Atwood v Eagle, et al, (04-501) 03/15/2005

Appeal by defendant/third-party plaintiff from order entered 30 January 2004 by Judge Mark E. Klass in Davie County Superior Court. Heard in the Court of Appeals 17 February 2005.

BROTHERTON FORD YEOMAN & WORLEY, P.L.L.C., by Joseph F. Brotherton and Steven P. Weaver, for defendant/third-party plaintiff-appellant Auto Owners Insurance Company.

HORTON AND GSTEIGER, P.L.L.C., by Urs R. Gsteiger, for third- party defendant-appellee.

    TIMMONS-GOODSON, Judge.

    Auto Owners Insurance Company (“Auto Owners”) appeals the trial court order dismissing its third-party complaint against Nelson Boyles Niblock & Green (“Nelson Boyles”). For the reasons discussed herein, we dismiss the appeal.
    The facts and procedural history pertinent to the instantappeal are as follows: On 19 November 1999, Steven B. Atwood (“Atwood”) was injured in an automobile collision in Winston-Salem, when a vehicle in which he was a passenger collided with a vehicle driven by Rosemary Berg Eagle (“Eagle”) and owned by Michael R. Berg (“Berg”). On 9 April 2002, Atwood filed a complaint against Eagle and Berg, alleging that Eagle's negligent operation of Berg's vehicle was the proximate cause of Atwood's injuries.
    At the time of the collision, Auto Owners was providing Atwood with underinsured motorist coverage. On 25 June 2002, Auto Owners filed an answer to Atwood's complaint as an unnamed defendant and denied the complaint's allegations. On 21 August 2003, Auto Owners filed a third-party complaint against Nelson Boyles. The third- party complaint contained the following pertinent allegations:
        8. In his complaint, Atwood alleges that, on or about November 19, 1999, he was a passenger in a vehicle . . . owned by Travis Cockerham and was traveling east on Stratford Road in Winston-[]Salem[.]

        9. In his complaint, Atwood alleges that, on or about November 19, 1999, Eagle was operating [a vehicle] owned by [Berg] and was traveling east on Stratford Road in Winston- Salem[.]

        10. In his complaint, Atwood alleges that the vehicle in which Atwood was a passenger was stopped in traffic behind another vehicle.

        11. In his complaint, Atwood alleges that the vehicle being operated by Eagle failed to stop behind the vehicle in which Atwood was a passenger.

        . . . .

        13. At all relevant times hereto, Eagle was an employee and/or agent of [Nelson Boyles].
        14. Eagle's duties as an employee and/or agent of [Nelson Boyles] included delivering items, correspondence, and/or other packages.

        15. At the time of the events giving rise to this lawsuit, Eagle was in the process of delivering an item, correspondence, and/or other package on behalf of [Nelson Boyles].

        16. Eagle was acting within the course and scope of her employment and/or agency with [Nelson Boyles] at the time of the events giving rise to this lawsuit.

        17. [Nelson Boyles] is responsible for the actions or omissions of its employee and/or agent, Eagle, giving rise to this lawsuit.

        18. The negligence of Eagle is imputed to [Nelson Boyles] by application of respondeat superior and general principles of agency.

        19. As a direct and proximate result of Eagle's negligence, which is imputed to [Nelson Boyles], Atwood suffered physical and mental injuries for which [Nelson Boyles] may be obligated to compensate him.

    On 3 November 2003, Nelson Boyles filed an answer to Auto Owners' third-party complaint. In its answer, Nelson Boyles denied the allegations of the third-party complaint, and it requested that the complaint be dismissed. On 30 January 2004, the trial court allowed Nelson Boyles' motion to dismiss the third-party complaint, concluding that, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), Auto Owners' complaint failed to state a claim upon which relief may be granted, and, pursuant to N.C. Gen. Stat. § 1-52, the complaint was barred by the statute of limitations. Auto Owners appeals.

The dispositive issue is whether Auto Owners' appeal should bedismissed as interlocutory. Because Auto Owners has failed to demonstrate that delay of its appeal would affect its substantial rights, we dismiss the appeal.
    Where a trial court order does not dispose of the entire controversy between all parties, it is interlocutory. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). “As a general rule, a party is not entitled to immediately appeal an interlocutory order. However, there are two situations in which an appeal of right lies from an order that is interlocutory.” Id. (citations omitted). First, where a trial court order represents a final judgment as to one but less than all of the claims of the parties, and the trial court certifies “that there is no just reason to delay the appeal” of its judgment, the order is immediately appealable. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Second, where a trial court order “'deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits[,]'” the order is also immediately appealable. Id. (quoting Southern Uniform Rentals, Inc. v. Iowa Nat'l Mutual Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988)). In the instant case, the trial court order dismissing Auto Owners' third-party complaint operates as a final judgment regarding Auto Owners' cause of action against Nelson Boyles. Beemer, 132 N.C. App. at 344, 511 S.E.2d at 311-12. Because the trial court declined to certify its order as immediately appealable, Auto Owners' right to an immediate appealdepends upon whether the order affects a substantial right.
    In determining whether a party will be prejudiced by delay of an interlocutory appeal, “'[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which the appeal is sought is entered.'” Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E. 2d 405, 408 (1982) (quoting Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E. 2d 338, 343 (1978)). In the instant case, Auto Owners asserts that the trial court order affects its substantial right to avoid separate trials on the same issue, Eagle's negligence. We note that this Court has previously concluded that “simply having all claims determined in one proceeding is not a substantial right” that requires immediate review of an interlocutory appeal. J & B Slurry Seal Co. v. Mid- South Aviation, Inc., 88 N.C. App. 1, 7, 362 S.E.2d 812, 816 (1987). Nevertheless, while “[a]voiding separate trials of different issues does not qualify as a substantial right, . . . preventing separate trials of the same factual issues does constitute a substantial right.” Beemer, 132 N.C. App. at 344, 511 S.E.2d at 312.
        [W]hen common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn “creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.”
Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491 (quoting Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982)), disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989). “[I]f there are no factual issues common to the claim determined and the claims remaining, no substantial right is affected.” Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 200, 464 S.E.2d 720, 722 (1995).
    In the instant case, although facts involved in the underlying claim may overlap facts involved in Auto Owners' third-party claim against Nelson Boyles, we conclude Auto Owners will not be prejudiced by delay of its appeal. While Atwood's claim against Eagle and Berg seeks to determine whether Eagle negligently operated Berg's vehicle at the time of the accident, Auto Owners' third-party claim against Nelson Boyles seeks to determine whether Eagle was acting as Nelson Boyles' agent at the time of the accident. The factual issues related to Eagle's alleged agency are wholly independent of those related to her alleged negligence. Therefore, were we to delay the consideration of the instant appeal, there is no possibility of inconsistent verdicts. Following determination of the underlying claim, if this Court reversed the trial court order dismissing Auto Owners' claim, the factual issues in dispute in Auto Owners' claim against Nelson Boyles would not concern or depend upon those factual issues already determined in the underlying claim. The fact-finder would not be asked to determine whether Eagle or Berg was negligent at the time of the accident, but whether Eagle was acting as an agentof Nelson Boyles at the time of the accident.
    In light of the foregoing conclusions, we hold that Auto Owners' instant appeal is interlocutory. Accordingly, we dismiss the appeal.
    Dismissed.
    Judge BRYANT concurs.
    Judge LEVINSON concurs with separate opinion.
    Report per Rule 30(e).

NO. COA04-501

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

STEVEN B. ATWOOD,
Plaintiff,

v .                             Davie County
                                No. 02 CVS 541
ROSEMARY BERG EAGLE
and MICHAEL R. BERG,
and AUTO OWNERS INSURANCE
COMPANY,
    Defendants and
    Third-Party Plaintiff,

NELSON, BOYLES,
NIBLOCK & GREEN,
Third-Party Defendant.

LEVINSON, Judge concurring with separate opinion.

I write separately only to note that, in addition to the reasons set forth in the majority opinion to support the conclusion that Auto Owners has failed to demonstrate that delay of its appeal would affect its substantial rights, I also rely on Third-Party Defendant's representation before this Court that the jury's resolution of “the issue of Rosemary Berg's negligence . . . would be binding in the third-party action.” Accordingly, there cannot, as the majority correctly observes, be the possibility of inconsistent verdicts.

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