Lawyers Mut. Liability Ins. Co. of North Carolina v. Nexsen Pruet Jacobs & Pollard

• Decision Date: 19 October 1993
• Docket Number: No. 9210SC991,9210SC991
• Citation: 112 N.C.App. 353,435 S.E.2d 571
• Court: North Carolina Court of Appeals
• Parties: LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Plaintiff, v. NEXSEN PRUET JACOBS & POLLARD, Moore & Van Allen and the Home Insurance Company, Defendants.

Page 571

435 S.E.2d 571

112 N.C.App. 353

LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Plaintiff, v. NEXSEN PRUET JACOBS & POLLARD, Moore & Van Allen and the Home Insurance Company, Defendants.

No. 9210SC991.

Court of Appeals of North Carolina.

Oct. 19, 1993.

Young, Moore, Henderson & Alvis, P.A. by Walter E. Brock, Jr., Raleigh, for plaintiff-appellant.

Smith, Helms, Mullis & Moore by Martin N. Erwin, Greensboro, for defendant-appellee, The Home Ins. Co.

Manning, Fulton & Skinner by Howard E. Manning, Jr., Raleigh, for defendant-appellee, Nexsen Pruet Jacobs & Pollard.

Yates, McLamb & Weyher by Joseph W. Yates, III, and Barbara B. Weyher, Raleigh, for defendant-appellee, Moore & Van Allen.

ARNOLD, Chief Judge.

In its first of two assignments of error, Lawyers Mutual contends the trial court abused its discretion in staying the North Carolina declaratory judgment action. The trial court granted the stay pursuant to N.C.Gen.Stat. § 1-75.12 (1983), which provides as follows:

(a) When Stay May Be Granted.--If, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State. A moving party under this subsection must stipulate his consent to suit in another jurisdiction found by the judge to provide a convenient, reasonable and fair place of trial.

Lawyers Mutual first argues this Court must reassess the standard by which orders under G.S. § 1-75.12 are reviewed. In Home Indemnity Co. v. Hoechst-Celanese Corp., 99 N.C.App. 322, 393 S.E.2d 118, appeal dismissed and disc. review denied, 327 N.C. 428, 396 S.E.2d 611 (1990), this Court refused to adopt a de novo standard of review, stating that "[e]ntry of an order under G.S. 1-75.12 is a matter within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Id. 99 N.C.App. at 325, 393 S.E.2d at 120. We decline to change that standard.

Lawyers Mutual also argues that, even under an abuse of discretion standard, the trial court committed error. In determining whether to grant a stay under G.S. § 1-75.12, the trial court may consider the following factors: (1) the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations. Motor Inn Management, Inc. v. Irvin-Fuller Dev. Co., Inc., 46 N.C.App. 707, 713, 266 S.E.2d 368, 371, appeal dismissed and disc. review denied, 301 N.C. 93, 273 S.E.2d 299 (1980).

We have reviewed the trial court's order. The trial court found that the underlying actions seeking damages from Nexsen Pruet and Moore & Van Allen arise solely out of Nexsen Pruet's representation of Charping and the Charping companies in South Carolina. North Carolina has no connection to these claims. The trial court also found that Lawyers Mutual insured South Carolina lawyers against professional liability, thereby insuring South Carolina residents. Moreover, it found that the convenience of the witnesses and the availability of compulsory process to obtain witnesses clearly weighed in favor of staying the North Carolina action. The trial court also found that the facts and circumstances surrounding Lawyers Mutual's defense to coverage occurred in South Carolina and that South Carolina law applied to the coverage issues. Finally, the trial court found the South Carolina court currently handling the malpractice claims to be a more convenient forum for handling the declaratory judgment as well. The trial court then concluded that it would work a substantial injustice for the action to be tried in a North Carolina court and granted Nexsen Pruet's motion to stay. We hold that the facts of this case support this conclusion and find no abuse of ...