1. Parties--motor vehicle accident--truck owner and driver not
available--intervention by insurance company
The trial court did not err by granting plaintiff's motion
to allow an insurance company to intervene where the insureds,
the owner of a tractor-trailer and the driver, could not be
located by the attorney retained by the insurance company.
Although an attorney may not represent a client without the
client's permission, Rule 24 of the Rules of Civil Procedure
provides a means by which an interested party may intervene to
protect its interest.
2. Trial--motorcycle-truck accident--driver not found--
insurance company intervention--motion to continue denied
The trial court did not abuse its discretion by denying a
motion to continue a negligence action arising from an
motorcycle accident where the owner of the tractor-trailer and
its driver could not be found but their insurance company
intervened.
3. Negligence--request for independent medical exam--not timely
The trial court did not abuse its discretion in a negligence
action arising from a motorcycle accident by denying the
insurance company's motion for an independent medical examination
of plaintiff under Rule 35 where the court found that an exam at
that point would be untimely.
4. Appeal and Error--preservation of issues--motion in limine--
failure to object when questions asked
Defendant in a negligence action arising from a motorcycle
accident did not preserve for appeal the issue of whether the
court erred by allowing testimony from an insurance company
representative despite a motion in limine where defendant-
insurance company objected when the witness was called but not
when any of the questions were asked.
Anderson & Associates, P.C., by John J. Korzen; W. NewtonMoore; and Long, Parker, Warren & Jones, P.A.
, by Steve
Warren, for plaintiff-appellee.
Dennis, Corry & Porter, L.L.P., by Christopher D. Pixley, for
defendants-appellants.
WALKER, Judge.
On 6 July 1996, a motor vehicle accident occurred in Buncombe
County, North Carolina involving Joseph Oliver Morin (plaintiff),
David Charles Sharp (defendant Sharp) and U.S. Transport (defendant
Transport). Plaintiff was riding a motorcycle on Interstate 40
when he was struck by a spare tire weighing approximately one
hundred to one hundred and fifty pounds. The tire had rolled off
a tractor-trailer owned by defendant Transport and driven by its
employee, defendant Sharp. Upon being struck by the tire,
plaintiff remained on his motorcycle which flipped in the air three
times. Plaintiff then slid under the motorcycle and across the
road for over one hundred feet, sustaining severe injuries to his
teeth, back, shoulder, hip and legs, which required multiple
surgeries and left him with permanent disabilities.
Plaintiff filed suit on 3 March 1998 alleging negligence and
seeking damages from defendants Sharp and Transport. When
defendants Sharp and Transport failed to answer or otherwise plead
to the complaint, plaintiff obtained an entry of default.
Defendant Transport's liability insurance carrier, Legion
Insurance Company (defendant Legion), received notice of the
lawsuit on 15 February 1999, after entry of default. After
defendant Legion retained attorney William Morris (Morris) to
represent defendants Sharp and Transport, he moved to set aside theentry of default.
Thereafter, plaintiff and defendant Legion consented to the
setting aside of the entry of default which was done by order on 14
April 1999. At that time, Morris advised plaintiff's counsel that
he represented “both the insured and the insurance carrier.” The
case was peremptorily set for trial beginning on 11 October 1999.
On 6 May 1999, Morris filed an answer on behalf of defendants
Sharp and Transport and denied liability. Plaintiff initiated
discovery which was sent to Morris in August 1999; however, Morris
responded that he was unable to locate defendants. Plaintiff then
filed a motion asking that the trial court allow defendant Legion
to intervene. The trial court ordered that “any insurance carrier
which so desires to intervene and assert any interest it may have
in connection with the matters . . . alleged in [p]laintiff's
[c]omplaint . . .” could intervene. Defendant Legion filed its own
motion to intervene as an additional party defendant which was
allowed.
At the conclusion of the trial on 20 October 1999, the jury
returned a verdict in favor of plaintiff in the amount of
$1,035,167.50. Defendant Legion filed a motion for a new trial,
which was denied on 16 November 1999. Defendants Sharp and Legion
(defendants) appealed. Defendant Transport is not a party to this
appeal.
We first address plaintiff's motion to dismiss the appeal.
Plaintiff asserts that this Court is without jurisdiction to hear
defendants' appeal because their notice of appeal fails to
designate the orders which address all issues from which defendantsappeal. After careful consideration, we deny the motion.
[1]In their first assignment of error, defendants contend the
trial court committed reversible error by granting plaintiff's
motion to allow intervention because the order prejudicially forced
defendant Legion to intervene as a party defendant.
One month before trial, Morris filed a motion to continue the
case on the basis that he had been unable to locate defendants
Sharp and Transport. In discovery responses filed previously,
Morris had stated he was unable to locate defendants Sharp and
Transport.
Plaintiff states that the motion to allow intervention by
defendant Legion was filed because of his concern that an attorney-
client relationship had not been formed between Morris and
defendants Sharp and Transport and that any judgment against them
would be improper because Morris had no authority to represent
them.
At trial, defendant Legion filed its own motion to intervene,
stating it was being forced to intervene in order to avoid a
default judgment against its insured. Furthermore, the motion
stated such intervention would prejudice defendant Legion, as
issues of insurance coverage and the availability of insurance
would be improperly raised during the trial.
Our Supreme Court in the recent decision of Dunkley v.
Shoemate, 350 N.C. 573, 515 S.E.2d 442 (1999), held “that a law
firm or attorney may not represent a client without the client's
permission to do so[.]” Id. at 578, 515 S.E.2d at 445. Dunkleylikewise involved an attorney employed by an insurance c
arrier who
attempted to contact the insured without success and therefore was
not authorized to appear on his behalf and defend the lawsuit. Id.
at 575, 515 S.E.2d at 443. The Supreme Court affirmed this Court's
ruling that no attorney-client relationship existed between
defendant and the attorney seeking to represent him. Id. at 578,
515 S.E.2d at 445. However, the Court noted “Rule 24 of the North
Carolina Rules of Civil Procedure provides a means by which an
interested party, under certain circumstances, may intervene in a
pending lawsuit . . . to protect its interests . . . .” Id.
In the instant case, the trial court properly granted
plaintiff and defendant Legion's motions to allow defendant Legion
to intervene as a party defendant to protect its interests as
articulated in Dunkley. After reviewing the record, we fail to see
how defendant Legion was forced to intervene or was prejudiced by
this intervention. This assignment of error is overruled.
[2]In their second assignment of error, defendants contend
the trial court committed reversible error by denying defendant
Legion's motion to continue because such denial caused
irreversible prejudice to defendants.
The standard of review for denial of a motion to continue is
generally whether the trial court abused its discretion. Wachovia
Bank & Tr. Co. v. Templeton Olds.-Cadillac-Pontiac, 109 N.C. App.
352, 356, 427 S.E.2d 629, 631 (1993). “The chief consideration to
be weighed in passing upon the application is whether the grant or
denial of a continuance will be in furtherance of substantialjustice.” Id. The moving party has the burden of proof of showing
sufficient grounds to justify a continuance. Shankle v. Shankle,
289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). Defendants rely on
Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965) and Shankle,
289 N.C. at 483, 223 S.E.2d at 386, where in each case our Supreme
Court held the trial court's denial of a motion to continue was
improper. In Smith, the trial court permitted the withdrawal of
defendant's counsel one day before trial began. Smith, 264 N.C. at
211-12, 141 S.E.2d at 306. In Shankle, defense counsel withdrew
from the case without prior notice to the defendants who had to
proceed to trial without an attorney. Shankle, 289 N.C. at 486,
223 S.E.2d at 388. The Supreme Court ordered a new trial in each
case. Defendants contend a new trial should likewise be ordered in
this case because defendants Sharp and Transport were not
represented by counsel and intervention by defendant Legion was
mandated for an improper purpose, all of which “resulted in an
extraordinary and excessive verdict.” However, the facts in the
instant case are distinguishable from the facts in Smith and
Shankle. Smith, 264 N.C. 208, 141 S.E.2d 303; and Shankle, 289
N.C. 473, 223 S.E.2d 380. Defendants have the burden of proving
sufficient grounds for a continuance. Id. We find nothing in the
record to support an abuse of discretion by the trial court in
deciding not to continue the case.
[3]In their third assignment of error, defendants contend the
trial court committed reversible error and abused its discretion bydenying defendant Legion's motion for an independent medical
examination of plaintiff for the following reasons: (1) plaintiff's
medical condition was in controversy; (2) the motion was timely
filed within the discovery period and seventeen days before trial,
providing plaintiff ample time to comply; (3) the denial was
arbitrary and unreasoned; and (4) the denial prejudiced defendants
by causing them to be inadequately prepared for the cross-
examination of plaintiff and his expert witness.
Rule 35 of our Rules of Civil Procedure provides in part that
when the physical condition of a party is in controversy, the trial
court may order the party to submit to a physical examination by a
physician, but only for good cause shown and upon notice to all
parties, including notice to the person to be examined. N.C. R.
Civ. P. 35 (1999). In addition, the request shall specify the
time, place, manner, conditions, and scope of the examination and
the person by whom it is to be made. Id. A trial court's order
regarding matters of discovery are generally reviewed under an
abuse of discretion standard. Williams v. State Farm Mut. Auto.
Ins. Co., 67 N.C. App. 271, 273, 312 S.E.2d 905, 907 (1984).
Regarding the timeliness of the motion, plaintiff points out
the motion was filed seventeen days before the trial began and was
not calendered and heard until the week before trial. Plaintiff
further asserts the trial court correctly denied the motion for the
following reasons: (1) defendants never challenged the
qualifications or findings of any of plaintiff's physicians whose
depositions and reports were presented at trial; (2) defendantsfailed to offer a reason for delaying their request for the
examination; (3) defendants failed to specify the “manner,
conditions and scope” of the examination; and (4) compliance with
the request would have inconvenienced plaintiff, who would have had
to travel two and one-half hours each way for the examination.
After considering defendant Legion's motion and arguments of
counsel, the trial court found “at this late date said independent
medical exam is untimely[.]” We conclude the trial court did not
abuse its discretion in denying defendants' motion for a medical
examination.
[4]In their last assignment of error, defendants contend the
trial court committed reversible error by allowing plaintiff to
elicit testimony on cross-examination from defendant Legion's
representative, Larry Von Eschen (Von Eschen), in violation of
defendant Legion's motion in limine which had been orally granted
by the trial court. The motion in limine precluded plaintiff from:
eliciting testimony, through deposition or at
trial, of Legion representatives until after a
period of time sufficient to allow Legion, as
a newly intervening party, a fair and adequate
opportunity to prepare for trial. Legion also
moves this [c]ourt for an [o]rder in [l]imine
precluding the [p]laintiff in this action from
introducing new claims not raised in the
complaint or agreed to in the pre-trial order.
Defendants contend this motion was violated because
plaintiff's counsel only questioned Von Eschen about the method by
which defendant Legion processed claims and handled lawsuits and
did not ask of him any questions regarding this accident.
Defendants assert plaintiff's strategy in asking these questions
was to demonstrate that defendant Legion had acted improperly bynot fairly and diligently investigating plaintiff's claim.
Defendants further contend this line of questioning was irrelevant
and improperly influenced the jury, resulting in prejudicial error
which prevented defendants from receiving a fair trial.
A review of the record reveals that when plaintiff called Von
Eschen to testify, defendant Legion objected, which was overruled.
However, defendant Legion failed to object to any of plaintiff's
questions to Von Eschen. Our Supreme Court and this Court have
held that even though a motion in limine is granted, appropriate
objections must be made at trial to preserve the question of
admissibility of the evidence on appeal. See State v. Hayes, 350
N.C. 79, 511 S.E.2d 302 (1999)(holding defendant failed to preserve
for appeal the question of admissibility of evidence that was the
subject of the motion in limine where defendant failed to object to
evidence when offered at trial); Nunnery v. Baucom, 135 N.C. App.
586, 521 S.E.2d 479 (1999)(holding motion in limine is insufficient
to preserve question of admissibility of evidence if movant fails
to further object when it is offered); and Martin v. Benson, 348
N.C. 684, 500 S.E.2d 664 (1998)(holding plaintiffs waived their
right to appellate review of the admission of an expert's testimony
by failing to object to it at trial). Since defendants failed to
object at trial and preserve the issue for appeal, this assignment
of error is overruled.
In summary, defendants received a fair trial free of
prejudicial error.
No error. Judges BIGGS and SMITH concur.
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