Bowling v. Combs, 8213SC72

• Decision Date: 04 January 1983
• Docket Number: No. 8213SC72,8213SC72
• Court: North Carolina Court of Appeals
• Parties: Lonnie Wayne BOWLING, Sr., Administrator of the Estate of and Personal Representative of Jess Willard Bowling, Deceased v. Matthew David COMBS, Jr., J.R. Rogerson and Broughton T. Dail, Sr., t/a Hertford Supply Co.

Page 754

298 S.E.2d 754

60 N.C.App. 234

Lonnie Wayne BOWLING, Sr., Administrator of the Estate of and Personal Representative of Jess Willard Bowling, Deceased v. Matthew David COMBS, Jr., J.R. Rogerson and Broughton T Dail, Sr., t/a Hertford Supply Co.

No. 8213SC72.

Court of Appeals of North Carolina.

Jan. 4, 1983.

Walton, Fairley & Jess by Ray H. Walton, Southport, for plaintiff-appellee.

W.G. Smith and Bruce H. Jackson, Jr., Wilmington, for defendants-appellants.

WHICHARD, Judge.

I.

The issue is whether the court erred in allowing a motion by the decedent's widow to set aside a voluntary dismissal entered in an action for the decedent's wrongful death brought by an administrator who had purported to settle the action without either approval of a superior court judge or written consent of all parties entitled to receive the damages recovered, see G.S. 28A-13-3(a)(23); in substituting the widow, following the administrator's resignation and the widow's appointment as successor personal representative, as party plaintiff in the action; and in allowing the widow to prosecute the action to a judgment on a jury verdict. We find no error.

II.

On 22 February 1977 Lonnie Wayne Bowling, Sr., (hereafter Bowling) was appointed administrator of his deceased brother's estate. On 9 August 1977 Bowling, in his capacity as administrator, filed a complaint against defendants seeking damages for the wrongful death of his intestate. On 18 October 1977 he settled with defendants for $60,000 and released all claims against them. This settlement was consummated without either approval of a superior court judge or written consent of all persons entitled to receive damages, see G.S. 28A-13-3(a)(23), including Flossie "Lynn" Bowling Benton (hereafter Benton), widow of decedent. On 22 December 1977 Bowling filed a voluntary dismissal with prejudice in the action.

Over two years later Benton sought to revoke Bowling's letters of administration. On 25 January 1980 Bowling was allowed to resign as administrator, and Benton qualified as successor personal representative.

On 15 February 1980 Benton, as administratrix, moved (1) to set aside the 22 December 1977 voluntary dismissal, and (2) that she, as administratrix, be substituted as party plaintiff in the wrongful death action. By order dated 13 March 1980 Judge McLelland set aside the voluntary dismissal.

Defendants thereafter filed answers. Benton was substituted as party plaintiff by order dated 30 June 1980. She adopted the complaint, and the action proceeded to trial.

The jury returned a verdict for plaintiff in the sum of $82,500 and found that Benton was not estopped to share in the recovery. The court entered judgment on the verdict, and credited defendants with the $60,000 previously paid in the October 1977 settlement.

Defendants appeal.

III.

Defendants contend Judge McLelland erred in setting aside the voluntary dismissal, and that the trial judge erred in failing to dismiss the action on the ground that Judge McLelland's order was erroneous. We disagree.

"The right to administer on the estate of an intestate is entirely statutory." In Re Estate of Edwards, 234 N.C. 202, 203, 66 S.E.2d 675, 676 (1951). The right of action for wrongful death is also exclusively statutory. E.g., Skinner v. Whitley, 281 N.C. 476, 478, 189 S.E.2d 230, 231 (1972). Under the Wrongful Death Act, G.S. 28A-18-2, only the "collector of the decedent" or the personal representative--i.e., the administrator of an intestate, or the executor of one who dies testate--may institute an action for wrongful death; and he does so as the representative of the estate, E.g., Stetson v. Easterling, 274 N.C. 152, 155, 161 S.E.2d 531, 533 (1968); Broadfoot v. Everett, 270 N.C. 429, 431, 154 S.E.2d 522, 525 (1967). See G.S. 28A-18-2(a), -3. Because the right to an action for wrongful death "rests entirely upon [the] Act[,] ... [it] must be asserted in conformity therewith." Webb v. Eggleston, 228 N.C. 574, 576, 46 S.E.2d 700, 702 (1948). Bowling's general powers as administrator, as well as his right to sue for wrongful death as personal representative of the estate, were thus entirely statutory, and could only be exercised in conformity with the applicable statutes.

G.S. 28A-13-3(a)(23) grants to the personal representative of an estate the power

[t]o maintain actions for the wrongful death of the decedent according to the provisions of Article 18 of this Chapter and to compromise or settle any such claims, whether in litigation or not, provided that any such settlement shall be subject to the approval of a judge of superior court unless all persons who would be entitled to receive any damages recovered under G.S. 28A-18-2(b)(4) are competent adults and have consented in writing. [Emphasis supplied.]

G.S. 28A-18-2(a) provides that any recovery for wrongful death is to be distributed according to the Intestate Succession Act, G.S. 29-1 to -30. Benton, as the surviving spouse of decedent, is among the persons entitled to receive any recovery under G.S. 28A-18-2(b)(4). See G.S. 29-14. When Bowling settled the wrongful death claim with defendants without either approval by a superior court judge or Benton's written consent, he failed to exercise the powers granted him as administrator by G.S. 28A-13-3(a)(23) in conformity with its express provisions.

When Bowling commenced the wrongful death action as administrator of the estate, he was "acting in the capacity of a trustee or agent of the beneficiary of the estate." Harrison v. Carter, 226 N.C. 36, 40, 36 S.E.2d 700, 703 (1946). In that capacity he failed to exercise his statutory powers in conformity with express provisions of the applicable statute by failing to accord Benton, as a beneficiary of the wrongful death recovery, the statutory protections provided for her benefit. These circumstances constituted a "reason justifying relief from the operation of the" voluntary dismissal, G.S. 1A-1, Rule 60(b)(6); and it was therefore properly set aside. It follows that the court did not err in denying defendants' motion to dismiss on the ground that it was erroneously set aside.

IV.

Benton applied for a lump sum worker's compensation award in May 1977, and the Commission entered an order directing distribution of that award and the $60,000 wrongful death settlement. Defendants argue that Bowling was not required to obtain the written consent of Benton pursuant to G.S. 28A-13-3(a)(23) because "the general language of" that section "is not operative in a case involving the North Carolina Industrial Commission which is specifically empowered ... to order the distribution of any proceeds recovered in any action against a third party tortfeasor." See G.S. 97-10.2(f)(1).

When statutes can be reconciled by any fair construction, that construction must be adopted. See State v. Massey, 103 N.C. 356, 358, 9 S.E. 632, 632 (1889). G.S. 97-10.2(f)(1) addresses solely the distribution of proceeds of, inter alia, a wrongful death settlement, whereas G.S. 28A-13-3(a)(23) controls the manner in which a wrongful death action may be settled by an administrator. There is thus no conflict between the statutes, fairly and properly construed, and each remains effective in its respective area of application.

V.

Defendants further contend that G.S. 28A-13-3(a)(15), which authorizes the administrator to abandon claims by the estate, controls over G.S. 28A-13-(a)(23), which requires written consent of beneficiaries to settle a wrongful death claim. "It is a well established principle of statutory construction that a section of a statute dealing with a specific situation controls, with respect to that situation, other sections which are general in their application." Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969); accord, Davis v. Granite Corporation, 259 N.C. 672, 676, 131 S.E.2d 335, 338 (1963). G.S. 28A-13-3(a)(23) specifically addresses settlement of wrongful death claims and is thus controlling, even where an administrator's actions may also be characterized as abandonment of a claim by the estate within the more general language of G.S. 28A-13-3(a)(15).

VI.

Defendants next contend that because Benton was not a party to the action at the time she moved to have the voluntary dismissal set aside, and was not substituted as party plaintiff until over three months after entry of the order setting aside the dismissal, the order was erroneously entered. Generally, only a party or his legal representative has standing to have an order set aside pursuant to G.S. 1A-1, Rule 60(b); and a stranger to the action may not obtain such relief. See In re Bank, 208 N.C. 509, 181 S.E. 621 (1935); Browne v. Dept. of Social Services, 22 N.C.App. 476, 478, 206 S.E.2d 792, 793 (1974); G.S. 1A-1, Rule 60(b); W. Shuford, North Carolina Civil Practice and Procedure § 60-4 (2d ed. 1981). Under the discrete circumstances here, however, Benton cannot properly be regarded as a stranger to the action.

Bowling resigned, and Benton was appointed administratrix, on 25 January 1980. The right to prosecute a wrongful death suit belongs exclusively to the personal representative of the estate. Stetson, Broadfoot, supra; G.S. 28A-18-2(a), -3. "[U]pon the ... resignation ... of a personal representative, who has properly brought an action for wrongful death, the action does not abate." Harrison v. Carter, 226 N.C. 36, 40, 36 S.E.2d 700, 703 (1946). G.S. 28A-10-5(1) provides that a resignation "shall not become effective until [, inter alia,] ... [a] successor has been duly qualified." " 'Where an executor or administrator has been removed or discharged, the suit should be continued in the name of his successor in office.' [Citations omitted.]" Harrison, supra, 226 N.C. at 41, 36 S.E.2d at 703.

Thus, when Benton made her motion in the cause on 15 February 1980, she was, by...