UM carrier to

be bound by a judgment against an uninsured motorist, the insurer must be “served

with copy of summons, complaint or other process in the action against the uninsured



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motorist by registered or certified mail, return receipt requested, or in any manner

provided by law[.]” N.C. Gen. Stat. § 20-279.21(b)(3)(a) (2015). Once the insurer has

been properly served, it becomes “a party to the action between the insured and the

uninsured motorist though not named in the caption of the pleadings and may defend

the suit in the name of the uninsured motorist or in its own name.” Id.

      N.C. Gen. Stat. § 20-279.21(b)(3)(a) does not specify a time limitation for

service of the UM carrier. However, we are bound by our Court’s holding in Thomas

v. Washington, 136 N.C. App. 750, 525 S.E.2d 839, disc. review denied, 352 N.C. 598,

545 S.E.2d 223 (2000), which was more recently confirmed in Davis v. Urquiza, 233

N.C. App. 462, 757 S.E.2d 327 (2014). See In re Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.”).

      In Thomas, the plaintiff was injured in an automobile accident on

31 March 1995, when she was struck by an uninsured vehicle. Thomas, 136 N.C.

App. at 751, 525 S.E.2d at 840. The plaintiff’s vehicle was insured by North Carolina

Farm Bureau Mutual Insurance Company (“Farm Bureau”) and her policy provided

UM coverage for the plaintiff. Id. While the plaintiff instituted an action against the

defendants within the three-year statute of limitations applicable to automobile

negligence actions, and properly served them with the summons and complaint, the



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plaintiff failed to properly serve Farm Bureau within the statutory time limit. Id. at

753, 525 S.E.2d at 841. The plaintiff attempted to argue that because her action

against Farm Bureau arose from a contract of insurance, the three-year statute of

limitations did not apply, and that her action was kept alive through alias and pluries

summonses.     Id. at 754, 525 S.E.2d at 842.       Our Court rejected the plaintiff’s

arguments, holding that “the three-year tort statute of limitations, which begins

running on the date of an accident, also applies to the uninsured motorist carrier[]”

and that alias or pluries summonses only extend the action upon defendants who are

not served, until such time as service can be made. Id. at 754-55, 525 S.E.2d at 842-

43. The trial court’s order granting the defendant’s motion for summary judgment

was affirmed. Id. at 756, 525 S.E.2d at 843.

      In Davis, the plaintiffs filed suit against the defendant, an uninsured motorist,

seeking monetary damages for personal injuries resulting from a collision that

occurred on 15 July 2009. Davis, 233 N.C. App. at 462-63, 757 S.E.2d at 329. The

plaintiffs contended that Farm Bureau provided UM coverage for the accident in

accordance with N.C. Gen. Stat. § 20-279.21(b)(3). Id. at 463, 757 S.E.2d at 329. The

suit was filed 31 May 2012 and the defendant was served with a copy of the summons

and complaint on 29 July 2012. Id. at 462-63, 757 S.E.2d at 329. On 2 January 2013,

plaintiffs mailed a copy of the summons and complaint to the Commissioner of

Insurance, by certified mail, in order to serve Farm Bureau. It was received on



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7 January 2013. Id. at 463, 757 S.E.2d at 329. Our Court upheld the trial court’s

dismissal of the plaintiffs’ claim against Farm Bureau, stating that mere notice to the

UM carrier is insufficient under N.C. Gen. Stat. § 20-279.21(b)(3)(a); “the carrier must

be formally served with process.” Id. at 464, 757 S.E.2d at 330. Relying on the

holding in Thomas, our Court stated that “[t]he applicable statute of limitations for

personal injury in tort, and for service on a UM carrier, arising out of an automobile

accident is three years.” Id. at 466, 757 S.E.2d at 331 (citing N.C. Gen. Stat. § 1-

52(16) and Thomas). The Court reiterated that “[w]here a plaintiff seeks to bind an

uninsured motorist carrier to the result in a case, the carrier must be served by the

traditional means of service, within the limitations period.” Id. at 467, 757 S.E.2d at

332.

       The holdings in Thomas and Davis appear to be inconsistent with other

applications of the statute of limitation which hold that cases are timely when filed

within the statute of limitation, with service of process permitted within the time

frames set forth in Rule 4 of the North Carolina Rules of Civil Procedure, even when

service is accomplished after the statute of limitation has expired. While we are

unable to discern any requirement in N.C. Gen. Stat. § 20-279.21(b)(3)(a) that

specifically requires in an uninsured motorist action that service of process also be

accomplished before the date the statute of limitation expires, we are bound by the

prior determinations in Thomas and Davis. Given this inconsistent application of the



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statutes of limitation for similarly situated litigants, this situation appears   ripe

for determination or clarification by our Supreme Court or the Legislature.

      In the present case, the automobile accident occurred on 8 February 2006. In

accordance with the decisions discussed above, the three-year statute of limitations

applicable to automobile negligence actions expired on 8 February 2009. Although

plaintiff instituted an action within the limitations period and properly served

defendants Kent and Young, Mid-Continent was not served with the summons and

complaint until 31 March 2009, outside of the three-year statute of limitations.

Accordingly, we are compelled to hold that the trial court did not err by granting

summary judgment in favor of Mid-Continent.

      AFFIRMED.

      Judges STROUD and ZACHARY concur.




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