An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-1215


Filed: 1 July 2003



v .                         Person County
                            No. 01 CVS 21


    Appeal by plaintiff from order entered 12 June 2002 by Judge W. Osmond Smith in Person County Superior Court. Heard in the Court of Appeals 21 May 2003.

    DARSIE, SHARPE, MACKRITIS & DUKELOW, P.L.L.C., by Charles Darsie for plaintiff appellant.

    HAYWOOD, DENNY & MILLER, L.L.P., by Robert E. Levin for defendant appellee.


    Ferdinand L. Carter (“plaintiff”) appeals from an order of the trial court denying his motion to compel arbitration in his action against Charles Cook (“Cook”) and North Carolina Farm Bureau Mutual Insurance Company (“Farm Bureau”) (referred to collectively as “defendants”). For the reasons stated herein, we affirm the order of the trial court.
    The relevant facts of the instant appeal are as follows: On 20 January 1998, plaintiff was involved in a motor vehicle collision with Cook. Farm Bureau provided underinsured motoristcoverage (“UIM”) on the automobile operated by plaintiff. On 11 January 2001, plaintiff filed a complaint against defendants in Person County Superior Court alleging that Cook did not have sufficient liability insurance to cover plaintiff's injuries, and seeking to recover UIM benefits from plaintiff's policy of insurance with Farm Bureau.
    On 18 July 2001, Farm Bureau issued written discovery to plaintiff and conducted his deposition. The matter was placed on the trial calendar for 1 April 2002. On 11 March 2002, plaintiff filed a motion to continue the case and for the first time demanded arbitration. Farm Bureau objected to the motion to continue and objected to arbitration contending that the request for arbitration was untimely. On 3 June 2002, following arguments by counsel, the trial court entered an order denying plaintiff's motions to continue and compel arbitration. The order from the trial court included the following pertinent findings of fact and conclusions of law:
        . . . .
        12. The language of the policy of insurance between the parties in effect at the time of the incident complained of provides in the section entitled “Arbitration, 5. Any arbitration action against the company must begin within the time limit allowed for bodily injury or death actions in the state where the accident occurred.”
        13. The time to begin the arbitration action expired on January 20, 2001, which was three years from the time of the accident complained of.
        14. The demand for arbitration by the Plaintiff was not January 20, 2001.        
        15. This action filed on January 11, 2001 is silent as to any request or demand for arbitration and asks for a jury trial.
        16. The demand for arbitration is therefore untimely and the Plaintiff has waived his right to ask for arbitration so that the motion to Compel Arbitration by the Plaintiff must be denied.
        . . . .

From this order, plaintiff appeals.


    We note initially that “'[a]n order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.'” McCrary v. Byrd, 148 N.C. App. 630, 635, 559 S.E.2d 821, 825 (2002) (quoting Prime South Homes, Inc. v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)), cert. denied, 356 N.C. 674, ____ S.E.2d ____ (2003). Turning to the present case, plaintiff, in his sole assignment of error, argues that the trial court committed reversible error in denying his motion to compel arbitration. For the reasons stated herein, we affirm the order of the trial court.
    Our Supreme Court has held that factual findings made by the trial court are generally conclusive on appeal, if supported by the evidence. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980). However, “the trial court's conclusion as to whether a particular dispute is subject to arbitration is a conclusion of law, reviewable de novo by the appellate court.” Raspet v. Buck, 147 N.C. App. 133, 136, 554 S.E.2d 676, 678 (2001).    In considering a motion to compel arbitration, the trial court should determine (1) the validity of the contract to arbitrate and (2) whether the subject in dispute is covered by the arbitration agreement. Ragan v. Wheat First Sec., Inc., 138 N.C. App. 453, 455, 531 S.E.2d 874, 876, disc. review denied, 353 N.C. 268, 546 S.E.2d 129 (2000). It is well established that an insurance policy is a contract, and is to be construed and enforced in accordance with its terms. Rose Hill Poultry Corp. v. American Mut. Ins. Co., 34 N.C. App. 224, 226, 237 S.E.2d 564, 566 (1977). The parties to a contract may agree to settle any dispute “arising between them relating to such contract” by way of mandatory arbitration. N.C. Gen Stat. § 1-567.2(a) (2001). An arbitration agreement “shall be valid, enforceable, and irrevocable except with the consent of all the parties[.]” Id. Arbitration is a contractual right and it may be waived. Servomation Corp. v. Hickory Constr. Co., 316 N.C. 543, 544, 342 S.E.2d 853, 854 (1986). “A party impliedly waives his contractual right to arbitration if by its delay or by actions it takes which are inconsistent with arbitration, another party to the contract is prejudiced by the order compelling arbitration.” Adams v. Nelsen, 313 N.C. 442, 449, 329 S.E.2d 322, 326 (1985). The law recognizes a distinction between an untimely demand for arbitration occurring outside the time specified by contract and a “waiver” of the right to arbitration. Id. at 448, 329 S.E.2d at 326. In the event of an untimely request for arbitration, plaintiff releases his right under the contract to demand arbitration. The question of waiver is not relevant. Thus, the question in this case is not,as posed by plaintiff, whether a waiver of the right to demand arbitration has taken place, but whether plaintiff's right under the insurance contract to arbitration is barred by the time limit specified in the contract. See id.
    In the present case, the evidence supported the trial court's findings of fact and conclusions of law. The insurance policy between plaintiff and Farm Bureau was a valid contract, which contained an arbitration clause covering disputes regarding bodily injury. Further, the arbitration clause specified the time limit within which a party to the contract could demand arbitration. The insurance policy must be construed and enforced in accordance with its terms. Here, the insurance policy specifically contained language stating that “any arbitration action against [Farm Bureau] must begin within the time limit allowed for bodily injury or death actions in the state where the accident occurred.” According to section 1-52(16) of the North Carolina General Statutes, the time frame for filing claims for personal injury in North Carolina is three years. See N.C. Gen. Stat. § 1-52(16) (2001). The automobile accident between plaintiff and Cook occurred on 20 January 1998. Plaintiff's initial demand for arbitration was contained in a letter dated 11 March 2002. However, the time to request arbitration expired on 20 January 2001. Accordingly, the trial court did not err in concluding that plaintiff's request for arbitration was untimely. The order of the trial court denying plaintiff's motion to compel arbitration is hereby
    Affirmed.     Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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