Davis v. Urquiza

Davis v. Urquiza

Opinion

 [*462]   [**328]  Appeal by plaintiffs from order entered 11 March 2013 by Judge James M. Webb in  [**329]  Surry County Superior Court. Heard in the Court of Appeals 18 February 2014.

STEELMAN, Judge.

] Where valid service of process was not made upon an uninsured motorist carrier within the applicable statute of limitations period, the trial court did not err in granting the motion of the uninsured motorist carrier to dismiss for insufficient process or insufficient service of process.

I. Factual and Procedural Background

On 15 July 2009, Deaven Grey Davis, then a minor, was a passenger in a vehicle struck by another vehicle operated by Hermilo Salazar Urquiza ("defendant"). On 31 May 2012, Deaven Davis, along with her parents, Danette and Dickie G. Davis (collectively, "plaintiffs") filed  [*463]  suit against defendant, seeking monetary damages for personal injuries resulting from the collision.

Defendant  [***2] was an uninsured motorist. Plaintiffs contended that North Carolina Farm Bureau Mutual Insurance Company ("Farm Bureau") provided uninsured motorists' coverage for the collision in accordance with N.C. Gen. Stat. § 20-279.21(b)(3). Defendant was served with a copy of the summons and complaint on 29 July 2012. Plaintiffs also contended that National Grange Insurance Company ("National Grange") provided applicable uninsured motorists' coverage.

On 5 June 2012, counsel for plaintiffs mailed a copy of the summons and complaint to Steve Wagoner, a claims adjuster for Farm Bureau, by certified mail, at Wagoner's office in Wilkesboro. These documents were received on 7 June 2012. On 6 July 2012, Farm Bureau filed an answer to plaintiffs' complaint, as an unnamed party, specifically asserting the defenses of insufficiency of process and insufficiency of service of process, as well as the statute of limitations. On 27 December 2012, Farm Bureau gave notice to plaintiffs of a hearing on 7 January 2013 concerning its motion to dismiss based upon insufficiency of process and insufficiency of service of process. On 31 December 2012, Farm Bureau served the affidavit of H. Julian Philpott, Jr. This  [***3] affidavit stated that Steve Wagoner "was not now, nor has he ever been an officer, director or managing agent of North Carolina Farm Bureau Mutual Insurance Company, nor has he ever been a designated process agent for that company..."

Plaintiffs caused alias and pluries summonses to be issued by the Clerk of Superior Court of Surry County, directed to defendant, on 20 July 2012, 25 September 2012, and 10 December 2012. On 2 January 2013, plaintiffs mailed a copy of the summons and complaint to Wayne Goodwin, Commissioner of Insurance, by certified mail, in order to serve Farm Bureau in accordance with the provisions of N.C. Gen. Stat. § 58-16-30. This was received by the Commissioner of Insurance on 7 January 2013.

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