UNIVERSAL UNDERWRITERS
INSURANCE COMPANY,
Plaintiff
v
.
Mecklenburg County
No. 00 CVS 4991
MELISSA KINGS and ALLSTATE
INSURANCE COMPANY,
Defendants
Golding, Holden, Pope & Baker, L.L.P., by Robert J. Aylward,
for plaintiff-appellant.
Morris York Williams Surles & Barringer, LLP, by Stephen
Kushner, for defendant-appellee Allstate Insurance Company.
No brief filed by defendant Melissa Kings.
WALKER, Judge.
On 22 May 1998, Melissa Kings was injured while riding as a
passenger in a vehicle being operated by Cassandra Reid with the
permission of its owner, Diamond Chevrolet-Geo, Inc. (Diamond).
Ms. Kings sued Ms. Reid and Diamond for her injuries. Universal
Underwriters Insurance Company (Universal) defended Diamond in the
action while Allstate Insurance Company (Allstate) defended Ms.
Reid.
When a dispute arose between Universal and Allstate over
coverage in that action, Ms. Kings filed the present declaratoryjudgment action against Universal and Allstate to determine the
rights of the parties. The petition alleged the following in part:
11. A civil action was filed by the Petitioner
[Ms. Kings] against Cassandra Reid on December
4, 1998 seeking to recover for personal
injuries sustained in the accident. (98 CVS
17484 - Mecklenburg County)
12. There is a dispute between the respondents
[Universal and Allstate] as to which insurance
policy, if any, provides coverage to Ms. Reid
or the automobile she was driving. There is
also a controversy over whether the umbrella
policy of the Respondent, Universal
Underwriters Insurance Company, provides
coverage for the benefit of the Petitioner
[Ms. Kings].
On 16 January 2001, the trial court granted a motion to realign the
parties such that Universal became the plaintiff in the case and
Ms. Kings and Allstate became the defendants. On 22 June 2001, the
trial court granted summary judgment in favor of defendant Allstate
in the declaratory judgment action. Subsequent to this grant of
summary judgment, Universal settled the underlying action with
Kings on behalf of Reid and Diamond.
Our State has consistently held that “an actual controversy
between the parties is a jurisdictional prerequisite” to a
declaratory judgment action. Calton v. Calton, 118 N.C. App. 439,
442, 456 S.E.2d 520, 522, disc. rev. denied, 341 N.C. 647, 462
S.E.2d 506 (1995)(citing Sharpe v. Park Newspapers of Lumberton,
317 N.C. 579, 583, 347 S.E.2d 25, 29 (1986)). Therefore, a
declaratory judgment action must either have litigation pending or
it must appear unavoidable. Id. Where there is no such
litigation, there is no actual controversy and the courts have nojurisdiction to hear the case. Thus, the underlying action between
Ms. Kings and defendants Ms. Reid and Diamond would be critical in
being able to pursue this declaratory judgment action.
Here, the petition for declaratory judgment specifically
related back to the action by Ms. Kings against Ms. Reid, Diamond,
Universal and Allstate. Because the underlying action has been
settled, the question of whether either Universal or Allstate are
required to pay the damages assessed in the underlying action is
now moot. There is nothing in the record to show that the
settlement of the claim reserved rights as to any of the parties to
the declaratory judgment action or left issues of coverage pending.
Our Supreme Court has held “[i]f the issues before the court
become moot at any time during the course of the proceedings, the
usual response is to dismiss the action.” Messer v. Town of Chapel
Hill, 346 N.C. 259, 260, 485 S.E.2d 269, 270 (1997)(quoting Simeon
v. Hardin, 339 N.C. 358, 370, 451 S.E.2d 858, 866 (1994)).
Because the declaratory judgment action has been rendered moot
by the settlement of the underlying case, this appeal is
Dismissed.
Judges McGEE and CAMPBELL concur.
Report per Rule 30(e).
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