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Reese v. Barbee6/16/1998
N.C. Gen. Stat. § 1A-1, Rule 4(e); Lackey v. Cook, 40 N.C. App. 522, 253 S.E.2d 335, disc. review denied, 297 N.C. 610, 257 S.E.2d 218 (1979). The last alias and pluries summons preceding the summons issued to Nationwide was issued 25 September 1996 and expired ninety days thereafter, discontinuing the action as to any defendant not served. N.C. Gen. Stat. § 1A-1, Rule 4(e). Plaintiff obtained service of process on Nationwide on 25 April 1997, more than ninety days after issuance of the last preceding summons. Therefore, the service of process on Nationwide did not relate back to the issuance of the original summons in this action.
G.S. § 1-53(4) requires that an action for wrongful death be commenced within two years of the date of the decedent's death. This action was not commenced as to Nationwide within two years of decedent's death and is therefore barred. Though Nationwide's liability is derivative of defendant Barbee's, Nationwide is not precluded from asserting the statute of limitations as a defense where plaintiff has not timely commenced her action against it, even though the defense may not be available to the tortfeasor. The order dismissing plaintiff's action against Nationwide is affirmed.
Affirmed.
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