An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1255


Filed: 7 October 2003


v .                             Rowan County
                                No. 02-CVS-0023


    Appeal by plaintiff from order entered 8 May 2002 by Judge Clarence E. Horton, Jr. in Rowan County Superior Court. Heard in the Court of Appeals 10 September 2003.

    J. Stephen Gray for plaintiff-appellant.

    Teague, Rotenstreich & Stanaland, LLP, by Stephen G. Teague and Paul A. Daniels, for defendants-appellees.

    MARTIN, Judge.

    Plaintiff filed her complaint in this action on 7 January 2002 seeking damages for personal injuries allegedly sustained when she was struck by defendants' automobile in a Walmart parking lot on 4 January 1999. Defendants answered, asserting, inter alia, that the complaint was barred by the statute of limitations. The trial court granted defendants' motion for judgment on the pleadings, determining that plaintiff's claims were barred by the statute of limitations. Plaintiff appeals.

    On appeal, plaintiff contends the trial court erred in granting judgment on the pleadings because it (1) misapplied G.S. § 1-52 (16), prematurely deciding the issue of whether plaintiff's bodily harm was apparent on the day of the accident, and (2) failed to recognize G.S. § 7A-39, which permits the extension of the statute of limitations in the event of catastrophic conditions. We affirm the judgment of the trial court.
    Initially we note that because the trial court considered, in addition to the pleadings, affidavits and other materials submitted by the parties, the motion must be “treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” N.C. Gen. Stat. § 1A-1, Rule 12(c) (2001); see also Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867 (1984). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). “[T]he evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminex Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
    The statute of limitations applicable to plaintiff's claims is G.S. § 1-52 (16), which provides that an action for personal injuries shall be brought within three years, except that such action “shall not accrue until bodily harm to the claimant . . . becomes apparent or ought reasonably to have become apparent to theclaimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52 (16) (2001). This statute delays the accrual of a cause of action for personal injury until the time a physical injury should be reasonably discovered. See McCarver v. Blythe, 147 N.C. App. 496, 499, 555 S.E.2d 680, 683 (2001) (noting that the common law rule was modified to provide an extension for latent injuries). “[O]nce some physical damage has been discovered, the [damage or] the injury springs into existence and completes the cause of action.” Id. (citation omitted). Plaintiff contends there is a genuine issue of fact as to the date her claims accrued, precluding summary judgment based upon the statute of limitations. We disagree.
    In her complaint, plaintiff alleged that the accident occurred on 4 January 1999 and that she sustained injuries as a result of being hit, “thrown up onto the hood of defendant's vehicle, and rolled off the side of the vehicle.” Defendants admitted the date of the accident. In opposition to defendants' motion to dismiss on the pleadings, plaintiff submitted an affidavit in which she asserted “[a]s of January 4, 2002 [sic] [she] did not realize that [she] had sustained serious injuries from being struck by defendant's vehicle.” She asserted that despite experiencing some pain immediately after the accident and being transported to the hospital by ambulance at the scene, she was unaware of her injuries' severity, believing the pain resulted from “an aggravation of pre-existing conditions.” Even considered in the light most favorable to the plaintiff, her materials do not show that her injuries were latent or unknown to plaintiff, only thatshe did not realize the seriousness of such injuries until a later date. Thus, there was no genuine issue of fact as to the date plaintiff's claims accrued, and the trial court did not err in its conclusion that such claims accrued on the date of the accident and that her complaint was filed more than three years thereafter.
    However, plaintiff further contends the provisions of G.S. § 7A-39(b) excuse her failure to file her action prior to the expiration of the statute of limitations. G.S. § 7A-39(b) permits an extension of the statute of limitations when the Chief Justice of the North Carolina Supreme Court determines catastrophic conditions exist, including snow and ice storms. N.C. Gen. Stat. § 7A-39(b) (2001). An order can be entered “any time after catastrophic conditions have ceased to exist” and “shall become effective for each affected county upon being filed in the office of the clerk of superior court of that county.” Id. Supporting her contentions with copies of various news articles concerning snow and ice storms which occurred on Thursday, 3 January 2002, and Friday, 4 January 2002, plaintiff contends her complaint, filed on Monday, 7 January 2002, was timely. Plaintiff concedes, however, that no order was issued pursuant to this statute, and that the Rowan County courthouse was open on 4 January 2002, although not “during the regular scheduled hours.” Without an order issued by the Chief Justice, neither the trial court nor this Court has authority, pursuant to G.S. § 7A-39(b), to extend the time within which plaintiff's complaint might be timely filed.     Summary judgment dismissing plaintiff's complaint must be affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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