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Terrell v. Lawyers Mutual Liability Insurance Company12/15/1998
Appeal by plaintiff from order filed 20 May 1997 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 30 March 1998.
Plaintiff appeals from the trial court's order dismissing her complaint.
On 9 May 1995, plaintiff brought suit against attorney Mark D. Hockman (Hockman), asserting legal malpractice in his handling of her medical malpractice claim. At that time, Hockman had a professional liability insurance policy (policy) with defendant Lawyers Mutual Liability Insurance Company of North Carolina.
On 22 July 1996, defendant withdrew Hockman's liability coverage and terminated the defense for "Hockman's failure to perform a condition precedent to continued coverage under the policy." Thereafter, Hockman and plaintiff entered into a memorandum of settlement in which Hockman agreed to confess judgment in the amount of $75,000, and plaintiff agreed to execute such judgment only against the policy. Additionally, Hockman assigned any rights he had against defendant under the policy or under tort law to plaintiff. On 25 September 1996, the confession of judgment was entered against Hockman in the amount of $75,000.
On 30 January 1997, plaintiff filed suit against defendant alleging that, as Hockman's assignee, she was entitled to recover against defendant for defendant's alleged breach of contract with Hockman or for any tort rights that Hockman had against defendant. In addition, plaintiff also sought a declaratory judgment declaring that "a valid and enforceable contract of liability insurance existed between the defendant and Mark D. Hockman for which to pay the settlement and Judgment of the plaintiff."
Defendant filed its amended answer on 15 April 1997, denying the material allegations of the complaint and setting forth affirmative defenses. Defendant attached to the amended answer, as an exhibit, a copy of the insurance policy issued to Hockman. Also, on 15 April 1997, defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
After a hearing on defendant's motion, the trial court dismissed plaintiff's complaint in an order filed 20 May 1997. Specifically, the trial court held that defendant was entitled to a dismissal of plaintiff's claims pursuant to Rule 12(b)(6)
or alternatively, to the extent that in reaching its determination on Lawyers Mutual's motion the Court considered the policy of insurance attached as Exhibit A to the Amended Answer of Lawyers Mutual and the Court determined, in its discretion, to treat Lawyers Mutual's motion as one for judgment on the pleadings, Lawyers Mutual is entitled to judgment on the pleadings under North Carolina Rules of Civil Procedure 12(c) and 10(c).
On appeal, plaintiff contends the trial court erred by dismissing plaintiff's complaint under Rule 12(b)(6) or alternatively, in the trial court's discretion, under Rule 12(c).
We first note plaintiff failed to refer to the assignments of error following the statement of the questions presented as required by Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure and, therefore, these assignments of error may be deemed abandoned. N.C.R. App. P. 28(b)(5); see Hines v. Arnold, 103 N.C. App. 31, 37, 404 S.E.2d 179, 183 (1991). However, " o prevent manifest inJustice," we deem it appropriate, pursuant to Rule 2, to dispose of the appeal on the merits. N.C.R. App. P. 2.
Pursuant to N.C. Gen. Stat. ยง 1A-1, Rule 12(b)(6) (1990), the trial court may dismiss a claim for " ailure to state a claim upon which relief can be granted." A complaint, however, should not be dismissed unless the party is not enti
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