Winters v Allen, (03-639) 05/18/2004

Appeal by defendants from order entered 10 March 2003 by Judge A. Leon Stanback, Jr. in Durham County Superior Court. Heard in the Court of Appeals 4 February 2004.

    Roberti, Wittenberg, Lauffer & Wicker, P.A., by R. David Wicker, Jr. and Samuel B. Taylor, for plaintiffs-appellees Denise and Melissa Winters.

    N. Cole Williams, for plaintiff-appellee Earl Dean Medlin, Jr.

    Kenneth J. Steinberg, for plaintiffs-appellees Connie Johnson and Joseph Rota.

    Hyland & Padilla, by D. Christopher Hyland, for plaintiffs- appellees Christopher and Mary Baluh.

    J. Bruce Hoof, for Metropolitan Insurance.

Thomas, Ferguson & Mullins, by Jay H. Ferguson.

Bailey & Dixon, L.L.P., by David S. Coats, for defendants- appellants Shannon Allen, Jamison Thompson, and Randy Thompson.

    LEVINSON, Judge.

    Defendants appeal from an order awarding prejudgment interest to plaintiffs. We reverse.
    This case arises from a 26 March 1997 automobile accident. On 24 March 2000, plaintiffs filed a lawsuit alleging negligent operation by defendant Shannon Allen and negligent entrustment by defendants Randy and Jamison Thompson. At the time of the accident, the only liability insurance coverage in effect was a Pioneer Commercial Auto Insurance Policy issued by Erie Insurance Exchange (Erie) to defendant Randy Thompson d/b/a Thompson Electrical Controls.
    On 30 January 2001, the parties settled all claims at a Mediated Settlement Conference. As a part of this settlement, defendants were required to pay monies totaling $300,000.00 and, in addition, defendant Randy Thompson was required to execute a North Carolina Warranty Deed transferring in fee simple absolute three (3) tracts of real property to plaintiff Melissa Winters. However, the parties disagreed as to whether defendants were obligated to pay prejudgment interest under the terms of the insurance policy. Since a copy of the insurance policy was not available at the settlement conference, the parties reserved the issue of prejudgment interest for the trial court in the pending civil action. Accordingly, the Memorandum of Mediated Settlement provided, in relevant part, the following:
All issues between all parties are herebyresolved except, solely, for the issue of prejudgment interest and the obligation, if any, of Erie Insurance Company to pay prejudgment interest in addition to its tendered liability limits under the pioneer commercial auto policy issued by Erie to Thompson Electrical Control and Randy Thompson. This issue will be resolved in the pending civil action in Durham County Superior Court captioned Winters et al v. Thompson et al, 00 CVS [01154].
At issue is the applicability and effect of section 4 of the Additional Payments section of the Liability Protection portion of the policy and, specifically, whether an offer in writing to pay the applicable limit of protection was made.

    The policy in question contains a section titled “Additional Payments,” which provides in pertinent part:
    We will make the following payments in addition to the limit of protection:

    4. prejudgment interest or delay damages awarded on that part of any judgment that does not exceed the limit of protection. If we offer in writing to pay the applicable limit of protection, we will not pay any prejudgment interest or delay damages for the period of time after the offer.

    During the eighteen (18) months following execution of the settlement agreement, no motions were filed in the pending civil action. On 24 June 2002, Superior Court Judge Orlando Hudson entered an order dismissing plaintiffs' claims without prejudice. On 23 September 2002, plaintiffs filed a motion for prejudgment interest. On 17 December 2002, Superior Court Judge Leon Stanback entered an order compelling defendant Randy Thompson to comply with the settlement agreement, specifically his obligation to execute adeed transferring his interest in the three tracts.   (See footnote 1) On 10 March 2003, Judge Stanback entered an order awarding prejudgment interest to plaintiffs. This order included the following relevant findings of fact and conclusions of law:

    21.    That pursuant to the terms of the Mediated Settlement Agreement, the parties agreed that the Trial Court would review the policy of insurance issued by Erie Insurance Company, and determine whether said policy provided coverage for pre- judgment interest and costs over and above the limits of the policy for liability coverage and if the Court so determined that the Defendants and their insurance carrier, Erie Insurance Company, shall pay such pre-judgment interest in addition to the settlement proceeds.

    22.    That the issue that arose at mediation was whether the commercial policy of insurance issued by Erie Insurance Company provided for the payment of pre- judgment interest over and above the limits of the policy of liability coverage; the Plaintiffs taking the position that pre-judgment interest was available and the Defendants and Erie Insurance Company taking the position that pre-judgment interest was not available.

    . . . .

    25.    That the policy of insurance issued by Erie Insurance Company provides that Erie Insurance Company, in addition to the limits of its policy, will pay pre-judgment interest or delayed damages over and above the limits of the policy of liability coverage, but only on that part of an award that does not exceed the limit of protection.
    26.    That the funds paid by Erie Insurance Company on behalf of the Defendants exhausted the liability limits of the insurance policy issued to Thompson Electrical Control, but did not exceed the limit of the protection provided by said policy.

    . . . .

    28.    That based on the evidence and a careful review of the language in the settlement agreement pertaining to this issue, it is clear to this Court that this matter may not have been settled without the Plaintiffs' recovery of pre-judgment interest over and above the limits of the policy of liability coverage, if said pre-judgment interest was available.

    29.    That considering the extent of the severe and permanent injuries suffered by the Plaintiffs and the substantial likelihood of an excess judgment against the individual Defendants, the agreement to pay pre-judgment interest over and above the limits of the policy of liability coverage by the Defendants and Erie Insurance Company, if ordered by the Court, was a reasonable condition for the resolution of this matter.

    30.    That the only reasonable interpretation of the reservation of this issue by the parties in the Mediated Settlement Agreement is that the parties agreed and contracted with each other that the payment of pre-judgment interest over and above the limits of the policy of liability coverage would be paid to the Plaintiffs by the Defendants and Erie Insurance Company if said pre-judgment interest was available under the terms of the policy and ordered by this Court, otherwise, the reservation of this issue by the parties would have been unnecessary and illogical in that the parties had settled the matter and did not contemplate a trial and entry of a judgment in this matter.

    31.    That in entering into the Mediated Settlement Agreement, all of the parties to said Agreement contracted away important legal rights regarding this matter for the purpose of receiving the benefits contained in the agreement.

    32.    That the reservation of the issue relating to the payment of pre-judgment interest over and above the limits of the policy of liability coverage was agreed to by the Plaintiffs in part to avoid anypotential risk of receiving a lesser amount by the jury and to conclude this matter in a more timely manner.

    33.    That the reservation of the issue relating to the payment of pre-judgment interest over and above the limits of the policy of liability coverage was agreed to by the Defendants and Erie Insurance Company to avoid the risk of an excess judgment and the additional costs, including expert witness fees and attorney fees that would likely result from the continued litigation in this matter.

    34.    That parties can settle matters and resolve disputes by entering into contracts by agreeing to special terms, conditions and provisions, all of which are binding and enforceable by the Courts.

    35.    That the parties in this matter entered into an agreement containing special terms, conditions and provisions, including the payment of pre-judgment interest over and above the limits of the policy of liability coverage if said pre-judgment interest was available under the terms of the policy and was ordered by the Court, as well as the transfer of a certain tract of real property from the Defendant, Randy Jay Thompson, to the Plaintiff, Melissa Winters, all of which this Court finds to be reasonable in considering the facts of this matter and the Court finds the conditions of the settlement agreement to be binding and enforceable.

Conclusions of Law

    . . . .

    3.    That the parties agreed and contracted to have this Court review the policy of insurance issued by Erie Insurance Company and to determine the availability of any pre- judgment interest over and above the limits of the policy of liability coverage.

    4.    That the policy of insurance issued by Erie Insurance Company provides that said Erie Insurance Company shall pay pre-judgment interest over and above the limits of the policy of liability coverage.

    5.    That the proceeds of the above described insurance policy paid to the Plaintiffs by Erie Insurance Company on behalf of the named Defendants did not exceed the limit of its policy and pre-judgmentinterest over and above the limits of the policy of liability coverage is due on the entire amount of the settlement paid to the Plaintiffs.

    6.    That the parties and Erie Insurance Company entered into the settlement agreement in this matter freely, knowingly, voluntarily and with the understanding that this Court would resolve the issue relating to pre-judgment interest and that this Court could order the payment of pre-judgment interest over and above the limits of the policy of liability coverage.

    7.    That the parties and Erie Insurance Company are bound by the terms of the Settlement Agreement entered into in this matter.

    From the order assessing prejudgment interest, defendants appeal. Defendants contend (1) the trial court lacked jurisdiction to award prejudgment interest to plaintiffs because the action was previously dismissed; (2) an offer in writing to pay the policy limit was made before suit was filed, thereby negating the insurance carrier's obligation to pay prejudgment interest; and (3) the trial court erred in awarding prejudgment interest to plaintiffs because there was no “judgment” upon which the court could award prejudgment interest. We resolve this appeal based upon defendants' third contention and make no comment on the merits of the remaining arguments.
    The rules for interpreting the language of an insurance policy have long been established. An insurer has no obligation to pay prejudgment interest in addition to its stated limit of liability unless specifically provided for in the insurance contract. Nationwide Mutual Ins. Co. v. Mabe, 342 N.C. 482, 490, 467 S.E.2d 34, 39 (1996). Moreover, “'[w]here the language of a contract is plain and unambiguous, construction of the agreement is a matter oflaw; and the court may not ignore or delete any of its provisions, . . . but must construe the contract as written, in light of the undisputed evidence as to the custom, usage and meaning of its terms.'” Gore v. Nationsbanc Ins. Co., 153 N.C. App. 520, 522, 570 S.E.2d 115, 116 (2002) (quoting DeMent v. Nationwide Mut. Ins. Co., 142 N.C. App. 598, 601, 544 S.E.2d 797, 799-800 (2001)).
    The trial court found, inter alia, that (1) the proceeds of the insurance policy paid to plaintiffs did not exceed the limit of liability, and (2) that no offer in writing was made by defendants to pay the limit of protection. The trial court correctly acknowledged, in Finding of Fact 30, that there was no “judgment” entered in this matter upon which the “prejudgment interest” could attach. Indeed, a judgment is “'[t]he final decision of the court resolving the dispute and determining the rights and obligations of the parties.'” Poole v. Miller, 342 N.C. 349, 352, 464 S.E.2d 409, 411 (1995) (quoting Black's Law Dictionary 841-42 (6^th Ed. 1990)). This Court has recognized that a settlement agreement amounts to a release of claims and not a judgment. Barnes v. Hardy, 98 N.C. App. 381, 384, 390 S.E.2d 758, 760 (1990).
    After examining the language of the policy in light of the foregoing rules, we conclude that the only reasonable interpretation of the prejudgment interest section is that its application was premised on the entry of a judgment. Therefore, even if all the other conditions were met (i.e., payment did not exceed the limit of liability, and no offer in writing to pay the full limit of protection was made), defendants were not obligatedunder the terms of the insurance policy to pay prejudgment interest in the absence of a judgment.   (See footnote 2)
    Although not essential to our holding, we note the following. Plaintiffs generally fail to describe with clarity the legal grounds upon which they rely in contending the trial court's order should be affirmed. To the extent plaintiffs contend a separate contract between themselves and the insurance carrier arose with terms and conditions that did not require that prejudgment interest be predicated on a judgment, plaintiffs provide no authority or argument related to how the trial court could properly compel the insurance carrier to pay prejudgment interest in the procedural manner presented here, a motion in the cause in an action for which the insurance carrier is not a party. To the extent plaintiffs contend they would lose the benefit of their bargain if the trial court's order on prejudgment interest is not affirmed, it appears plaintiffs have received the benefit of their bargain: consideration by the courts of the “possibility” that they could recover prejudgment interest.    Assuming arguendo the trial court's authority to determine the prejudgment interest issue reserved for it by the parties, the fact remains that they agreed the carrier would pay prejudgment interest only if it was available under the policy. It is not. And even if, as plaintiffs contend, the possibility of “the payment of the interest in addition to the policy limits was essential for the settlement of this case[,]” this cannot change the fact that, again, there was no “judgment.”
    Because defendants' obligation to pay prejudgment interest under the terms of the insurance policy was contingent upon the entry of a judgment and no such judgment was entered, the trial court erred in granting plaintiffs' motion for prejudgment interest.
    Reversed.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

Footnote: 1