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Ragan v. Hill9/9/1994
FRYE, Justice.
In this appeal, plaintiffs contend that the Court of Appeals erred in holding that their personal injury action was barred because a claim was not presented to the personal representative of decedent's estate within six months of decedent's death. Plaintiffs further contend that defendant and plaintiffs' underinsured motorist carrier are estopped from asserting this time bar as a defense because they did not raise the defense until twenty-two months after the complaint was filed and after representing during discovery that no such defense was present. We find it unnecessary to address plaintiffs' estoppel argument since we conclude that the applicable statute does not operate in this case to bar plaintiffs' cause of action.
On 23 March 1986, Edith B. Ragan was driving an automobile owned by Mae White Womble along Highway 55 near Fuquay-Varina. Ragan sustained serious permanent injuries when a vehicle driven by Jerry Wayne Thomas veered into the path of the Womble vehicle, causing a head-on collision. Thomas died as a result of injuries suffered in the accident. It is undisputed that Thomas was negligent in the operation of his automobile and that his negligence resulted in serious personal injury to Ms. Ragan and a loss of consortium to Mr. Ragan. The collision also involved Dr. John K. Williford, whose vehicle collided into the rear of the Womble vehicle. Although Dr. Williford was a defendant in this case at trial, the jury found no negligence on his part and he is not a party to this appeal.
On 8 July 1988, plaintiffs initiated this action against James T. Hill, Administrator of Thomas' estate, and against Williford. Integon Insurance Company, Thomas' liability carrier, elected not to file an answer on defendant's behalf and admitted liability to the extent of its $25,000 policy limit. Nationwide Mutual Insurance Company, the underinsured motorist (UIM) carrier for the Womble vehicle, filed an answer on behalf of defendant Hill. Pursuant to N.C.G.S. § 20-279.21(b), the Ragans' UIM carrier, North Carolina Farm Bureau Insurance Company (Farm Bureau), also filed an answer in its own name denying any negligence on the part of Thomas and asserting a second defense of contributory negligence. On 6 July 1990, defendants Hill and Farm Bureau were granted leave to amend their answers to add a defense of statute of limitations. Prior to trial, defendants Hill and Farm Bureau filed motions for summary judgment which were denied. On 6 February 1991, Farm Bureau elected, pursuant to N.C.G.S. § 20-279.21(b), to appear and participate in the trial in the name of James T. Hill, Administrator of the Estate of Jerry Wayne Thomas.
The case came on for trial before Judge J. Milton Read, Jr. Defendant Hill moved for a directed verdict at the close of plaintiffs' evidence and again at the close of all the evidence. Judge Read denied both motions. On 13 September 1991, the jury returned a verdict in favor of Ms. Ragan in the amount of $325,000 for her personal injuries and in favor of Mr. Ragan in the amount of $10,000 for loss of consortium. Defendant Hill then filed a motion for judgment notwithstanding the verdict, and Judge Read denied that motion and entered judgment on the jury's verdict. Defendants Hill and Farm Bureau appealed.
The Court of Appeals reversed, holding that the case was indistinguishable from Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988), which held that a similar claim was barred by time limitations under N.C.G.S. § 28A-19-3. This statu
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