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McCrary v. Byrd2/1/2000
Appeal by plaintiff from orders entered 28 July 1998 and 7 December 1998 by Judge Preston Cornelius in Guilford County Superior Court. Heard in the Court of Appeals 5 January 2000.
Suzanne English McCrary (plaintiff) is a resident of Randolph County. Plaintiff brings this action by and through her father, who is her general guardian. Teresa Byrd (defendant Byrd) is a resident of Alamance County. Defendant Ham's Restaurants, Inc., is a North Carolina corporation which has various places of business in the State.
On 23 October 1997, plaintiff brought this personal injury action against defendant Byrd and defendant Ham's Restaurants, Inc. Plaintiff alleged that on the evening of 18 October 1991, both plaintiff and defendant Byrd were present in the Ham's Restaurant in Burlington, but were seated at different tables; that both plaintiff and defendant Byrd left the restaurant at about the same time. Plaintiff further alleged in her complaint that she had a "brief exchange" with defendant Byrd in the parking lot of the restaurant; that plaintiff became "visibly upset" after the exchange; that defendant Byrd got into her car and exited the parking lot; that plaintiff ran toward defendant Byrd's vehicle, attempting to flag Byrd down, lost her balance, and fell onto the road; that defendant Byrd's vehicle ran over plaintiff, resulting in serious injury to plaintiff.
Police officers arrived on the scene at approximately 12:43 a.m., and arrested defendant Byrd for driving under the influence . On 8 January 1992, defendant Byrd pled guilty to the charge of impaired driving under N.C. Gen. Stat. ยง 20-138.1 (1999). As a result of the accident, plaintiff suffered serious brain injury and other physical injuries and was later adjudicated to be legally incompetent. Defendant Byrd contends that plaintiff was also intoxicated at the time of the accident.
At the time of the accident which is the subject of this lawsuit, plaintiff apparently was an "insured" under three policies of automobile insurance issued by Nationwide Mutual Insurance Company (Nationwide) to plaintiff's father, which policies provided underinsured motorist coverage to plaintiff. The Nationwide policies contain an arbitration provision. On 8 December 1997, Nationwide, as a potential underinsured motorist carrier, filed an answer asking that the court allow it to appear as an unnamed defendant and pleading the plaintiff's alleged intoxication as a defense. Thereafter, the parties engaged in discovery. Plaintiff served interrogatories and requests for production of documents on defendants Byrd and Ham's and on unnamed defendant Nationwide. In addition, plaintiff took the deposition of defendant Byrd and five other witnesses. Nationwide served interrogatories and requests for production of documents on plaintiff and noticed the depositions of plaintiff, her parents, and plaintiff's toxicologist. On 26 June 1998, Nationwide made a motion to compel the deposition testimony of plaintiff's toxicologist, and a motion for sanctions against plaintiff for failure to comply with discovery requests. On 6 July 1998, plaintiff made a motion to compel arbitration. On 20 July 1998, Nationwide made a motion to prohibit arbitration.
On 22 July 1998, the trial court heard arguments on Nationwide's motions to compel deposition testimony and motion for sanctions, Nationwide's motion to prohibit arbitration, plaintiff's motion for a protective order and plaintiff's demand for arbitration. The trial court found, among other things, that "plaintiffs [Suzanne McCrary and Charles McCrary] wilfully failed to present themselves or Susan McCrary [plaintiff's mother] or Andrew Mason [plaintiff's toxicologist] for the depositions at th
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