Reliance Ins. Co. v. Walker

• Decision Date: 20 April 1977
• Docket Number: No. 767SC784,767SC784
• Citation: 33 N.C.App. 15,234 S.E.2d 206
• Court: North Carolina Court of Appeals
• Parties: RELIANCE INSURANCE COMPANY, v. James G. WALKER et al.

Page 206

234 S.E.2d 206

33 N.C.App. 15

RELIANCE INSURANCE COMPANY, v. James G. WALKER et al.

No. 767SC784.

Court of Appeals of North Carolina.

April 20, 1977.

Battle, Winslow, Scott & Wiley, P.A., by J. B. Scott, Rocky Mount, for plaintiff appellant.

Knox & Kornegay, by Howard A. Knox, Jr., Rocky Mount, for defendant Walker, appellant.

Young, Moore, Henderson & Alvis, by R. Michael Strickland, Raleigh, for defendant Aetna Insurance Company, appellee.

MORRIS, Judge.

Appeal of defendant Kenneth Lewis

After this case was docketed in the Court of Appeals but prior to oral arguments, Aetna moved to dismiss the appeal as to defendant Lewis. The record reveals that Lewis, along with plaintiff Reliance and defendant Walker, took exception to the judgment of 7 June and gave notice of appeal in open court. However, Lewis has failed to file a brief or to carry forward his exception by any assignment of error. Rule 10(a) of the North Carolina Rules of Appellate Procedure provides that ". . . the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal . . . and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. . . ." Rule 14(d)(2) of the Rules of Appellate Procedure provides that "(i)f an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court's own initiative. . . ." For Lewis' failure to comply Appeal of defendant James G. Walker

with the Rules of Appellate Procedure, Aetna's motion is granted, and Lewis' appeal is dismissed.

Defendant Walker has excepted to and assigned as error those portions of Judge Webb's judgment which hold that Aetna's homeowner's policy does not provide coverage for Walker's injuries. Aetna has moved to dismiss Walker's appeal, contending that he is not a real party in interest in the litigation and therefore may not appeal from the judgment. We agree.

G.S. 1A-1, Rule 17(a) of the North Carolina Rules of Civil Procedure provides that "(e)very claim shall be prosecuted in the name of the real party in interest . . ." Although Rule 17 by its terms applies only to parties plaintiff, the rule is applicable to parties defendant as well. 3A Moore's Federal Practice, § 17.07, pp. 226-27. See also International Brotherhood of Teamsters v. Keystone Freight Lines, Inc., 123 F.2d 326 (10th Cir. 1941); Leppard v. Jordan's Truck Line, 116 F.Supp. 130 (W.D.N.C.1953). A real party in interest is ". . . a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation." Parnell v. Insurance Co., 263 N.C. 445, 448-49, 139 S.E.2d 723, 726 (1965). (Emphasis supplied.) The real party in interest is the party who by substantive law has the legal right to enforce the claim in question. White Hall Building Corp. v. Profexray Division of Litton, Industries, Inc., 387 F.Supp. 1202 (E.D.Penn.1974).

Plaintiff, in its prayer for relief, asked the court to adjudge "(w)hether Kenneth Lewis or James G. Walker are (sic) entitled to any coverage or protection" under either the automobile liability or homeowner's policy. The clear purpose of the action is to determine which insurance company, if any, would be liable to indemnify Lewis and not to determine any possible liability to Walker. Since Walker has yet to establish any liability of Lewis for the shooting, this declaratory judgment action involves only Lewis, his automobile liability carrier, and his homeowner's liability carrier. At this point, Walker has no interest in the subject matter of the action nor does he have any substantive legal rights to enforce the court's determination of liability of either carrier. See Merchants Mutual Casualty Co. v. Leone,298 Mass. 96, 9 N.E.2d 552 (1937). Accordingly, he is not a real party in interest to this suit, and Aetna's motion to dismiss Walker's appeal is granted.

Appeal of plaintiff Reliance Insurance Company

After receiving the evidence, Judge Webb incorporated into his judgment the following:

"FINDINGS OF FACT:

(1) Kenneth Lewis was on October 28, 1974, the owner of a 1963 Dodge pickup truck.

(2) On that date there was in effect a policy of automobile liability insurance issued by the plaintiff, Reliance Insurance Company, insuring Kenneth Lewis against those liabilities described in the policy; and said automobile liability insurance policy provided in pertinent part as follows:

PART I LIABILITY

BODILY INJURY LIABILITY COVERAGE; PROPERTY DAMAGE LIABILITY COVERAGE to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by any person;

arising out of the ownership, maintenance or use of the owned automobile. . . .

DEFINITIONS. Under Part 1:

'USE' of an automobile includes the loading and unloading thereof.

(3) On October 28, 1974, there was in effect a policy of insurance, commonly referred to as a 'homeowners policy,' issued by the defendant Aetna Insurance Company insuring Kenneth Lewis against those liabilities described in and not excluded by the said policy; and said policy provided in pertinent part as follows:

This policy does not apply:

1. Under coverage E personal liability and coverage F medical payments to others:

a. To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

(2) Any motor vehicle. . . .

(4) The pickup truck owned by Kenneth Lewis was equipped with a gun rack permanently mounted inside the rear window of the truck cab for the purpose of transporting firearms.

(5) Early in the morning of October 28, 1974, Kenneth Lewis had placed his rifle in the truck gun rack for the purpose of taking it hunting. After hunting several hours in the morning he replaced the rifle in the gun rack and drove to his home to pick up some trash to take to a nearby depository. James Walker assisted Kenneth Lewis in loading the trash onto the pickup truck. While the trash was being loaded, Lewis' rifle remained in the gun rack because Lewis and Walker intended to go hunting again after the trash was dumped. Lewis and Walker had hunted together in the past and on such occasions both had transported their rifles in the truck gun rack.

(6) After the trash was loaded onto the pickup truck, James Walker entered the passenger side of the cab and Kenneth Lewis placed his three-year-old son in the driver's side.

(7) James Walker, desiring to ride next to the window, then stepped out of the truck briefly to allow another passenger to enter. Kenneth Lewis then sat down in the driver's seat with his keys in his hand and was in the process of inserting them into the ignition switch when the rifle mounted in the gun rack discharged and injured Walker who was then standing beside the cab and holding the door open for the other passenger to enter."

Although plaintiff excepted to certain findings of fact and entered assignments of error thereon, he failed to argue or cite any authority for these assignments in his brief. These assignments of error are therefore deemed abandoned. North Carolina...