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Simpson v. McConnell6/4/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
This action arises out of a motor vehicle accident in Onslow County on 19 May 1996. Plaintiff, Reginald Simpson, was injured in a collision with a vehicle being operated by Jeremy Nason, who died at the scene. Plaintiff filed a complaint in Brunswick County Superior Court against Nationwide Mutual Insurance Company, plaintiff's underinsured motorist carrier, and the Estate of JeremyNason. The action against Nationwide was dismissed on 24 August 1999, and the derivative action against Nason's Estate was dismissed on 28 September 1999.
Defendant Kevin McConnell was appointed Administrator of Nason's Estate on 30 March 2000. Plaintiff filed this complaint against McConnell and Nationwide on 8 May 2000, alleging, inter alia, negligence and unfair or deceptive trade practices. Both defendants filed motions to dismiss for failure to state a claim upon which relief could be granted. The trial court granted Nationwide's motion on 22 November 2000, and McConnell's motion on 11 December 2000, based on the expiration of the statute of limitations. Plaintiff appeals.
Plaintiff's sole argument on appeal is whether the trial court erred in dismissing his complaint for failure to state a claim on which relief can be granted because the complaint does not show on its face that the statute of limitations had run. We hold that the trial court erred in part and reverse as to plaintiff's unfair or deceptive trade practices claim.
I. Negligence
Plaintiff argues that his negligence claim is not barred because N.C.G.S. § 1-22 extends the time period for filing claims against Nason's estate after appointment of the administrator. We disagree. The statute of limitations for a negligence claim is three years. N.C.G.S. § 1-52 (2001). However, because this is an action against the estate of the deceased tortfeasor, N.C.G.S. § 1-52 is not the only statute we must consider.
N.C.G.S. § 1-22 provides:
If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative or collector after the expiration of that time; provided, the action is brought or notice of the claim upon which the action is based is presented to the personal representative or collector within the time specified for the presentation of claims in G.S. 28A-19-3. N.C.G.S. § 1-22 (2001).
"N.C. Gen. Stat. § 1-22 modifies the operation of the general three-year statute of limitations applicable to plaintiff's claim to comport with that 'time specified for the presentation of claims in G.S. 28A-19-3.'" Lassiter v. Faison, 111 N.C. App. 206, 208, 432 S.E.2d 373, 374 (1993). N.C.G.S. § 1-22 was not intended to be a restriction on the statute of limitations so that a claim should become barred by the lapse of a year from the grant of letters, where, in regular course, but for this section, it would not be barred until a later date. Ingram v. Smith, 16 N.C. App. 147, 150, 191 S.E.2d 390, 393 (1972) (citations omitted); see also Lassiter v. Faison, 111 N.C. App. 206, 432 S.E.2d 373 (1993).
N.C.G.S. § 28A-19-3(b)(2) governs limitations on the presentation of claims against decedents' estates, and provides inpertinent part that claims not founded in con
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