Malone v. Barnette

• Decision Date: 02 June 2015
• Docket Number: No. COA14–822.,COA14–822.
• Citation: 772 S.E.2d 256,241 N.C.App. 274
• Parties: Patricia Mitchell MALONE, Plaintiff, v. Calvin Eugene BARNETTE, Parker Trucking Services, Inc., Advantage Truck Leasing, LLC, Young's Truck Center, Inc., Volvo/GMC Truck Center of the Carolinas, and Paxton Van Lines of North Carolina, Inc., Defendants, Young's Truck Center, Inc., Cross–Claimant, v. Paxton Van Lines of North Carolina, Inc., Cross–Defendant, Calvin Eugene Barnette, Cross–Claimant, v. Advantage Truck Leasing, LLC and Young's Truck Center, Inc., Cross–Defendants, v. Paxton Van Lines Of North Carolina, Inc., Cross–Defendant.
• Court: North Carolina Court of Appeals

241 N.C.App. 274

772 S.E.2d 256

Patricia Mitchell MALONE, Plaintiff,

v.Calvin Eugene BARNETTE, Parker Trucking Services, Inc., Advantage Truck Leasing, LLC, Young's Truck Center, Inc., Volvo/GMC Truck Center of the Carolinas, and Paxton Van Lines of North Carolina, Inc., Defendants,Young's Truck Center, Inc., Cross–Claimant,

v.Paxton Van Lines of North Carolina, Inc., Cross–Defendant, Calvin Eugene Barnette, Cross–Claimant,

v.Advantage Truck Leasing, LLC and Young's Truck Center, Inc., Cross–Defendants,

v.Paxton Van Lines Of North Carolina, Inc., Cross–Defendant.

No. COA14–822.

Court of Appeals of North Carolina.

June 2, 2015.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Ellen P. Wortman, Wilmington, for cross-claimant-appellee Young's Truck Center, Inc.

Teague Campbell Dennis & Gorham, L.L.P., Raleigh, by Leslie P. Lasher, for cross-defendant-appellant Paxton Van Lines of North Carolina, Inc.

DAVIS, Judge.

Paxton Van Lines of North Carolina, Inc. ("Paxton") appeals from the trial court's order granting partial summary judgment in favor of Young's Truck Center d/b/a Advantage Truck Leasing, LLC ("Young's") on Young's cross-claims against Paxton for contractual indemnification. On appeal, Paxton contends that the entry of partial summary judgment in favor of Young's was improper because the claims for which Young's seeks indemnification are not covered by the indemnity provision contained in the rental agreement between them. After careful review, we affirm the trial court's order.

Factual Background

On 1 August 2013, Patricia Mitchell Malone ("Malone") filed a complaint in New Hanover County Superior Court against Calvin Eugene Barnette ("Barnette"), Parker Trucking Services, Inc., Young's, Volvo/GMC Truck Center of the Carolinas, and Paxton (collectively "Defendants"). The complaint alleged that on 1 August 2010, Malone was driving east on Holly Tree Road in Wilmington, North Carolina when a 2004 GMC truck ("the Truck") driven by Barnette, an employee of Paxton, struck her vehicle at the intersection of Holly Tree Road and South College Road. In her complaint, Plaintiff further asserted that the Truck had been leased from Young's by Paxton pursuant to a rental agreement ("the Rental Agreement") executed 29 July 2010 and that Defendants had been negligent in failing to inspect and maintain the braking system on the Truck, leading to Barnette's collision with Malone's vehicle and her resulting injuries.

On 21 October 2013, Barnette filed a cross-claim against Young's alleging that it had "breached its general and statutory duty of care by leasing a truck with defective brakes to Paxton ... which [Young's] knew or should have known would cause injury to persons either driving the truck or traveling on roadways." Barnette's cross-claim alleged that Young's negligence proximately caused the physical injuries he suffered in the collision and sought compensatory and punitive damages. Barnette filed an amended cross-claim against Young's on 10 January 2014, which eliminated his prior allegations of gross negligence and his request for punitive damages.

In response to both Malone's and Barnette's negligence claims, Young's filed cross-claims against Paxton on 1 October 2013 and 15 January 2014, respectively. In these cross-claims, Young's alleged that pursuant to the Rental Agreement, Paxton was contractually required to indemnify Young's for any monetary damages that Young's may be obligated to pay as a result of a settlement or judgment relating to the 1 August 2010 accident as well as for any attorneys' fees and costs Young's incurs in defending such claims.

Young's filed a motion for partial summary judgment as to its cross-claims for contractual indemnification on 16 January 2014. The motion came on for hearing on 17 February 2014 before the Honorable Phyllis M. Gorham, and on 28 March 2014, Judge Gorham entered an order granting partial summary judgment in Young's favor, stating in pertinent part as follows:

After reviewing the pleadings and other documents of record, and after hearing arguments of counsel, the Court finds that there are no genuine issues of material fact and Defendant Young's ... is entitled to judgment in its favor as a matter of law. After reviewing the pleadings of record, and after hearing arguments of counsel, the court further finds that Paxton is not entitled to judgment on the pleadings as to [Young's].

IT IS THEREFORE, ordered that Young's ... MOTION FOR PARTIAL SUMMARY JUDGMENT is GRANTED and Young's ... is entitled to contractual indemnification for monetary damages payable as a result of settlement or judgment against Young's ... and for defense costs and attorney fees incurred by Young's ... as a result of or in defense of the actions asserted by Patricia Mitchell Malone, Calvin Eugene Barnett [sic] and/or any other party in this matter.

Paxton filed a notice of appeal to this Court.¹

Analysis

I. Appellate Jurisdiction

We first note that the trial court's order granting partial summary judgment in favor of Young's is interlocutory as it does not dispose of all the claims asserted by the parties. See Turner v. Norfolk S. Corp., 137 N.C.App. 138, 141, 526 S.E.2d 666, 669 (2000) ("An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." (citation and quotation marks omitted)). Generally, interlocutory orders are not immediately appealable. N.C. Dep't of Transp. v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995). However, when the trial court's order constitutes a final determination as to some, but not all, of the claims asserted and the trial court certifies the order for appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, an immediate appeal will lie. Id. at 734, 460 S.E.2d at 334.

Here, in its 28 March 2014 order, the trial court noted that its order constituted a final judgment as to Young's cross-claims for indemnification and certified the order for immediate appeal pursuant to Rule 54(b). Therefore, we possess jurisdiction over Paxton's appeal. See Feltman v. City of Wilson, ––– N.C.App. ––––, ––––, 767 S.E.2d 615, 619 (2014) (explaining that appellate jurisdiction existed where trial court resolved two of four claims asserted by plaintiff and certified case pursuant to Rule 54(b) ).

II. Entitlement of Young's to Contractual Indemnity

On appeal, this Court reviews an order granting summary judgment de novo . In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). The entry of summary judgment is proper "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). A trial court may enter summary judgment in a contract dispute if the provision at issue is not ambiguous and there are no issues of material fact. See Premier, Inc. v. Peterson, ––– N.C.App. ––––, ––––, 755 S.E.2d 56, 59 (2014) ("In a contract dispute between two parties, the trial court may interpret a plain and unambiguous contract as a matter of law if there are no genuine issues of material fact."); Metcalf v. Black Dog Realty, LLC, 200 N.C.App. 619, 633, 684 S.E.2d 709, 719 (2009) ("[W]hen the language of a contract is not ambiguous, no factual issue appears and only a question of law which is appropriate for summary judgment is presented to the court.").

Paxton and Young's entered into the Rental Agreement on 29 July 2010, and it took effect as of that date. The Truck is the only vehicle covered in the agreement. In this appeal, the parties disagree as to whether the indemnification provision contained within the Rental Agreement should be construed as obligating Paxton, the lessee of the Truck, to indemnify Young's, the lessor, in connection with the personal injury claims brought against Young's stemming from the 1 August 2010 accident. The indemnification provision states as follows:

10. [Paxton] agrees to release, indemnify and hold [Young's] harmless from and against any and all claims, demands, suits, causes of action or judgments for death or injury to persons or loss or damage to property arising out of or caused by the ownership, maintenance, leasing, repair, possession, use or operation of any Vehicle covered by this Agreement, including, but not limited to the following:

(a) Any claims or causes of action arising from requirements of Insurance and which [Young's] would not otherwise, pursuant to the terms hereof, be required to pay.

(b) Any and all losses, damages, costs and expenses incurred because of injury or damage sustained by any occupant of said Vehicle, including without limitation [Paxton], [Paxton's] employees, agents or representatives and loss or damage to cargo or property owned by or in the possession of [Paxton], [Paxton's] employees, agents or representatives or occupants.

(c) All loss, damage, cost and expense resulting from [Paxton's] violation of any term of this agreement or breach of [Paxton's] warranties as expressed herein.

(d) The value of all tires, tools and accessories damaged, lost or stolen from the Vehicle.

(e) All cost of retaking the Vehicle, including but not restricted to attorney's fees and court costs.

(f) Any fines or penalties including forfeiture or seizure resulting from the use of the Vehicle.

(g) All claims for damages which [Paxton] or any other party may sustain as a result of any actions taken by [Young's] under paragraphs 13 and 14 hereof.

(h) All costs of defense and expenses of every kind, including attorneys' fees incurred in connection with any suits or claims covered under this Paragraph 10.

Paxton essentially makes three arguments on appeal. First, Paxton argues that, as a general proposition, North Carolina law does not permit the contractual...