Andersen v. Baccus

• Decision Date: 28 January 1994
• Docket Number: No. 111PA93,111PA93
• Citation: 439 S.E.2d 136,335 N.C. 526
• Parties: James J. ANDERSEN, Jr., Individually and as Administrator of the Estate of Saundra L. Andersen, Deceased, and the Estate of John Laurits Andersen, Deceased v. Marilyn Combs BACCUS, Murray Elton Baccus, and an Unknown Person.
• Court: North Carolina Supreme Court

Page 136

439 S.E.2d 136

335 N.C. 526

James J. ANDERSEN, Jr., Individually and as Administrator of

the Estate of Saundra L. Andersen, Deceased, and the Estate of John Laurits Andersen, Deceased v. Marilyn Combs BACCUS, Murray Elton Baccus, and an Unknown Person.

No. 111PA93.

Supreme Court of North Carolina.

Jan. 28, 1994.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 109 N.C.App. 16, 426 S.E.2d 105 (1993), reversing summary judgment granted in favor of plaintiff on defendant State Farm Mutual Automobile Insurance Company's counterclaim for declaratory judgment and reversing summary judgment granted in favor of all defendants on plaintiff's claim for negligent infliction of emotional distress by orders entered 4 November and 8 November 1991 by Greeson, J., in Superior Court, Pasquotank County. Heard in the Supreme Court 11 October 1993.

D. Keith Teague, P.A. by D. Keith Teague, Elizabeth City, for plaintiff-appellant Andersen.

Baker, Jenkins, Jones & Daly, P.A. by Robert C. Jenkins and Roger A. Askew, Ahoskie, for defendants-appellants Marilyn Combs Baccus and Murray Elton Baccus.

Hornthal, Riley, Ellis & Maland by L.P. Hornthal, Jr. and John D. Leidy, Elizabeth City, for defendant-appellant State Farm Mutual Automobile Insurance Company.

PARKER, Justice.

This case arose out of a collision on 5 February 1988 between an automobile driven by defendant Marilyn Combs Baccus and an automobile driven by Saundra L. Andersen, wife of plaintiff James J. Andersen, Jr. The collision occurred when defendant Marilyn Baccus swerved to avoid colliding with a third automobile, a Ford station wagon driven by an unknown person. The third automobile did not stop at the scene and the driver has never been identified. Plaintiff did not witness the accident but was brought to the scene of the accident before his wife was freed from the wreckage. After being freed, Mrs. Andersen was taken to a local hospital and the next day gave birth to a stillborn son, John Laurits Andersen. On 26 March 1988 Mrs. Andersen died from injuries allegedly received in the accident.

Plaintiff's complaint alleged claims for wrongful death of his wife and son, punitive damages based thereon, negligent infliction of emotional distress, and punitive damages based thereon. The alleged liability of defendant State Farm Mutual Automobile Insurance Company ("State Farm") was based on its status as insurer of the automobile driven by plaintiff's intestate under a policy providing uninsured motorist coverage. Defendant State Farm asserted a counterclaim for declaratory judgment on the basis that there was no contact between any person or vehicle and the Ford automobile and "[i]n particular, there was no contact between said Ford station wagon or any person or vehicle insured under said policy."

Prior to trial defendant State Farm moved for summary judgment on its counterclaim. State Farm and defendants Baccus moved for summary judgment on plaintiff's claims for wrongful death and negligent infliction of emotional distress. After a hearing, the trial court (i) denied State Farm's motion for summary judgment on its counterclaim but granted summary judgment for plaintiff on the issue of uninsured motorist coverage; (ii) entered summary judgment for defendants on plaintiff's claim for negligent infliction of emotional distress; (iii) denied defendants' motions for summary judgment on the wrongful death claims; and (iv) granted defendants partial summary judgment as to plaintiff's claim for punitive damages related to the wrongful death claims.

On appeal to the Court of Appeals plaintiff did not pursue the punitive damages claims. As to the claims appealed, the Court of Appeals reversed the trial court's judgments. This Court granted all parties' petitions for discretionary review, Andersen v. Baccus, 333 N.C. 574, 429 S.E.2d 568-69 (1993); and for the reasons which follow, we affirm in part and reverse in part.

In reversing summary judgment for plaintiff on the uninsured motorist issue, the Court of Appeals first concluded that the policy issued by defendant State Farm "clearly require[d] that the unidentified vehicle make contact with the insured or the insured's auto." Andersen v. Baccus, 109 N.C.App. at 19, 426 S.E.2d at 107. The court also considered whether the policy was in conflict with the uninsured motorist statute, N.C.G.S. § 20-279.21 (1993), and concluded that statute does not "provide for uninsured motorist coverage where a phantom vehicle allegedly cause[s] a collision between two other automobiles but make[s] no physical contact with either." Andersen v. Baccus, 109 N.C.App. at 19, 426 S.E.2d at 107. The Court of Appeals also relied on its cases interpreting the statute as requiring a collision direct or indirect, between a hit-and-run driver's car and that of the insured. Petteway v. South Carolina Insurance Co., 93 N.C.App. 776, 379 S.E.2d 80 (affirming summary judgment for defendant insurance company based on lack of contact), disc. rev. denied, 325 N.C. 273, 384 S.E.2d 518 (1989); McNeil v. Hartford Accident and Indemnity Co., 84 N.C.App. 438, 352 S.E.2d 915 (1987) (reversing summary judgment for defendant insurance company based on indirect contact); Hendricks v. Guaranty Co., 5 N.C.App. 181, 167 S.E.2d 876 (1969) (affirming involuntary nonsuit for defendant insurance company based on lack of contact). The court also stated:

Our interpretation of [section 20-279.21] is further supported by the fact that the legislature has undertaken to amend the uninsured motorist statute subsequent to this Court's first interpreting it as requiring physical contact between the insured and the hit-and-run driver. To date, it has not chosen to amend the statute to indicate that [such] physical contact is not required. When the legislature acts, it is always presumed that it acts with full knowledge of prior and existing law; and where it chooses not to amend a statutory provision that has been interpreted in a specific, consistent way by our courts, we may assume that it is satisfied with that interpretation. Thus, in consideration of the time-tested prior rulings of this Court, we are constrained to conclude that any shift away from the "physical contact" requirement must derive not from this Court, but from legislative action, or action by our Supreme Court[,] which is the final arbiter for interpreting the statutes of this state.

Andersen v. Baccus, 109 N.C.App. at 22, 426 S.E.2d at 108-109 (citations omitted).

We approve the careful reasoning of the Court of Appeals. Adhering to the principle of stare decisis, we decline to change existing judicial interpretation of the uninsured motorist statute, especially in light of the legislature's recent revision. See N.C.G.S. § 20-279.21 (1993).

Summary judgment is to be granted

"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R.Civ.P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

Applying these principles, we note that the forecast of evidence before the trial court showed there was no collision or contact between the automobile driven by the unknown motorist and any other automobile, including that driven by plaintiff's intestate. Therefore, defendant State Farm was entitled to judgment as a matter of law; and we conclude the Court of Appeals did not err in reversing summary judgment for plaintiff on this issue.

We next consider the Court of Appeals' reversal of summary judgment for all defendants on plaintiff's claim for negligent infliction of emotional distress. Before this Court defendants contend that they were entitled to summary judgment on plaintiff's claim for negligent infliction of emotional distress and that the Court of Appeals erred in concluding it was reasonably foreseeable that plaintiff Andersen would suffer such distress. We agree. The Court of Appeals, relying on two of its recent decisions, based its analysis on the foreseeability element of a claim for negligent infliction of emotional distress. The cases relied on, however, have recently been reversed by this Court. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 108 N.C.App. 668, 424 S.E.2d 676, rev'd, 334 N.C. 669, 435 S.E.2d 320 (1993); Gardner v Gardner, 106 N.C.App. 635, 418 S.E.2d 260 (1992), rev'd, 334 N.C. 662, 435 S.E.2d 324 (1993). Accordingly, in the case under review, we reverse the decision of the Court of Appeals on the issue of foreseeability.

In Sorrells this Court reiterated that to state a claim...