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Safety Mutual Casualty Corp. v. Spears11/5/1991
The issue here is whether the trial court erred in granting summary judgment for defendants. We hold that the trial court did not err. Accordingly, we affirm the judgment.
Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter
of law. G.S. 1A-1, Rule 56. Defendants contend that they are entitled to summary judgment because the plaintiffs' contribution actions against DOT and REA were not time barred when defendants withdrew as plaintiffs' counsel in the third-party action.
Contribution is governed by Chapter 1B of the General Statutes. Both parties agree that this case is controlled by G.S. 1B-3(d), which provides:
If there is no judgment for the injury or wrongful death against the tort-feasor seeking contribution, his right of contribution is barred unless he has either
(1) Discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against him and has commenced his action for contribution within one year after payment,
(2) Agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution, or
(3) While action is pending against him, joined the other tort-feasors as third-party defendants for the purpose of contribution.
The record reveals that third-party claims for contribution were brought on behalf of plaintiffs while the two actions at issue were pending. Accordingly, G.S. 1B-3(d)(3) applies. However, in this case the underlying claims were settled and dismissed with no judgment entered against plaintiffs or their insured. Plaintiffs contend that G.S. 1B-3(d)(3) provides for a one-year limitation period for refiling the contribution claims while defendants contend that a three-year limit applies. We hold that G.S. 1B-3(d)(3) must be read to provide for a three-year statute of limitations.
Unlike G.S. 1B-3(d)(1) and (d)(2) which explicitly state a one-year statute of limitation, G.S. 1B-3(d)(3) is silent as to the statute of limitations period. The Supreme Court has said, " he statute of limitations, although not an unconscionable defense, is not such a meritorious defense that either the law or the facts should be strained in aid of it." Hardbarger v. Deal, 258 N.C. 31, 35, 127 S.E.2d 771, 774 (1962) (quoting Rochester v. Tulp, 54 Wash. 2d 71, 337 P.2d 1062 (1959)). " f the Legislature has failed to fix
any time, the Courts cannot, in a given case, supply this legislative lapse. The fixing of the time within which to bring suit, under such circumstances, is purely a legislative function. It is not within the power of the judiciary." Barnhardt v. Morrison, 178 N.C. 563, 568, 101 S.E. 218, 221 (1919) (quoting Adams and Freese Co. v. Kenoyer, 16 L.R.A. (N.S.) 683).
Here, the legislature has failed to fix a time in G.S. 1B-3(d)(3) for refiling contribution claims in the situation where a party brings a claim for contribution that is voluntarily dismissed after settlement of the underlying claim. However, the legislature has provided that a three-year statute of limitations applies " pon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it." G.S. 1-52(2). G.S. 1B-3(d)(3) mentions no other time
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