George v. Greyhound Lines Inc.

• Decision Date: 15 March 2011
• Docket Number: No. COA10–512.,COA10–512.
• Citation: 708 S.E.2d 201
• Parties: Steven GEORGE, Administrator of the Estate of Albert George[,] and Judy Canfield, Plaintiffs,v.GREYHOUND LINES, INC. and Antonio Ford, Defendants.
• Court: North Carolina Court of Appeals

708 S.E.2d 201

Steven GEORGE, Administrator of the Estate of Albert George[,] and Judy Canfield, Plaintiffs,

v.GREYHOUND LINES, INC. and Antonio Ford, Defendants.

No. COA10–512.

Court of Appeals of North Carolina.

March 15, 2011.

OPINION TEXT STARTS HERE

Appeal by Plaintiff Judy Canfield from order entered 26 January 2009 and judgment entered 25 January 2010 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 3 November 2010.

The Kessler Law Firm, P.L.L.C., Greenville, by Christopher C. Kessler and Phillip T. Evans, for Plaintiff–Appellant.

Young Moore and Henderson, P.A., Raleigh, by Brian O. Beverly, David M. Duke, and Michael S. Rainey, for Defendants–Appellees.

STEPHENS, Judge.

I. Procedural History

On 30 June 2003, Albert George and Judy Canfield (collectively, “Plaintiffs”) were injured when the recreational vehicle (“RV”) in which they were traveling was struck in the rear by a bus operated by Antonio Ford (“Ford”) and owned by Greyhound Lines, Inc. (“Greyhound”) (collectively, “Defendants”). On 29 June 2005, Plaintiffs filed this action against Defendants seeking compensatory and punitive damages.

Defendants moved “to bifurcate the trial of the issues of liability for punitive damages and the amount of punitive damages, if any, from the issue of the amount of compensatory damages.” On 30 July 2008, Defendants filed a motion for partial summary judgment on Plaintiffs' claim for punitive damages. Defendants' motion was heard on 26 January 2009 by the Honorable Milton F. Fitch, Jr. By order entered that day, the trial court granted Defendants' motion.

The case proceeded to trial on 26 January 2009. On 30 January 2009, the jury returned a verdict awarding Plaintiff Stephen George, as administrator of the estate of Albert George, $6,500 for personal injuries and $1,000 for property damage and awarding Judy Canfield (“Canfield”) $60,000 for personal injuries and $11,000 for property damage.

On 24 February 2009, Canfield filed notice of appeal from the order granting Defendants' motion for partial summary judgment. By order entered 29 September 2009, this Court dismissed Canfield's appeal as interlocutory.

On 25 January 2010, judgment was entered on the jury verdict rendered 30 January 2009.¹ From the order granting partial summary judgment to Defendants and the judgment entered on the jury verdict, Canfield appeals. For the reasons stated herein, we affirm the trial court's order and judgment.

II. Factual Background

Ford recounted his version of the events leading up to the accident in a handwritten statement he gave to a highway patrolman. In that statement, Ford wrote:

I was driving up I–95 south at approx[imately] 5:00 a.m. Myself and another vehicle about a half mile in front of me moved to the left lane to pass a vehicle heading right lane [sic]. As I approached the vehicle on the right, I noticed the vehicle in the left had either slowed or stopped. There were no brake lights to indicate stopping. It was still dark so I could not see that the vehicle had stopped in the left lane. To avoid hitting the car, I tried to move back into the right lane to get on the emergency lane to pass the vehicle in the right lane. The next thing I see is debris hitting the windshield and the back of a camper.

Ford recounted a similar sequence of events involving a third vehicle in a telephone call he made to Greyhound from the scene of the accident; in an internal form he filled out and submitted to Greyhound; in his answers to interrogatories; and in his deposition testimony.

The investigating officer's official report does not mention a third vehicle's involvement in the accident. Likewise, David Faas, a passenger on the bus at the time of the accident, testified at deposition that both the RV and the bus were in the right lane, and there was no other traffic around. Faas testified that as the bus came up behind the RV, a passenger in front of him started yelling, “ ‘Whoa, whoa.’ ” Faas then yelled, “ ‘Whoa, whoa.’ ” A third passenger behind Faas also yelled out, “ ‘Whoa[.]’ ” According to Faas, the bus crashed into the rear of the RV without hitting the brakes, changing lanes, or making any other evasive maneuver.

III. Discussion

A. Defendants' Motion to Dismiss

We first address Defendants' motion to dismiss Canfield's appeal because Canfield “abandoned her punitive damages claims by electing to proceed to trial on the issue[ ] of compensatory damages after dismissal of the punitive damages claim[.]” We disagree.

Pursuant to N.C. Gen.Stat. § 1D–30,

[u]pon the motion of a defendant, the issues of liability for compensatory damages and the amount of compensatory damages, if any, shall be tried separately from the issues of liability for punitive damages and the amount of punitive damages, if any. Evidence relating solely to punitive damages shall not be admissible until the trier of fact has determined that the defendant is liable for compensatory damages and has determined the amount of compensatory damages. The same trier of fact that tried the issues relating to compensatory damages shall try the issues relating to punitive damages.

N.C. Gen.Stat. § 1D–30 (2009).

On 26 January 2009, Defendants' motion for partial summary judgment on the issue of punitive damages was granted. The case proceeded to trial on the issue of compensatory damages on 26 January 2009. On 24 February 2009, Canfield appealed the trial court's grant of partial summary judgment. On 29 September 2009, this Court dismissed the appeal as interlocutory. Although the jury returned its verdict on 30 January 2009, judgment was not entered on the jury verdict until 25 January 2010. Canfield now appeals from both the partial summary judgment order and the judgment.

Defendants argue that Canfield's appeal should be dismissed because, pursuant to N.C. Gen.Stat. § 1D–30, Canfield's punitive damages claim could not be tried by a different jury from the jury that heard Canfield's compensatory damages claim. Defendant's argument misapprehends the law. Instead of dismissing Canfield's appeal in order to comply with section 1D–30, “we are required to remand for a new trial on all issues, including liability for compensatory damages” if Canfield's appeal is successful. Lindsey v. Boddie–Noell Enters., 147 N.C.App. 166, 177, 555 S.E.2d 369, 376 (2001), reversed on other grounds, 355 N.C. 487, 562 S.E.2d 420 (2002).

Accordingly, Defendants' motion to dismiss this appeal is denied.

B. Canfield's Appeal of Partial Summary Judgment

1. Legal Standard Applied

Canfield first argues that the trial court applied the incorrect legal standard in ruling on Defendants' motion for partial summary judgment. We disagree.

Summary judgment is proper when “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. Gen.Stat. § 1A–1, Rule 56(c) (2009). “ ‘When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) ( quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). The moving party has the burden “to show the lack of a triable issue of fact and to show that he is entitled to judgment as a matter of law.” Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982). “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.” Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). If the defendant meets this burden, then the plaintiff must “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.” Id. This Court reviews a trial court's entry of summary judgment de novo. Builders Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).

“Punitive damages may be awarded ... to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.” N.C. Gen.Stat. § 1D–1 (2009). In order for punitive damages to be awarded, a claimant must prove by clear and convincing evidence an aggravating factor of fraud, malice, or willful or wanton conduct. N.C. Gen.Stat. § 1D–15 (2009). “The clear and convincing evidence standard is greater than a preponderance of the evidence standard required in most civil cases, and requires evidence which should fully convince.” Schenk v. HNA Holdings, Inc., 170 N.C.App. 555, 560, 613 S.E.2d 503, 508 (internal citations and quotation marks omitted), disc. review denied, 360 N.C. 177, 626 S.E.2d 649 (2005).

At the summary judgment hearing, the trial court stated the following:

After hearing the argument on the issue of whether or not there should be a partial summary judgment, the Court is aware of what the standard is, that it must be by clear and convincing evidence justifying a finding of willful and wanton behavior on behalf of the driver, Antonio Ford, and Greyhound Line[s], Inc.

After hearing the arguments of Counsel and the forecast of the Plaintiff as to [her] evidence, the Court will grant partial summary judgment on this particular summary judgment in this particular matter on behalf of both Greyhound and Antonio Ford.

Canfield argues that these remarks indicate the trial court incorrectly placed the burden of proof upon her to put forth at the summary judgment hearing “ ‘clear and convincing evidence justifying a finding of willful and wanton behavior on behalf of the driver, Antonio Ford, and Greyhound Line[...