How to access the above link?
Return to nccourts.org
Return to the Opinions Page
Wrongful Death_motorcycle accident_not survivorship action
When a single negligent act of the defendant causes a decedent's injuries and those
injuries unquestionably result in the decedent's death, the plaintiff's remedy for the decedent's
pain and suffering and medical expenses lies only in a wrongful death statute and must be
asserted under that statute. Recovery is distributed in accordance with the intestate succession
statute and is not subject to claims against the estate; otherwise, the two-year statute of
limitations for wrongful death actions could be circumvented.
Teague Campbell Dennis & Gorham, L.L.P. by Michael D. Moore
for plaintiff-appellant.
Robinson Elliott & Smith by Kevin D. Elliott for defendant-
appellee.
STROUD, Judge.
Plaintiff State Auto Insurance Co. appeals the trial court
order awarding summary judgment to defendant Christian Earl Blind
in a negligence action filed pursuant to North Carolina's
survivorship statute, N.C. Gen. Stat. § 28A-18-1 (2005). Section
28A-18-1 provides that claims in favor of or against a decedent at
the time of his death “shall survive to and against the personal
representative or collector of his estate.” N.C. Gen. Stat. § 28A-
18-1 (2005). In Alston v. Britthaven, Inc., this Court determinedthat damages arising from a decedent's pain and suffering and
medical expenses that are caused by the negligent act of a
defendant may be recovered under section 28A-18-1. Alston v.
Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824 (2006), disc.
rev. denied, 361 N.C. 218, 642 S.E.2d 242 (2007). This Court's
holding in Alston was dependent upon pleadings and evidence which
suggested two possible causes of the decedent's death: one cause
of death which would be considered a “wrongful act” or “neglect”
under North Carolina's wrongful death statute, N.C. Gen. Stat. §
28A-18-2 (2005), and one natural cause of death. Id. at 340, 628
S.E.2d at 831. The dispositive question before this Court is
whether plaintiff may sustain a negligence action filed pursuant to
section 28A-18-1 when the pleadings allege that a single negligent
act of defendant caused decedent James Leland Bantz's injuries and
those injuries unquestionably resulted in Bantz's death.
On 25 May 2002, defendant collided with Bantz in a motor
vehicle accident at an intersection on North Carolina Highway 28
near Franklin in Macon County, North Carolina. At that time,
defendant was making a left turn from the northbound lane of
Highway 28 in a 1988 Honda and Bantz was driving a Harley-Davidson
motorcycle in the southbound lane of Highway 28. On 18 March 2005,
plaintiff filed suit in Superior Court, Polk County alleging the
following additional facts:
7. That prior to initiating his turn,
defendant observed James Bantz
approaching on his motorcycle.
8. That James Bantz applied his brakes but
was unable to stop his motorcycle beforecolliding with the vehicle driven by
defendant.
9. That prior to collision, James Bantz's
motorcycle left a skid mark of 35 feet, 1
inch.
10. That subsequent to the collision, James
Bantz was thrown from his motorcycle,
coming to rest approximately 36 feet from
the point of impact.
11. That as a result of the collision, James
Bantz suffered massive trauma to his face
and body.
12. That James Bantz was pronounced dead at
the scene by emergency personnel. His
body was transported to Angel Medical
Center in Franklin, North Carolina where
he was pronounced dead on arrival.
13. That James Bantz's death was directly and
proximately caused by the collision with
defendant's vehicle.
Plaintiff further alleged that defendant operated his vehicle in a
negligent manner and that defendant's negligence was the “sole and
proximate cause of the collision.”
Based on these allegations, plaintiff brought two claims. In
its first claim, entitled “Wrongful Death Action,” plaintiff sought
“compensatory damages for wrongful death” pursuant to N.C. Gen.
Stat. § 28A-18-2 (2005). In its second claim, entitled “Survival
Action,” plaintiff sought “recovery at common law for [Bantz's]
pain and suffering, as well as medical expenses incurred.”
Defendant answered, in part, that plaintiff's wrongful death claim
was barred by expiration of the two-year statute of limitations set
forth in N.C. Gen. Stat. § 1-53(4) (2005). Plaintiff voluntarily dismissed its claim for wrongful death
with prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a)
(2005). Thereafter, defendant moved for summary judgment, alleging
that “[p]laintiff filed a wrongful death action after the two year
statute of limitations and . . . has forwarded no evidence that
would forecast this matter should move forward under any other
theory of recovery.” Defendant argued that plaintiff's complaint,
on its face, shows that Bantz did not experience compensable “pain
and suffering” or incur “medical expenses” because Bantz, who
sustained “massive trauma to his face and body,” was pronounced
dead by emergency medical personnel at the accident scene.
Defendant did not submit affidavits or other documentary evidence
in support of its motion for summary judgment but based its motion
entirely on the allegations in plaintiff's complaint. Similarly,
plaintiff presented no evidence and submitted no affidavits at the
summary judgment hearing. Plaintiff argued that it properly pled
its survivorship claim separately from its claim for the decedent's
wrongful death.
Judge Zoro J. Guice, Jr. heard defendant's motion on 17 July
2006 in Superior Court, Polk County. On 11 August 2006, Judge
Guice granted defendant's motion. Plaintiff appealed.
Because defendant based his argument solely on the pleadings
and submitted no affidavits or documentary evidence in support of
his position, defendant's motion is properly classified as a motion
for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1,
Rule 12(c). See N.C. Gen. Stat. § 1A-1, Rule 12(c) (2005)(explaining “[i]f, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to and not excluded by
the court, the motion shall be treated as one for summary
judgment”); In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158,
159, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992) (“[A]
motion is treated according to its substance and not its label.”).
This Court reviews the trial court's award of judgment on the
pleadings de novo. Toomer v. Branch Banking & Trust Co., 171 N.C.
App. 58, 66, 614 S.E.2d 328, 334, disc. rev. denied, 360 N.C. 78,
623 S.E.2d 263 (2005). To prevail on a motion for judgment on the
pleadings, the moving party must show that he is entitled to
judgment as a matter of law, even when all allegations set forth in
the complaint are taken as true. De Torre v. Shell Oil Co., 84
N.C. App. 501, 504, 353 S.E.2d 269, 271 (1987).
N.C. Gen. Stat. § 28A-18-1(a) provides that “[u]pon the death
of any person, all demands whatsoever, and rights to prosecute or
defend any action or special proceeding, existing in favor of or
against such person, except as provided in subsection (b) hereof,
shall survive to and against the personal representative or
collector of his estate.” Claims filed pursuant to N.C. Gen. Stat.
§ 28A-18-1(a) are generally known as “survivorship actions.”
N.C. Gen. Stat. § 28A-18-2(a) provides that
[w]hen the death of a person is caused by a
wrongful act, neglect or default of another,
such as would, if the injured person had
lived, have entitled him to an action for
damages therefor, the person or corporation
that would have been so liable, and his or
their personal representatives or collectors,
shall be liable to an action for damages.“Damages recoverable for death by wrongful act include . . . (1)
[e]xpenses for care, treatment and hospitalization incident to the
injury resulting in death” and “(2) [c]ompensation for pain and
suffering of the decedent.” N.C. Gen. Stat. § 28A-18-2(b). Claims
filed pursuant to N.C. Gen. Stat. § 28A-18-2(a) are generally known
as “wrongful death actions.”
“[A]ny common law claim which is now encompassed by the
wrongful death statute must be asserted under that statute.”
Christenbury v. Hedrick, 32 N.C. App. 708, 712, 234 S.E.2d 3, 5
(1977). This means that when “the elements of damage which [a]
plaintiff seeks to recover” are recoverable under N.C. Gen. Stat.
§ 28A-18-2(b), a wrongful death action is the only action that the
plaintiff may sustain to recover those damages. Id. (dismissing
the plaintiff's common law negligence action after determining that
“the elements of damage which [a] plaintiff seeks to recover” are
“encompassed by” N.C. Gen. Stat. § 28A-18-2(b)). These “elements
of damage” include the pain and suffering of a decedent and medical
expenses incurred by a decedent. Id. at 703, 234 S.E.2d at 3; N.C.
Gen. Stat § 28A-18-2(b). Here, plaintiff filed a common law
negligence action pursuant to North Carolina's survivorship
statute, seeking recovery for Bantz's pain and suffering and
medical expenses.
This Court has previously considered whether a plaintiff may
plead a survivorship claim as an alternative to a wrongful death
claim “where (1) the same injuries are the basis for both the
survivorship and wrongful death claims and (2) a jury might findthe defendant's negligence did not result in the decedent's death
but did result in his injuries prior to death.” Alston, 177 N.C.
App. at 333, 628 S.E.2d at 827-28. In Alston, the plaintiff's
claims for survivorship and wrongful death arose from alleged
nursing home neglect, which caused the decedent to suffer multiple
bed sores. Id. at 331-32, 628 S.E.2d at 826-27. The plaintiff
alleged that septicemia resulting from the bed sores caused the
decedent's death and sought recovery for the decedent's pain and
suffering and medical expenses under both theories. Id. at 332,
628 S.E.2d at 827. The defendant answered that Alzheimer's disease
caused the decedent's death. Id.
This Court held that “wrongful death and survivorship claims
may be brought as alternative claims for the same negligent acts.”
Alston, 177 N.C. App. at 339, 628 S.E.2d at 831. In so holding,
the Court reasoned that the plaintiff could prevail only on its
survivorship claim if the jury found that the defendant's
negligence caused the decedent's bed sores but that the decedent
ultimately died of another cause (Alzheimer's disease). Id.
Correspondingly, the plaintiff could prevail on the wrongful death
claim if the jury found that the defendant's negligence caused both
the decedent's pain and suffering and the decedent's death. Id.
(See footnote 1)
The Court's holding ensured that the plaintiff was not “prevented
from even a single recovery” for the decedent's pain and suffering
and medical expenses by permitting the plaintiff to recover in
survivorship if his wrongful death claim failed. Id. at 340, 628
S.E.2d at 831-32.
However, the Court emphasized in Alston that
It is vital to distinguish [Alston] from those
where no alternate explanation exists as to
the cause of death. In such cases, pursuant to
the 1969 statutory changes, the survivorship
claims included in the wrongful death statute,
which are pain and suffering, medical costs,
and punitive damages, may be pursued as part
of a wrongful death action.
Id. at 340, 628 S.E.2d at 831 (emphasis added); see also
Christenbury, 32 N.C. App. at 712, 234 S.E.2d at 5 (explaining that
“any common law claim which is now encompassed by the wrongful
death statute must be asserted under that statute”). Here, the
facts alleged by plaintiff, when deemed admitted, establish thatBantz died at the accident scene of fatal injuries sustained during
the collision. These injuries are the basis for both plaintiff's
survivorship and wrongful death claims; thus, plaintiff seeks to
recover damages for its “Survival Action,” that are identical to
damages plaintiff could have recovered in its “Wrongful Death
Action,” if plaintiff had filed its complaint in a timely manner.
Applying Christenbury and Alston, we hold that when a single
negligent act of the defendant causes a decedent's injuries and
those injuries unquestionably result in the decedent's death, the
plaintiff's remedy for the decedent's pain and suffering and
medical expenses lies only in a wrongful death claim. Such claim
is “encompassed by the wrongful death statute” and “must be
asserted under that statute.” Christenbury, 32 N.C. App. at 712,
234 S.E.2d at 5. To hold otherwise would allow plaintiffs to
circumvent the two-year statute of limitations for wrongful death
actions set forth in N.C. Gen. Stat. § 1-53(4) (2005) by waiting an
additional year before filing the same claim, titled as a
“survivorship” claim. See N.C. Gen. Stat. § 1-52(16) (2005)
(establishing a three-year statute of limitations for personal
injury claims “[u]nless otherwise provided by statute”) (emphasis
added).
We recognize that the entity entitled to recover damages
awarded in a survivorship action is different from the individuals
entitled to recover damages awarded in a wrongful death action.
The judgment entered in a survivorship action is an asset of the
decedent's estate and is subject to claims against the estate. N.C. Gen. Stat. § 28A-18-1; In re Estate of Parrish, 143 N.C. App.
244, 253, 547 S.E.2d 74, 79, disc. review denied, 354 N.C. 69, 553
S.E.2d 201 (2001). However, recovery in a wrongful death action is
distributed to the decedent's survivors in accordance with North
Carolina's intestate succession statute and is not subject to
claims against the decedent's estate. N.C. Gen. Stat. § 28A-18-2;
In re Estate of Parrish, 143 N.C. App. at 253, 547 S.E.2d at 79.
This Court has consistently recognized the distinction described
above and applied the language of each statute as written by the
North Carolina General Assembly. See Forsyth County v.
Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, cert. denied, 283
N.C. 752, 198 S.E.2d 722 (1973) (reasoning that “items of damage
which might conceivably have been set out in a claim for personal
injuries prior to death are now includable [sic] in an action for
damages for death by wrongful act” and that a creditor of the
decedent's estate could not collect its debt from funds recovered
in the wrongful death action). Accordingly, this distinction does
not affect our analysis in the case sub judice.
For the reasons stated above, the trial court did not err by
granting defendant's “Motion for Summary Judgment.” Accordingly,
the order entered 11 August 2006 in Superior Court, Polk County by
Judge Zoro J. Guice, Jr. is affirmed.
AFFIRMED.
Judges McCULLOUGH and BRYANT concur.
*** Converted from WordPerfect ***