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State v. Stockton5/19/1998
y, regarding actions brought by a liquidator of a North Carolina insurance company, N.C.G.S. § 58-30-130(b)(1994) provides:
The liquidator may, upon or after an order for liquidation, within two years or such subsequent time period as applicable law may permit, institute an action or proceeding on behalf of the estate of the insurer upon any cause of action against which the period of limitation fixed by applicable law has not expired at the time of the filing of the petition upon which such order is entered.
Accordingly, under G.S. § 58-30-130(b), we must first decide whether the complaint reflects that plaintiff's claims expired before filing of the petition upon which the order of liquidation was entered. If not, we must then determine whether the complaint indicates the instant action was instituted prior to running of the statute of limitations period on the respective claims alleged therein, or within two years after entry of the order of liquidation, whichever period is longer.
There is no contention by defendants that the statute of limitations on plaintiff's negligence claim expired prior to filing of the petition upon which the order of liquidation was entered. Regarding the second inquiry, however, plaintiff's complaint indisputably was not filed within two years of the 2 April 1993 order of liquidation. Hence, plaintiff's negligence cause of action is saved only if it accrued within three years prior to the 1 April 1996 filing of the present complaint.
As noted above, G.S. § 1-15(c) prescribes that a malpractice claim accrues "at the time of the occurrence of the last act of the defendant giving rise to the cause of action." An analysis of plaintiff's complaint reveals the actions complained of refer in the main to defendants' representation of ILA in the loans to Googe and his companies which closed 3 January 1991. Taking 3 January 1991 as the date of defendants' last alleged negligent act, therefore, plaintiff's claim would be barred. In response, however, plaintiff first asserts that the doctrine of "continuous representation" preserves its negligence claim.
Our Supreme Court has recently adopted the "continuing course of treatment" doctrine with respect to medical malpractice actions. Horton, 344 N.C. at 137, 472 S.E.2d at 781 (1996). Under this rule, running of the statute of limitations period is tolled during the time a physician continues to treat a patient in relation to the original act, omission, or failure which gave rise to the claim. Id. To take advantage of the doctrine, a patient must allege the physician could have taken further action to remedy damage occasioned by the original negligence. Id. at 140, 472 S.E.2d at 782.
However, this Court has considered, but never specifically adopted, application of "continuing course of treatment" principles to instances of alleged legal malpractice. See Sharp v. Teague, 113 N.C. App. 589, 594-95, 439 S.E.2d 792, 795-96 (1994); see also Hargett v. Holland, 337 N.C. 651, 656-58, 447 S.E.2d 784, 788-89, reh'g denied, 338 N.C. 672, 453 S.E.2d 177 (1994). Moreover, assuming arguendo without deciding that the doctrine is properly enlisted in instances of alleged legal malpractice, plaintiff's negligence claim herein nonetheless fails.
First, a simple allegation of continuous representation standing alone does not suffice. In order for running of the statute of limitations regarding the original negligent act to be tolled, it must appear that the continuous representation relates to that original act. Horton, 344 N.C. at 137, 472 S.E.2d at 781. The complaint at issue did not allege continuous representation of ILA through 1 April 1993 by defendants in connection with
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