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Thomas v. Washington3/7/2000
Appeal by plaintiff from summary judgment entered 22 January 1999 by Judge Sanford L. Steelman, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 12 January 2000.
On 31 March 1995, Kenya Paylor Thomas (plaintiff) was injured in an automobile accident when her vehicle was struck by an uninsured vehicle driven by defendant Olando Elliot Washington and owned by defendant Darrell A. Campbell. At the time of the accident, plaintiff's vehicle was insured by the unnamed defendant North Carolina Farm Bureau Mutual Insurance Company (Farm Bureau). The Farm Bureau policy provided uninsured motorist coverage to plaintiff.
On 2 March 1998, plaintiff instituted this action against the defendants by filing a complaint and having a summons issued for defendants Washington and Campbell. Defendant Washington was personally served with summons and complaint on 10 March 1998 and defendant Campbell was personally served on 16 March 1998. Neither defendant filed an answer. On 25 March 1998, plaintiff issued an alias or pluries summons directed to defendants Washington and Campbell. A second alias or pluries summons was issued on 18 June 1998, again directed to defendants Washington and Campbell. Additional alias or pluries summonses were issued on 19 August 1998, 2 October 1998, 16 November 1998, and 8 December 1998. It does not appear from the record that any of the enumerated alias or pluries summonses were ever delivered to the Sheriff for service, or were served on either defendant.
On 14 August 1998, plaintiff issued a summons directed to "H. Julian Philpott, Jr., Registered Agent for North Carolina Farm Bureau Agency, 5301 Glenwood Avenue, Raleigh, NC 27612." Copies of the summons and complaint were mailed to Mr. Philpott by certified mail, return receipt requested, and were received by him on 17 August 1998. On 21 August 1998, an alias or pluries summons was issued directed to "H. Julian Pilpott , Jr." The 21 August 1998 summons was apparently not delivered to the Sheriff or served in any other fashion, and bears a notation that it was "Retained by Atty."
On 17 September 1998, Farm Bureau filed an answer to the complaint, pleading the three-year statute of limitations in bar, and moving to dismiss the action pursuant to the provisions of Rules 12(b)(4), (5) & (6), for "insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted." Plaintiff then mailed a copy of a summons and complaint by certified mail, return receipt requested, to "H. Julian Philpott, Jr., Registered Agent for North Carolina Farm Bureau Agency, 5301 Glenwood Avenue, Raleigh, NC 27612." Mr. Philpott received the mailing on 6 October 1998.
Plaintiff issued yet another alias or pluries summons on 16 November 1998, again directed to H. Julian P ilpott, Jr., as registered agent for "NC Farm Bureau Agency." The record on appeal does not indicate that there was an effort to serve the 16 November 1998 summons. A final alias or pluries summons was issued on 8 December 1998 and directed to "H. Julian Pilpott , Jr., Registered Agent for North Carolina Farm Bureau Mutual Insurance Company." The 8 December 1998 summons was mailed to P ilpott by certified mail, return receipt requested, and was received by him on 10 December 1998. A copy of the 8 December 1998 alias or pluries summons with the complaint attached was also mailed to Gary K. Sue, as the attorney for Farm Bureau.
The trial court heard Farm Bureau's motion to dismiss on 4 January 1999. The trial court considered the affidavit of the litigation supervisor for Farm Bureau and converted the hearing on the motion to dismiss into a hearing on a motion
Page 1 2 3 4 North Carolina Personal Injury Attorneys
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