Morin v. Sharp

• Decision Date: 19 June 2001
• Docket Number: No. COA00-343.,COA00-343.
• Citation: 549 S.E.2d 871,144 NC App. 369
• Court: North Carolina Court of Appeals
• Parties: Joseph Oliver MORIN, Plaintiff-Appellee, v. David Charles SHARP, U.S. Transport, Inc. and Legion Insurance Company, Defendants-Appellants.

549 S.E.2d 871

144 NC App. 369

Joseph Oliver MORIN, Plaintiff-Appellee, v. David Charles SHARP, U.S. Transport, Inc. and Legion Insurance Company, Defendants-Appellants.

No. COA00-343.

Court of Appeals of North Carolina.

June 19, 2001.

Anderson & Associates, P.C., by John J. Korzen, Kernersville; W. Newton Moore, Atlanta, GA; and Long, Parker, Warren & Jones, P.A., by Steve Warren, Asheville, for plaintiff-appellee.

Dennis, Corry & Porter, L.L.P., by Christopher D. Pixley, Atlanta, GA, for defendants-appellants.

WALKER, Judge.

On 6 July 1996, a motor vehicle accident occurred in Buncombe County, North Carolina involving Joseph Oliver Morin (plaintiff), David Charles Sharp (defendant Sharp) and U.S. Transport (defendant Transport). Plaintiff was riding a motorcycle on Interstate 40 when he was struck by a spare tire weighing approximately one hundred to one hundred and fifty pounds. The tire had rolled off a tractor-trailer owned by defendant Transport and driven by its employee, defendant Sharp. Upon being struck by the tire, plaintiff remained on his motorcycle which flipped in the air three times. Plaintiff then slid under the motorcycle and across the road for over one hundred feet, sustaining severe injuries to his teeth, back, shoulder, hip and legs, which required multiple surgeries and left him with permanent disabilities.

Plaintiff filed suit on 3 March 1998 alleging negligence and seeking damages from defendants Sharp and Transport. When defendants Sharp and Transport failed to answer or otherwise plead to the complaint, plaintiff obtained an entry of default.

Defendant Transport's liability insurance carrier, Legion Insurance Company (defendant Legion), received notice of the lawsuit on 15 February 1999, after entry of default. After defendant Legion retained attorney William Morris (Morris) to represent defendants Sharp and Transport, he moved to set aside the entry of default.

Thereafter, plaintiff and defendant Legion consented to the setting aside of the entry of default which was done by order on 14 April 1999. At that time, Morris advised plaintiff's counsel that he represented "both the insured and the insurance carrier." The case was peremptorily set for trial beginning on 11 October 1999.

On 6 May 1999, Morris filed an answer on behalf of defendants Sharp and Transport and denied liability. Plaintiff initiated discovery which was sent to Morris in August 1999; however, Morris responded that he was unable to locate defendants. Plaintiff then filed a motion asking that the trial court allow defendant Legion to intervene. The trial court ordered that "any insurance carrier which so desires to intervene and assert any interest it may have in connection with the matters ... alleged in [p]laintiff's [c]omplaint..." could intervene. Defendant Legion filed its own motion to intervene as an additional party defendant which was allowed.

At the conclusion of the trial on 20 October 1999, the jury returned a verdict in favor of plaintiff in the amount of $1,035,167.50. Defendant Legion filed a motion for a new trial, which was denied on 16 November 1999. Defendants Sharp and Legion (defendants) appealed. Defendant Transport is not a party to this appeal.

We first address plaintiff's motion to dismiss the appeal. Plaintiff asserts that this Court is without jurisdiction to hear defendants' appeal because their notice of appeal fails to designate the orders which address all issues from which defendants appeal. After careful consideration, we deny the motion.

In their first assignment of error, defendants contend the trial court committed reversible error by granting plaintiff's motion to allow intervention because the order prejudicially forced defendant Legion to intervene as a party defendant. One month before trial, Morris filed a motion to continue the case on the basis that he had been unable to locate defendants Sharp and Transport. In discovery responses filed previously, Morris had stated he was unable to locate defendants Sharp and Transport.

Plaintiff states that the motion to allow intervention by defendant Legion was filed because of his concern that an attorney-client relationship had not been formed between Morris and defendants Sharp and Transport and that any judgment against them would be improper because Morris had no authority to represent them.

At trial, defendant Legion filed its own motion to intervene, stating it was being forced to intervene in order to avoid a default judgment against its insured. Furthermore, the motion stated such intervention would prejudice defendant Legion, as issues of insurance coverage and the availability of insurance would be improperly raised during the trial.

Our Supreme Court in the recent decision of Dunkley v. Shoemate, 350 N.C. 573, 515 S.E.2d 442 (1999), held "that a law firm or attorney may not represent a client without the client's permission to do so[.]" Id. at 578, 515 S.E.2d at 445. Dunkley likewise involved an attorney employed by an insurance carrier who attempted to contact the insured without success and therefore was not authorized to appear on his behalf and defend the lawsuit. Id. at 575, 515 S.E.2d at 443. The Supreme Court affirmed this Court's ruling that no attorney-client relationship existed between defendant and the attorney seeking to represent him. Id. at 578, 515 S.E.2d at 445. However, the Court noted "Rule 24 of the North Carolina Rules of Civil Procedure provides a means by which an interested party, under certain circumstances, may intervene in a pending lawsuit... to protect its interests...." Id.

In the instant case, the trial court properly granted plaintiff and defendant Legion's motions to allow defendant Legion to intervene as a party defendant to protect its interests as articulated in Dunkley. After reviewing the record, we fail to see how defendant Legion was forced to intervene or was prejudiced by this intervention. This assignment of error is overruled.

In their second assignment of error, defendants contend the trial court committed reversible error by denying defendant Legion's motion to continue because such denial caused irreversible prejudice to defendants.

The standard of review for denial of a motion to continue is generally whether the trial court abused its discretion. Wachovia Bank & Tr. Co. v. Templeton Olds.-Cadillac-Pontiac, 109 N.C.App. 352, 356, 427 S.E.2d 629, 631 (1993). "The chief consideration to be weighed in passing upon the application is whether the grant or denial of a continuance will be in furtherance of substantial justice." Id. The moving party has the burden of proof of showing sufficient grounds to justify a continuance. Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). Defendants rely on Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965) and Shankle, 289 N.C. at 483, 223 S.E.2d at 386, where in each case our Supreme Court held the trial court's denial of a motion to continue was improper. In Smith, the trial court permitted the withdrawal of defendant's counsel one day before trial began. Smith, 264 N.C. at 211-12, 141 S.E.2d at 306. In Shankle, defense counsel withdrew from the case without prior notice to the defendants who had to proceed to trial without an attorney. Shankle, 289 N.C. at 486, 223 S.E.2d at 388. The Supreme Court ordered a new trial in each case. Defendants contend a new trial should likewise be ordered in this case because defendants Sharp and Transport were not represented by counsel and intervention by defendant Legion was mandated for an improper purpose, all of which "resulted in an extraordinary and excessive verdict." However, the facts in the instant case are distinguishable from the facts in Smith and Shankle. Smith, 264 N.C. 208,

141 S.E.2d 303; and Shankle, 289 N.C. 473,

223 S.E.2d 380. Defendants have the burden of proving sufficient grounds for a continuance. Id. We find nothing in the record to support an abuse of discretion by the trial court in deciding not to continue the case.

In their third assignment of error, defendants contend the trial court committed reversible error and abused its discretion by denying defendant Legion's motion for an independent medical examination of plaintiff for the following reasons: (1) plaintiff's medical condition was in controversy; (2) the motion was timely filed within the discovery period and seventeen...