                               NO. COA13-1121

                     NORTH CAROLINA COURT OF APPEALS

                             Filed:    3 June 2014

JACKSON KAHIHU,
     Plaintiff,

    v.                                     Durham County
                                           No. 11 CVD 5031
RAYMOND BRUNSON,
     Defendant.


     Appeal by plaintiff from order entered 12 March 2013 by

Judge Nancy E. Gordon in Durham County District Court.                 Heard in

the Court of Appeals 5 February 2014.


     The Law Offices of Andrew J. Kisala, PLLC, by Andrew J.
     Kisala, for plaintiff-appellant.

     Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for
     defendant Integon National Insurance Company, defendant-
     appellee.


     McCULLOUGH, Judge.


     Plaintiff     Jackson    Kahihu     challenges     an     order   granting

defendant      Integon    National    Insurance     Company’s     motion    for

directed verdict.        For the reasons stated herein, we affirm the

order of the trial court.

                              I.      Background

     On   23    September    2011    Plaintiff     Jackson    Kahihu   filed   a

complaint against defendant Raymond Brunson.                 Plaintiff alleged
                                               -2-
the   following:          On   22     April      2011,       plaintiff      and     defendant

Brunson     were   involved          in    a    car    accident       in    Durham,       North

Carolina.    Plaintiff         was    driving         west    in    the     right    lane    on

Holloway Street near U.S. 70 when defendant Brunson was driving

west in the left lane on the same street.                          As defendant Brunson

was approaching the PVA turnoff to 2101 Holloway Street, he

“immediately and without warning swerved across the right lane

and suddenly applied his brakes which caused him to rapidly

decelerate in front of Plaintiff’s vehicle, leaving Plaintiff

unable to stop before colliding with Defendant [Brunson].”                                 “The

sudden swerving and braking action by Defendant [Brunson] left

Plaintiff    unable       to   stop       before      colliding      into     the    back    of

Defendant [Brunson]’s vehicle.”                      Plaintiff alleged that due to

defendant Brunson’s negligence, plaintiff had suffered damage to

his property, physical injuries, and other expenses.

      The    civil       summons,         issued      on     23    September      2011,     was

returned to plaintiff on 2 November 2011, stating that defendant

Brunson     was    not     served.             The    civil       summons    included       the

following notation: “No contact mult. attempts + note.”

      On 8 November 2011, plaintiff filed a “Motion for Entry of

Default”    for    entry       of    default         and   default     judgment       against

defendant    Brunson       for      failure      to    plead.        On     the   same     day,
                                          -3-
plaintiff’s counsel filed an “Affidavit of Service by Certified

Mail.”      Plaintiff’s        counsel    testified    that     upon       filing    the

complaint on 23 September 2011, he mailed a file-stamped Civil

Summons and Complaint to defendant Brunson via United States

postal service certified mail, addressed to defendant, return

receipt requested.            Plaintiff’s counsel testified that on 24

September     2011,     the   summons    and    complaint     were     delivered      to

defendant Brunson’s place of              residence and       “signed for by a

person presumably of suitable age and discretion who is an agent

for Defendant.”         On 8 November 2011, the trial court entered an

“Entry   of    Default”       against    defendant    Brunson    for       failure   to

plead.

    On 10 February 2012, plaintiff filed an amended complaint.

That same day, plaintiff filed a “Motion to Set Aside Entry of

Default”      as   to   defendant    Brunson.        Plaintiff    argued       in    the

motion     that    “[a]ll      responsible      parties   were       not    known     to

Plaintiff on the date of his Motion for Entry of Default through

no fault of his own, and could not have been discovered through

due diligence.”         Based on the foregoing, plaintiff asserted that

he failed to correctly serve all responsible parties pursuant to

Rule 4 of the North Carolina Rules of Civil Procedure and wished

to amend his complaint.             On 10 February 2012, the trial court
                                              -4-
entered       an     “Order     Setting      Aside     Entry       of     Default”     as   to

defendant Brunson.

       On 23 March 2012, plaintiff filed a “Motion for Entry of

Default” against defendant Brunson.                       Thereafter, the trial court

filed an “Entry of Default” against defendant Brunson.

       Also     on     23     March     2012,    plaintiff’s            counsel    filed    an

“Affidavit of Service by Certified Mail,” amended 26 March 2012,

alleging that on 24 September 2011, a summons and complaint was

delivered to defendant Brunson’s place of residence and signed

by a person presumably of suitable age and discretion who is

agent for defendant Brunson.                     The affidavit also stated that

after learning that this case would proceed as an                                   uninsured

motorists claim, plaintiff’s counsel mailed a file-stamped Civil

Summons       and     Complaint       on    16   February         2012     to     plaintiff’s

insurance          company     and    provider       of     his    uninsured        motorists

policy,       GMAC     Insurance        Management         Corporation          (“GMAC”)    or

previously          named     Integon      National       Insurance       Company.          The

summons and complaint were sent via United States postal service

certified mail, addressed to GMAC’s registered agent on file

with    the     North       Carolina       Secretary      of     State,    return      receipt

requested.          Plaintiff’s counsel testified that on 17 February

2012,     the       summons     and     complaint         were    delivered       to    GMAC’s
                                           -5-
registered       agent      and   signed     for    by     a       person    presumably   of

suitable age and discretion who is an agent for GMAC.

    On      28      March    2012,    Integon        National         Insurance      Company

(“defendant Integon”) filed an Answer.                         Defendant Integon moved

to dismiss plaintiff’s action for lack of jurisdiction over the

person, insufficiency of process, and insufficiency of service

of process.         Defendant Integon also moved to dismiss plaintiff’s

action     for       lack    of     jurisdiction         over        defendant      Brunson,

insufficiency          of     process        over        defendant          Brunson,      and

insufficiency of service of process over defendant Brunson.

    On     7     May     2012,    plaintiff        filed       a    motion    for    default

judgment       against      defendant      Brunson         and       defendant      Integon.

Plaintiff argued that the final day for defendant Brunson to

timely file an answer to plaintiff’s 10 February 2012 amended

complaint      was     16   March    2012.         Plaintiff         also    asserted   that

defendant Integon’s final day to timely file an answer was 22

March 2012.

    On 14 May 2012, the trial court entered an order finding

the following:

               2.   [Defendant Brunson and defendant Integon]
                    have been legally served with process.

               3.   [Defendant Brunson and defendant Integon]
                    have failed to timely answer in a manner
                    allowed by the North Carolina Rules of
                                          -6-
                   Civil Procedure, and are adjudged to be
                   in default.

            4.     Plaintiff   maintained                 a   policy   of
                   uninsured    motorists                 coverage   with
                   Defendant INTEGON.

Accordingly, plaintiff’s motion for default judgment was granted

and default judgment was entered against defendant Brunson and

defendant Integon.

      On 13 June 2012, defendant Integon filed a “Motion to Set

Aside Default Judgment” pursuant to Rules 60(b)(1), (3), and (6)

of   the   North    Carolina      Rules       of    Civil    Procedure.       Defendant

Integon    argued        that   plaintiff          erroneously    proceeded     with   a

motion for default judgment on 14 May 2012 against defendant

Integon, without first obtaining an entry of default against

defendant Integon.          Defendant Integon asserted that no entry of

default    could     have       been    entered       against     defendant     Integon

because the trial court lacked “authority to enter an Entry of

Default against a party after that party has filed its Answer.”

      Following      a    hearing      held    on    16    July   2012   on   defendant

Integon’s motion to set aside the default judgment, the trial

court entered an “Order Setting Aside Default Judgment Against

Unnamed Defendant” on 20 July 2012.                    The trial court concluded,

inter alia, that defendant Brunson and defendant Integon are two

separate entities and that an entry of default against defendant
                                           -7-
Brunson is not binding as an entry of default against defendant

Integon.        Thus,     the   trial    court    granted         defendant     Integon’s

motion to set aside default judgment pursuant to Rule 60(b)(6)1.

       On 30 October 2012, plaintiff filed a motion for summary

judgment against defendant Brunson.                   On 20 November 2012, the

trial court entered an order granting plaintiff partial summary

judgment against defendant Brunson as to the property damages

specifically pled in plaintiff’s amended complaint.

       The case came on for trial at the 12 March 2013 session of

Durham    County     District      Court.        At   the       close    of   plaintiff’s

evidence, defendant Integon moved for a directed verdict.

       On 12 March 2013, the trial court entered an order, finding

that     no     summons     was     ever    served         on     defendant      Integon.

Furthermore,        the    trial    court    found         that    defendant      Integon

preserved its challenge to jurisdiction in its answer and did

not stipulate in the pre-trial order that the trial court had

jurisdiction in this action.                Thus, defendant Integon’s motion

for directed verdict was allowed for failure to serve a civil

summons       and   complaint      as   required      by    Rule     4   of    the   North



1
 N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2013) provides that “[o]n
motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order,
or proceeding for the following reasons: . . . (6) Any other
reason justifying relief from the operation of the judgment.”
                                         -8-
Carolina Rules of Civil Procedure and N.C. Gen. Stat. § 20-

279.21(b)(3)(a).

    The     case   continued      as     a    bench     trial    and      judgment     was

entered on 19 March 2013 entitling plaintiff to recover for

personal    injury    from     defendant       Brunson.         On   21    March   2013,

plaintiff filed a “Motion to Alter or Amend Judgment or New

Trial Pursuant to Rules 59 & 60” which the trial court denied on

6 June 2013.

    Plaintiff        appeals    the    12      March    2013     granting      directed

verdict in favor of defendant Integon.

                          II.    Standard of Review

    “The standard of review of directed verdict is whether the

evidence, taken in the light most favorable to the non-moving

party, is sufficient as a matter of law to be submitted to the

jury.”     Scarborough v. Dillard’s, Inc., 363 N.C. 715, 720, 693

S.E.2d 640, 643 (2009) (citation omitted).                       “If there is more

than a scintilla of evidence supporting each element of the

nonmovant’s    case,     the    motion       for   directed     verdict       should   be

denied.”      Whisnant    v.    Herrera,       166     N.C.   App.     719,    722,    603

S.E.2d 847, 850 (2004) (citation omitted).

                                III. Discussion
                                         -9-
    Plaintiff argues that the trial court erred (A) in granting

defendant Integon’s motion for directed verdict based on the

finding that defendant Integon was not served with a summons and

(B) by determining that defendant Integon needed to be served

with a copy of the complaint and summons to be made a party to

the action.

                            A.    Directed Verdict

    First,      plaintiff     argues     that     the    trial    court     erred     by

granting defendant Integon’s motion for directed verdict where

plaintiff   presented       evidence     that   defendant        Integon       had   been

served   with    a   copy    of   the    summons        and   amended      complaint.

Plaintiff relies on the 26 March 2012 “Amended Affidavit of

Service by Certified Mail” filed by plaintiff’s attorney.                             He

argues   that   this   affidavit        created    a    presumption       of    service

which defendant Integon failed to rebut.

    We note that section 20-279.21(b)(3) of the North Carolina

General Statutes

            unequivocally requires that the [uninsured
            motorist] carrier be served with a copy of
            the summons and complaint in order to be
            bound by a judgment against the uninsured
            motorist. Subsection (b)(3) further directs
            that upon service of process, the [uninsured
            motorist] carrier shall become a party to
            the suit and shall have the time allowed by
            statute to file responsible pleadings.
                                     -10-
Liberty Mutual Insurance Co. v. Pennington, 356 N.C. 571, 576,

573 S.E.2d 118, 122 (2002) (emphasis added); see also Darroch v.

Lea, 150 N.C. App. 156, 160, 563 S.E.2d 219, 222 (2002).

      The filing of an affidavit of service that complies with

the   requirements     set   out   in   section   1-75.10   of   the   North

Carolina General Statutes creates a rebuttable presumption of

valid service.       See Goins v. Puleo, 350 N.C. 277, 280-81, 512

S.E.2d 748, 750-51 (1999).         N.C. Gen. Stat. § 1-75.10 provides:

           (a)   Where the defendant appears in the
                 action and challenges the service of
                 the summons upon him, proof of the
                 service of process shall be as follows:

                 . . . .

                 (4)    Service by Registered or Certified
                        Mail. – In the case of service by
                        registered or certified mail, by
                        affidavit of the serving party
                        averring:
                        a. That a copy of the summons and
                           complaint was deposited in the
                           post office for mailing by
                           registered or certified mail,
                           return receipt requested;
                        b. That it was in fact received as
                           evidenced   by    the    attached
                           registry   receipt    or    other
                           evidence satisfactory to the
                           court   of   delivery    to   the
                           addressee; and
                        c. That the genuine receipt or
                           other evidence of delivery is
                           attached.

N.C. Gen. Stat. § 1-75.10(a)(4) (2013).
                                          -11-


      Here, plaintiff’s attorney filed an “Affidavit of Service

by Certified Mail.”            Plaintiff’s affidavit of service stated

that on 16 February 2012, plaintiff’s attorney mailed a file-

stamped summons and amended complaint to defendant Integon via

certified     mail,    return       receipt       requested.              This   affidavit

complied with the requirements set out in N.C. Gen. Stat. § 1-

75.10,     thereby     creating      a    rebuttable        presumption          of    valid

service.

      Defendant Integon argues that the trial court necessarily

concluded that the affidavit of Andrew Gachaiya, an employee of

Corporation Service Company (“CSC”) who is the registered agent

of defendant Integon, rebutted the presumption of valid service.

We agree.

      Gachaiya’s       affidavit         stated      that      CSC        documents      and

maintains records of “all documents served upon it on behalf of

the   companies      for   which    it    is     registered      agent.”          Gachaiya

stated     that   he    had    reviewed        its   records         to     identify     all

documents    plaintiff        had   served     on    it   as    defendant        Integon’s

registered agent.          According to Gachaiya, on 17 February 2012,

“CSC’s   North    Carolina      office     received       via    certified        mail   an

Amended Complaint addressed to Corporation Service Company in

the matter of Jackson Kahihu vs. Raymond Brunson Case Number
                                        -12-
11CVD05031 in the Durham County District Court[.]”                    Gachaiya’s

affidavit made no mention of receiving a copy of the summons.

In addition, CSC received an affidavit of service and an amended

affidavit   of    service     on   26   March     2012    and   28   March    2012,

respectively.         Furthermore,      Gachaiya’s     affidavit     stated    that

“prior to March 27, 2012, CSC did not notify or communicate in

any manner the existence of the [matter of Kahihu v. Brunson

Case Number 11 CVD 05031 in Durham County District Court] to

GMAC Insurance Management Corporation.”

    Based on the foregoing, we hold that Gachaiya’s affidavit

rebutted the presumption of service by showing that defendant

Integon never received a copy of the summons on 17 February 2012

and the trial court could properly find that defendant Integon

was not served with a copy of the summons as required by N.C.

Gen. Stat. § 20-279.21(b)(3).            Accordingly, the trial court was

without jurisdiction over defendant Integon and did not err in

granting defendant Integon’s motion for directed verdict.

                      B.    Insurer as a Separate Party

    In his last argument, plaintiff contends that the trial

court   erred    in   its   determination       that     defendant   Integon    was

required to be served with a copy of the complaint and summons

to be made a party to his action.              We disagree.
                                 -13-
    Section   20-279.21(b)(3)a    (2013)   of   the   North   Carolina

General Statutes provides that all liability insurance policies

are subject to the following:

         A provision that the insurer shall be bound
         by a final judgment taken by the insured
         against an uninsured motorist if the insurer
         has been served with copy of summons,
         complaint or other process in the action
         against the uninsured motorist by registered
         or certified mail, return receipt requested,
         or in any manner provided by law; provided
         however, that the determination of whether a
         motorist is uninsured may be decided only by
         an action against the insurer alone.        The
         insurer,   upon   being    served   as   herein
         provided, shall be 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.   The insurer, upon being served with
         copy   of   summons,    complaint    or   other
         pleading, shall have the time allowed by
         statute in which to answer, demur or
         otherwise plead (whether the pleading is
         verified or not) to the summons, complaint
         or other process served upon it.            The
         consent of the insurer shall not be required
         for the initiation of suit by the insured
         against the uninsured motorist: Provided,
         however, no action shall be initiated by the
         insured until 60 days following the posting
         of notice to the insurer at the address
         shown on the policy or after personal
         delivery of the notice to the insurer or its
         agent setting forth the belief of the
         insured that the prospective defendant or
         defendants are uninsured motorists.
                                            -14-
       N.C.    Gen.    Stat.    §    20-279.21(b)(3)a           establishes      that    the

insurer is a separate party to the action between the insured

plaintiff and an uninsured motorist.                       Grimsley v. Nelson, 342

N.C. 542, 546, 467 S.E.2d 92, 95 (1996).                        It is well established

that    “[N.C.        Gen.     Stat.]       §     20-279.21(b)(3)a         unambiguously

provides that an uninsured motorist carrier may defend in the

name of the uninsured motorist or in its own name, evincing a

legislative      recognition         that       the   uninsured       motorist    and    the

insurer       providing      uninsured          motorist    coverage       are   separate

parties with independent interests.”                     Reese v. Barbee, 129 N.C.

App. 823, 826, 501 S.E.2d 698, 700 (1998) (citation omitted).

Therefore, “in order for the insurer to be bound by a judgment

against    the    uninsured         motorist,         service    of    process    must   be

obtained      upon    the    insurer.”            Id.      Based      on   the   foregoing

reasons, we must reject plaintiff’s arguments.

                                    IV.     Conclusion

       Where the trial court did not err in granting defendant

Integon’s motion for directed verdict, we affirm the order of

the trial court.

       Affirmed.

       Judges HUNTER, Robert C., and GEER concur.
