Wheeless v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 26 May 1971
• Docket Number: No. 718DC232,718DC232
• Court: North Carolina Court of Appeals
• Parties: Horace C. WHEELESS v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.

Page 144

181 S.E.2d 144

11 N.C.App. 348

Horace C. WHEELESS v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.

No. 718DC232.

Court of Appeals of North Carolina.

May 26, 1971.

Braswell, Strickland, Merritt & Rouse by Roland C. Braswell, Goldboro, for plaintiff appellee.

Smith, Anderson, Dorsett, Blount & Ragsdale by John L. Jernigan, Raleigh, for defendant appellant.

GRAHAM, Judge.

Rule 4, Rules of Practice in the Court of Appeals of North Carolina was amended 20 January 1971 and now provides:

'From the ruling on an interlocutory motion, unless provided for elsewhere. Any interested party may enter an exception to the ruling on the motion and present the question thus raised to this Court on the final appeal; provided, that when any interested party conceives that he will suffer substantial harm from the ruling on the motion, unless the ruling is reviewed by this Court prior to the trial of the cause on its merits, he may petition this Court for a writ of certiorari within thirty days from the date of the entry of the order ruling on the motion.'

The above rule, as amended, was not in effect at the time defendant appealed in this case. For this reason, and also because of the nature of the question involved, we have elected to treat defendant's appeal as a petition for certiorari, allow it, and pass on the merits of the question raised.

The sole question presented is: When did the statute of limitations begin runnings with respect to plaintiff's claim under the uninsured motorist provisions of the insurance policy issued by defendant? If, as defendant contends, the cause of action accrued at the time damages were sustained, the suit is barred by the three year statute of limitations provided for contract actions. G.S. § 1--52(1). Plaintiff contends that the cause of action did not accrue, and consequently the statute of limitations did not start running, until demand for payment under the policy was made and refused by defendant. The record does not show when this event occurred, but presumably plaintiff could show that it was within the three year period preceding the institution of this suit.

"Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability. * * * When the statute of limitations begins to run it continues until stopped by appropriate judicial process.' B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570; Peal v. Martin, 207 N.C. 106, 176 S.E. 282; City of Washington v. Bonner, 203 N.C. 250, 165 S.E. 683; 5 Strong's N.C. Index 2d, Limitation of Actions § 4.' Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 277 N.C. 216, 176 S.E.2d 751.

The uninsured motorist clause of the policy provides in pertinent part:

'To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile. * * *'

For the purpose of this endorsement, determination as to whether the insured or such legal representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree and the insured so demands, by arbitration; but if the insured elects not to arbitrate, the liability of the company shall be determined only in an action against the company and no prior judgment against any person or organization alleged to be legally responsible for such damages shall be conclusive on the issue of liability of...