An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-76

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007

DANIEL KOSEK,
    Plaintiff,

v .                         Mecklenburg County
                            No. 03-CVS-8228
KAREN DENISE BARNES,
    Defendant.

    Appeal by Plaintiff from judgment entered 11 April 2005 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 10 October 2006.

    Charles G. Monnett III & Associates, by Charles G. Monnett, III, for plaintiff-appellant.

    McAngus, Goudelock & Courie, P.L.L.C., by John T. Jefferies and Janiere E. Taylor, for defendant-appellee.

    Golding, Holden, & Pope, L.L.P., by C. Byron Holden and J. Scott Bayne, for unnamed defendant-appellee.

    WYNN, Judge.

    Plaintiff and Defendant respectively appeal and cross appeal from a judgment arising from a damages only personal injury trial. For the reasons stated herein, we affirm.
    This matter arose on 27 May 2000 when a vehicle driven by Defendant Karen Barnes rear-ended a stopped vehicle driven by Plaintiff Daniel Kosek. Plaintiff brought this negligence action against Defendant alleging that the accident caused him to suffer traumatic brain injury. Defendant initially denied liability, but eight months before trial made an offer of judgment in the amountof fifty-thousand dollars for all damages. Plaintiff refused the offer.
    Four days before trial, Defendant stipulated that her negligence caused the accident but denied that her negligence caused Plaintiff's injuries. Thereafter, the trial court bifurcated the trial proceedings between compensatory damages and punitive damages. The jury awarded Plaintiff $17,382.00 in compensatory damages and no punitive damages. From that judgment, Plaintiff appealed and Defendant cross-appealed.

Appellant-Plaintiff's Arguments on Appeal
    On appeal, Plaintiff contends the trial court erred by (I) allowing Defendant's motion in limine excluding impeachment evidence during the compensatory phase of the trial; (II) permitting counsel for the unnamed defendant underinsured motorist carrier, State Farm Insurance Company, to participate fully as if it were a named party without identifying such party; (III) allowing Defendant's oral motion to amend her answer to admit negligence after the start of the trial; and (IV) excluding evidence of injuries and damages sustained by Plaintiff which were not disputed by Defendant.
I.

    Plaintiff first contends the trial court erred in allowing Defendant's motion in limine excluding evidence during the compensatory phase of the trial that Defendant consumed alcohol before the wreck, and that shortly after the wreck, Defendant fileda police report falsely claiming her car had been stolen. We disagree.
    Preliminarily, we note that Section 1D-30 of the 2003 North Carolina General Statutes permits, upon motion of a defendant, the issues of liability and compensatory damages to be tried separately from the issues of liability and punitive damages. In such bifurcated trials, “[e]vidence relating solely to punitive damages shall not be admissible until the trier of fact has determined that the defendant is liable for compensatory damages and has determined the amount of compensatory damages.” N.C. Gen. Stat. § 1D-30 (2003).
    Here, during the compensatory phase of the trial, Defendant, testifying as Plaintiff's witness, stated:
        “I would say . . . everybody was probably doing 25 to 35, and then the light turned yellow and I saw his brake lights . . . . I just couldn't get stopped in time.”

Defendant was unable to offer more on her speed at the moment of impact. Regarding Defendant's observations of Plaintiff during the accident, Defendant testified:
        “[a]t the very moment that I struck [Plaintiff's] car I did not observe his body in [the] car . . . .”

And, regarding damages to Plaintiff's car, Defendant testified:
        “I did not see [Plaintiff's] car. I left the scene. I'm sure there was damage because I struck the rear of his car.”

As to whether she “agreed” that Plaintiff was injured in the collision, Defendant responded:         “At the time of the accident I really didn't see how anybody could be hurt. But if he's hurt, he's hurt.”

Counsel for Defendant objected, the jury was excused, and counsel for Plaintiff conducted a voir dire of Defendant focusing on her level of intoxication at the time of the accident, as well as her false report to police that her car had been stolen. Defendant acknowledged that she made a statement to police that she had consumed a beer and a half to three beers on the day of and prior to the accident, and that police found as many as ten empty beer cans in her car. Defendant also confirmed that she falsely reported her vehicle stolen. At the conclusion of the voir dire, the trial court ruled that Plaintiff could not elicit evidence of Defendant's impairment at the time of the accident nor of her false claim to police.
    In general, Section 1D-30 of the North Carolina General Statutes precludes the admission of evidence relating solely to punitive damages during the compensatory damages phase of a bifurcated trial. N.C. Gen. Stat. § 1D-30 (2003); e.g., Boykin v. Morrison, 148 N.C. App. 98, 557 S.E.2d 583 (2001) . However, Plaintiff argues that admission of this evidence was relevant to impeach the credibility of Defendant's testimony regarding her perception of the impact's severity.
    Under North Carolina Rule of Evidence 607, “[t]he credibility of a witness may be attacked by any party, including the party calling him[,]” N.C. Gen. Stat. § 8C-1, Rule 607 (2003); however, “[t]he impeaching proof must be relevant within the meaning of Rule401 and Rule 403 . . . .” State v. Bell, 87 N.C. App. 626, 633, 362 S.E.2d 288, 292 (1987) (citation, quotation, and emphasis omitted). Rule 403 states that relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” N.C. Gen. Stat. § 8C-1, Rule 403 (2003).     Here, Defendant testified before the jury that she rear-ended Plaintiff's car. However, she disputed the force of the impact, stating, “at the time of the accident I really didn't see how anyone could be hurt”. Moreover, in prior testimony before the jury, she stated she did not observe Plaintiff's movements within his vehicle and she left the scene before she could see the damage she had done to Plaintiff's car. So, while Defendant testified to the fact of an impact, her statements regarding the severity or force of the impact had little probative value and were tempered by her admission that she did not observe the effect of the impact on Plaintiff or his vehicle.
     “The extent to which cross-examination for impeachment is to be permitted rests largely in the discretion of the trial judge. McCorkle v. Beatty, 226 N.C. 338, 341, 38 S.E.2d 102, 105 (1946) (citations omitted). “This Court may reverse for abuse of discretion only upon a showing that the trial court's order is manifestly unsupported by reason. Clark v. Pendland, 146 N.C. App. 288, 291, 552 S.E.2d 243, 245 (2001) (citation and quotation omitted).
    Here, given the relatively low probative value of Defendant's testimony and the inflammatory nature of her collateral acts, wecannot say the trial court's ruling was beyond the scope of reason. Accordingly, we hold that the trial court did not abuse its discretion by excluding this evidence under Rule 403.
II.

    Plaintiff next argues the trial court erred in permitting counsel for the unnamed defendant underinsured motorist carrier, State Farm Insurance Company, to participate fully as if it were a named party without identifying such party. We disagree.
    Under Section 20-279.21(b)(4) of the 1999 North Carolina General, a party seeking underinsured motorist coverage, must notify the underinsured motorist insurer of the action. Thereafter, “[u]pon receipt of notice, the underinsured motorist insurer shall have the right to appear in defense of the claim without being named as a party therein, and without being named as a party may participate in the suit as fully as if it were a party .” N.C. Gen. Stat. § 20-279.21(b)(4) (1999).
    Plaintiff contends that while the underinsured motorist statute states that an underinsured motorist carrier “may participate as fully as if it were a named party,” the legislative intent was not to provide insurance carriers an unfair advantage at trial by allowing counsel for the defendant and counsel for the unnamed insurance carrier to participate at trial simultaneously.
Plaintiff cites Church v. Allstate Ins. Co., 143 N.C. App. 527, 547 S.E.2d 458 (2001) and Sellers v. North Carolina Farm Bureau Mut. Ins. Co., 108 N.C. App. 697, 424 S.E.2d 669 (1993), as focusing on the underinsured motorist insurance carrier's right to participateat trial, after the tortfeasor had been released. Plaintiff argues that these cases indicate it is appropriate for the underinsured motorist insurance carrier to participate at trial, after the tortfeasor's release, because the tortfeasor no longer has a financial interest in the outcome. He contends, in contrast, that when the tortfeasor continues to participate along side the underinsured motorist insurance carrier, the plaintiff is prejudiced by simultaneous confrontation from counsel for the defendant as well as counsel for the underinsured motorist insurance carrier. We do not find this argument persuasive.
    Section 20-279.21(b)(4) of the 1999 North Carolina General Statutes requires a party, injured by the operation of an underinsured car, who sues to recover, to give the underinsured motorist insurance carrier notice when the claim is filed. See also Gurganious v. Integron, 108 N.C. App. 163, 423 S.E.2d 317 (1992). Section 20-279.21(b)(4) further states that upon receipt of notice, the underinsured motorist insurance carrier may participate as fully as if it were a party, without being named as a party. See also Church v. Allstate Ins. Co., 143 N.C. App. 527, 547 S.E.2d 458 (2001) (holding it is a substantial right to appear at trial and remain unnamed during the liability phase). And, even when the tortfeasor is released from the action, the underinsured motorist insurance carrier may continue the case in the tortfeasor's name. E.g., Sellers v. N.C. Farm Bureau Mut. Ins. Co., 108 N.C. App. 697, 424 S.E.2d 669 (1993). Thus, the underinsured motorist insurance carrier has the right to participate, at trial, as an unnamedparty, and our precedent holds that this right is not dependent upon the participation of the tortfeasor.
    Accordingly, we hold the trial court did not err in permitting counsel for the unnamed defendant, the underinsured motorist insurance carrier - State Farm Insurance Company, to participate fully as if it were a named party, without identifying such party, prior to the release of the tortfeasor or the primary insurance carrier. We, therefore, reject this assignment of error.
III.

    Plaintiff next argues that the trial court erred in allowing Defendant to amend her answer to admit negligence at the start of the trial because it was untimely and prejudicial. We disagree.
    Under Rule 15(a) of the North Carolina Rules of Civil Procedure, a trial judge has broad discretion to grant or deny a party's motion to amend his pleading by leave of the court. N.C. Gen. Stat. § 1A-1, Rule 15(a) (2005); e.g., Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542 (1980). A party objecting to the grant or denial of an amendment made by leave of the court has the burden of establishing how the grant or denial would result in undue prejudice to that party. Id. at 60, 270 S.E.2d at 544 . This Court can review the trial court's exercise of discretion only for a clear showing of abuse. Id. at 60-61, 270 S.E.2d at 544 . An abuse of discretion being a trial court order manifestly unsupported by reason. Clark v. Penland, 146 N.C. App. 288, 291, 552 S.E.2d 243, 245 (2001).    Similar to the issue here, in Watson v. Watson the trial court granted the defendant's motion to amend his answer on the day trial calendar was called, when the plaintiff had subpoenaed witnesses from out of town. 49 N.C. App. 58, 270 S.E.2d 542 (1980). This Court noted that North Carolina Civil Procedure Rule 15 had no time limit, and the trial judge was given broad discretion under Rule 15(a) to grant or deny a motion to amend the pleading by leave of the court. Id. Thus, this Court held the trial judge was within his sound discretion to grant the defendant's motion to amend his pleading. Id.
     Here, Plaintiff argues that the trial court's grant of Defendant's motion to amend her answer prejudiced his ability to present his case, as he had already prepared an opening statement, trial themes, and a tentative witness order. However, because Watson controls the issue in this case, we hold that the trial court was within its discretion to allow the amendment, and Plaintiff has not demonstrated undue prejudice. Accordingly, we hold the trial court did not err in granting Defendant' motion to amend her answer.
IV.

    Plaintiff next contends the trial court erred in excluding relevant testimony by Defendant regarding the injuries and damages sustained by Plaintiff, which was not disputed by Defendant.
    We summarily reject this argument. At trial, Defendant testified, that at the time of the accident, she did not see Plaintiff in the car nor did she see the damage done to Plaintiff'svehicle. In fact, no evidence was adduced to indicate that Defendant could competently testify to Plaintiff's injuries sustained in the accident. Accordingly, we hold that the trial court did not err in precluding testimony by Defendant as to the extent of injuries and damages sustained by Plaintiff.
    We have examined Plaintiff's remaining arguments and find them unpersuasive.
Appellee-Defendant's Cross Arguments on Appeal

    On cross-appeal, Defendant contends the trial court erred by (I) denying her motion in limine to exclude all testimony and evidence related to Plaintiff's independent medical examination by Dr. Gualtieri; (II) denying her partial Rule 50 motion regarding Plaintiff's claim for lost wages as an element of damages; and (III) excluding evidence of Plaintiff's casino gambling.
I.

    Defendant first argues the trial court erred in denying her motion in limine excluding all testimony and evidence related to Plaintiff's independent medical examination by Dr. Gualtieri, an expert witness. We disagree.
    Regarding the admission of expert testimony, our Supreme Court in Howerton v. ARAI Helmet, LTD. reiterated that trial courts are afforded a wide latitude of discretion. 358 N.C. 440, 597 S.E.2d 674 (2004). The Court stated, “[g] iven such latitude, it follows that a trial court's ruling on the qualifications of an expert or the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion.” Id. at 458, 597S.E.2d at 686 (citations and quotations omitted); see also, State v. Goode, 341 N.C. 513, 528, 461 S.E.2d 631, 640 (1995) (Indices of reliability include “the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked to sacrifice its independence by accepting [the] scientific hypotheses on faith, and independent research conducted by the expert.”).
    Here, Dr. Gualtieri testified that in evaluating Plaintiff, he allowed Plaintiff to take home and complete psychological exams. Defendant contends that Dr. Gualtieri's methods of proof were not sufficiently reliable because he could not verify that Plaintiff actually completed the examinations. Defendant further argues Dr. Gualtieri failed to adequately investigate the circumstances surrounding the accident, citing Dr. Gualtieri's failure to review the police accident report, interview witnesses, view photographs of the vehicles, or obtain medical records from Plaintiff's regular physicians. In addition, Defendant argues that in measuring changes in Plaintiff's cognitive level pre- and post-accident, Dr. Gualtieri failed to evaluate Plaintiff's pre-accident cognitive level by use of formal psychological instruments. Last, Defendant argues that Dr. Gualtieri's use of office staff, none of whom were licensed psychologists, to administer and score psychological exams, was a violation of the North Carolina Psychology Practice Act.
    At trial, Dr. Gualtieri testified that he worked thirty-six years in the practice of medicine - including twenty-eightspecializing in the practice of neuropsychiatry, with approximately one-hundred and twenty published articles in the field, as well as three books. The trial court then received Dr. Gualtieri as an expert witness in the field of neuropsychiatry.
    Here, Defendant does not criticize the examinations given Plaintiff, only the manner in which Dr. Gualtieri administered those examinations. Thus, Defendant's contention regarding the control of the exam environment applies to the weight that should be given to Dr. Gualtieri's testimony, not its admissibility. Since the weight is a jury matter and not a question for this court to decide, we reject this argument.
    Next, Defendant argues that Dr. Gualtieri failed to adequately investigate the effects of the accident by failing to review police accident reports, interview witnesses, view photographs of the vehicles, or obtain medical records from Plaintiff's regular physicians. We note that Dr. Gualtieri testified that in the course of a routine medical evaluation he asks patients for a medical history, and it is not his practice to contact prior treating doctors, unless the patient is present because of a referral. However, Dr. Gualtieri testified that regarding Plaintiff's examination, he did obtain medical reports, through Plaintiff's attorney, and Plaintiff's symptoms were consistent with the accident information Plaintiff supplied. Dr. Gualtieri found no indication Plaintiff was feigning illness. As we find that Dr. Gualtieri's testimony regarding his investigation of the circumstances surrounding the accident applies to the weight thatthe jury should have given his testimony and not its admissibility, we reject this assignment of error.
    Defendant also contends that in evaluating changes in Plaintiff's cognitive level, Dr. Gualtieri failed to evaluate Plaintiff's pre-accident cognitive level by use of a formal psychological instrument. At trial, Dr. Gualtieri testified that while there were formal tests for cognitive ability, he felt they were not necessary or relevant in Plaintiff's case. Dr. Gualtieri described what he knew about Plaintiff's educational and professional attainment - a college graduate who had climbed to the position of corporate executive. Dr. Gualtieri further testified, that based on these achievements, he estimated Plaintiff's pre- accident cognitive level to have been at least average and maybe a little above average, but Plaintiff's post-accident performance was average or slightly below. Dr. Gualtieri further tempered his opinion by acknowledging that he could not conclude Plaintiff's low cognitive level performance was the result of injury sustained in an accident or due to some other cause.
    Given that on appeal, no argument was made stating that a cognitive level test was not appropriate in determining brain injury in the field of neuropsychiatry, and given that Dr. Gualtieri explained the manner in which he conducted the test, we uphold the trial court's determination to allow the jury to determine for itself its reliability.
    Defendant further argues that Dr. Gualtieri's use of office staff, none of whom were licensed psychologist, to administer andscore psychological exams was a violation of the 2003 North Carolina General Statutes Psychology Practice Act. That Act defines psychology in pertinent part as “psychological testing and the evaluation or assessment of personal characteristics such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning; counseling, psychoanalysis, psychotherapy, hypnosis, biofeedback, and behavior analysis and therapy[.]” N.C. Gen. Stat. § 90-270.2(8) (2003). Section 90- 270.16 states that “[e]xcept as provided in G.S. 90-270.4 . . ., it shall be a violation of [the Psychology Practice Act] for any person not licensed in accordance with the provisions of [the Psychology Practice Act] to practice or offer to practice psychology . . . .” N.C. Gen. Stat. § 90-270.16(b) (2003). However, Section 90-270.4(e), titled Exemptions to the Psychology Practice Act, states in pertinent part that “[n]othing in [the Psychology Practice Act] shall be construed to prevent qualified members of other professional groups from rendering services consistent with their professional training and code of ethics[.]” N.C. Gen. Stat. § 90-270.4(e) (2003).
    At trial, Dr. Gualtieri testified that the battery of psychological exams given to Plaintiff were procedures psychiatrists have traditionally performed. Absent evidence to the contrary, we can make no finding that the psychological examination supervised by Dr. Gualtieri, a board certified neuropsychiatrist, was not consistent with his professional training and code of ethics.     In sum, we hold the trial court did not err in denying Defendant's motion to exclude Dr. Gualtieri's testimony.
II.

    Defendant next argues the trial court erred in denying her Rule 50 motion, regarding Plaintiff's claim for lost wages as an element of damages, as Plaintiff failed to present competent evidence in support of any such claim, thereby entitling Defendant to directed verdict. We disagree.
    “A motion for a directed verdict tests the legal sufficiency of the evidence.” Lee v. Rice, 154 N.C. App. 471, 474, 572 S.E.2d 219, 221 (2002) (citation omitted). But, “[a] defendant is not entitled to a directed verdict or a judgment notwithstanding the verdict unless the evidence, viewed in the light most favorable to the plaintiff, establishes its defense as a matter of law.” Goodwin v. Investors Life Ins. Co., 332 N.C. 326, 329, 419 S.E.2d 766, 767 (1992) (citations omitted).
    This Court noted in Iadanza v. Harper that compensatory damages include general and special damages, stating:
        [G]eneral damages are such as might accrue to any person similarly injured, while special damages are such as did in fact accrue to the particular individual by reason of the particular circumstances of the case. . . . Special damages are usually synonymous with pecuniary loss. Medical and hospital expenses, as well as loss of earnings . . . are regarded as special damages in personal-injury cases.

Iadanza v. Harper
, 169 N.C. App. 776, 779, 611 S.E.2d 217, 221 (2005) (quotations and citations omitted).     In the light most favorable to Plaintiff, the record provides that he established a record of performance with his employer as a sales representative and then a regional vice president until his termination in 2000, after the accident. Evidence showed that before the accident, Plaintiff was energetic but changed significantly after the accident. Plaintiff had constant headaches, moments of forgetfulness, and a general inability to concentrate or focus, consistent with the effects of a mild concussion. At best, this condition caused Plaintiff's work performance to suffer ultimately resulting in his removal as sales manager. As such, we cannot say the trial court's denial of Defendant' Rule 50 motion for a directed verdict was error. Accordingly, this assignment of error is rejected.
    
III.

    Defendant next argues the trial court erred in excluding the testimony of Dr. Granager (an expert in the fields of psychiatry, neuropsychiatry, and forensic psychiatry) regarding Plaintiff's past gambling. Dr. Granager testified that by creating a budget, an amount of money he was willing to lose, when gambling in 2001, 2003, and 2004, Plaintiff evidenced planning, an executive brain function inconsistent with traumatic brain injury.
    Under Rule 403 of the North Carolina Rules of Evidence, a trial court may exclude even relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needlesspresentation of cumulative evidence.” N.C. Gen. Stat. § 8C, Rule 403 (2005).
    Here, the trial court weighed the probative value of Dr. Granager's opinion as well as the value the evidence held in sustaining the opinion, against the prejudicial affect of submitting evidence involving gambling to the jury. The trial court determined that:
        In light of . . . plaintiff's business activities and starting a new business, founding the corporation, the franchise, retaining a lawyer and (sic) have considered those factors together with the prejudicial effects (sic) that the evidence with regard to gambling on the part of the plaintiff.

        And, based upon that evidence, those considerations and Rule 403, the balancing requirement by the trial court, the [c]ourt finds that the probative value of this evidence is outweighed by the prejudicial effect of the evidence . . . .
    In light of the trial court's reasoning, we find no abuse of discretion by the trial court in excluding the proffered evidence under Rule 403. Accordingly, we uphold the trial court's ruling to exclude the testimony of Plaintiff's gambling under Rule 403 as substantially more prejudicial than probative.
    We have examined Defendant's remaining arguments on cross- appeal and find them to be unpersuasive.
    Affirmed.
    Chief Judge MARTIN and Judge MCGEE concur.
    Report per rule 30(e).

*** Converted from WordPerfect ***