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Boomer v. Caraway11/1/1994
LEWIS, Judge.
Plaintiff's intestate died from injuries received in an automobile accident with defendant on 31 August 1988. Plaintiff's attorney at the time, Samuel L. Whitehurst, and defendant's liability insurance carrier agreed to settle plaintiff's wrongful death claim, and on 31 October 1988 defendant's insurance company issued a check for $25,000 payable to plaintiff and her attorney. On 1 November 1988 plaintiff executed a release.
It is undisputed that Whitehurst embezzled the proceeds of the settlement and was subsequently disbarred. In May 1991 plaintiff retained her present counsel and filed an action against Whitehurst. Plaintiff initially recovered $11,369 through the North Carolina State Bar, which had imposed a restraining order on Whitehurst's trust account. The parties reached a consent judgment of $100,000 with a cash settlement of $22,000. However, Whitehurst did not carry professional liability insurance and subsequently filed for bankruptcy .
Plaintiff instituted the present action on 7 August 1992, asserting negligence on behalf of defendant and demanding compensatory and punitive damages in excess of $10,000. In his answer to the complaint, defendant pled the two-year wrongful death statute of limitations and the release signed by plaintiff on 1 November 1988. Defendant moved for judgment on the pleadings and for Rule 11 sanctions. Defendant also alleged contributory negligence and asserted entitlement to a credit for the $25,000 already paid to plaintiff and Whitehurst. The trial court granted defendant's motion for summary judgment on 3 September 1993, and plaintiff now appeals.
It is clear that plaintiff's action was filed after the applicable statute of limitation had expired. N.C.G.S. § 1-53(4) (1983) provides that wrongful death actions must be brought within two years from the death of the decedent. The decedent in this case died on 2 September 1988, and plaintiff filed this action on 7 August 1992, clearly beyond the two-year period.
On appeal, plaintiff argues that defendant should be estopped from asserting the statute of limitation as a defense because of the provisions of N.C.G.S. § 28A-13-3(a)(23) (Cum. Supp. 1993). That statute provides that a wrongful death settlement "shall be subject to the approval of a Judge of superior court unless all persons who would be entitled to receive any damages . . . are competent adults and have consented in writing." Id. The beneficiaries of the settlement in the case at hand are the decedent's two minor children. The settlement, therefore, should have been approved by a Judge. Plaintiff points out that neither party moved for a court order approving the settlement. Plaintiff asserts that by failing to obtain judicial approval defendant enabled plaintiff's attorney to take the money, and defendant should therefore be estopped from now asserting the statute of limitation. Plaintiff asserts that defendant's conduct in failing to seek approval "induced Mrs. Boomer to believe that the claim of the Estate had been concluded, and resulted in her failure to file a lawful claim within" the limitation period.
The statute, however, does not stipulate which party has the responsibility of obtaining judicial approval, and we find nothing to support plaintiff's contention that defendant had a duty to obtain judicial approval. Plaintiff cites the case of Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, disc. review denied, 307 N.C. 696, 301 S.E.2d 389 (1983), in support of her position. In Bowling, the Court stated that the original administrator failed to
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