Aetna Ins. Co. v. Carroll's Transfer, Inc.

Decision Date24 May 1972
Docket NumberNo. 726SC387,726SC387
Citation14 N.C.App. 481,188 S.E.2d 612
PartiesAETNA INSURANCE COMPANY, v. CARROLL'S TRANSFER, INC., and Webster R. Daniels.
CourtNorth Carolina Court of Appeals

Briggs, Meadows & Batts, by Charles B. Winberry, Rocky Mount, for defendant-appellant.

Battle, Winslow, Scott & Wiley, by Robert L. Spencer, Rocky Mount, for plaintiff-appellee.

BROCK, Judge.

This is an attempted appeal by defendant-appellant Carroll from a denial of its motion entitled 'Motion to Sever and Remove.' Carroll contends that the trial court erred in denying its motion to sever because Aetna's two claims, one claim asserted against Carroll and the alternative claim against Daniels, cannot be joined in one civil action. However, Carroll admits that if joinder of the alternative claim is proper, then there is no question that the venue in Bertie County is proper.

G.S. § 1A--1, Rule 20(a) specifically allows alternative joinder of defendants. 'All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and of any question of law or fact common to all parties well arise in the action.' G.S. § 1A--1, Rule 20(a).

Alternative claims may be joined under G.S. § 1A--1, Rule 20(a) if two tests are met. First, each claim must arise out of the same transaction, the same occurrence, or a series of either. In this case, Aetna's alternative claim against the defendants arises out of the alleged transaction between Carroll and Daniels, in that Carroll or someone on its behalf paid a sum of money to Daniels in full settlement of a claim to which Aetna was subrogated. The second test is that each claim must contain a question of law or fact, which will arise, common to all parties. The second test is satisfied in this case because Aetna's claim for relief arises from a common question of fact--which of the defendants owes plaintiff the $8,196.10. If Carroll or someone on its behalf paid a sum of money to Daniels in full settlement, Daniels has delivered none of the proceeds of the settlement to Aetna. Nor has Carroll paid any money directly to Aetna for the damages to the vehicle of its insured to which claim Aetna is subrogated by its payment to Daniels.

Therefore, the facts alleged in Aetna's complaint support alternative joinder. 'The practical occasion for alternative joinder is that created by uncertainty as to which of several parties is entitled to recover or is liable. Obviously uncertainty more frequently exists with respect to the person liable than to the person entitled, hence alternative joinder of defendants is more frequent.' 1 McIntosh, N.Car.Pract. & Proc.2d, § 661.

Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted initial joinder, there are provisions in G.S. § 1A--1, Rule 20(b) and G.S. § 1A--1, Rule 42(b) for the trial judge to sever and order separate trials.

'Rule 20(b) gives this power ...

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13 cases
  • Wachovia Bank & Trust Co. v. Smith, 793SC145
    • United States
    • North Carolina Court of Appeals
    • February 5, 1980
    ...and Procedure § 661 (2nd ed. 1956). See, E. g., Woods v. Smith, 297 N.C. 363, 255 S.E.2d 174 (1979); Aetna Insurance Co. v. Carroll's Transfer, Inc., 14 N.C.App. 481, 188 S.E.2d 612 (1972). Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted ini......
  • Wallace by Magers v. Evans, 8221SC170
    • United States
    • North Carolina Court of Appeals
    • December 21, 1982
    ...or issues." "Whether ... there should be severance rests in the sound discretion of the trial judge." Insurance Co. v. Transfer, Inc., 14 N.C.App. 481, 484, 188 S.E.2d 612, 614 (1972). See also Board of Transportation v. Royster, 40 N.C.App. 1, 5, 251 S.E.2d 921, 924 While severance is disc......
  • Fulk v. Piedmont Music Center
    • United States
    • North Carolina Court of Appeals
    • June 20, 2000
    ...of abuse of discretion or of a showing that the order affects a substantial right of the moving party." Insurance Co. v. Transfer, Inc., 14 N.C.App. 481, 484, 188 S.E.2d 612, 614 (1972). Additionally, N.C.R. Civ. P. 20 provides in part ... All persons may be joined in one action as defendan......
  • Woods v. Smith
    • United States
    • North Carolina Supreme Court
    • June 12, 1979
    ...set forth in the complaint." 7 Wright & Miller, Federal Practice and Procedure: Civil, § 1654, p. 278. Aetna Ins. Co. v. Carroll's Transfer, Inc., 14 N.C.App. 481, 188 S.E.2d 612 (1972) citing 1 McIntosh, N. C. Practice & Procedure, § Plaintiff-Woods' situation presents a classic example of......
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