Ragan v. Hill , 110 N.C. App. 648 ( 1993 )

ARNOLD, Chief Judge.

In total, defendants raise three issues upon appeal. They are:

(1) Did the trial court err in denying defendants’ motions for summary judgment?

(2) Did the trial court err in denying defendant Hill’s motions for directed verdict and judgment notwithstanding the verdict?

(3) Did the trial court err in entering judgment in an amount greater than $25,000.00, the amount of the deceased’s liability insurance?

We will address each of these issues in order.

I. Summary Judgment

First defendants assign error to the trial court’s denial of his motion for summary judgment, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. The denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits. Harris v. Walden, 314 N.C. 284, 333 S.E.2d 254 (1985).

II. Directed Verdict and JNOV

Next, defendants contend that it was error for the trial court to deny Defendant Hill’s motions for directed verdict and JNOV, because N.C. Gen. Stat. § 28A-19-3(b) bars plaintiff’s claim as a matter of law.

At the time this cause of action arose, G.S. § 28A-19-3(b) read, in pertinent part, as follows:

(b) All claims against a decedent’s estate which arise at or after the death of the decedent . . . founded on . . . tort . . . are forever barred against the estate . . . unless presented to the personal representative or collector as follows:

* * * *

(2) . . . within six months after the date on which the claim arises.

(i) Nothing in this section shall bar:

(1) Any claim alleging the liability of the decedent . . .

* * * *

to the extent that the decedent or personal representative is protected by insurance coverage with respect to such claim ....

In Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988), this Court considered the application of N.C. Gen. Stat. § 29-19-3 in a case similar to the case at bar. In Brace, plaintiff was a passenger in an automobile that was owned and operated by defendants’ son. An accident occurred which killed defendants’ son instantly and severely injured plaintiff. At the time of the accident, defendants’ son had an automobile liability policy with $25,000 of coverage. Plaintiff carried underinsured motorist coverage of $100,000. More than six months, but less than two years, after the accident, plaintiff filed suit, alleging that defendants’ son’s negligence proximately caused plaintiff’s injuries. The trial court granted partial summary judgment for the defendant and the plaintiff appealed.

Upon appeal, the Brace court held that N.C. Gen. Stat. § 28A-19-3 applied and held that the six month statute of limitations applied on plaintiff’s cause of action. The Court went on to hold that, while G.S. § 28A-19-3 provided an exception to the six month statute of limitations on claims for which a decedent was insured, plaintiff could make no recovery under plaintiff’s underinsured motorist policy because plaintiff had no claim against the decedent in any amount over that amount for which the decedent himself was insured.

Finding that the case at bar is not distinguishable from Brace, we reverse the trial court’s denial of defendant’s motion for a directed verdict.

III. Judgment Greater Than $25,000.00

Following Brace, we must vacate that part of the judgment awarded to plaintiff which is greater than $25,000.00, the amount of liability insurance which the decedent himself carried. This case is remanded for entry of an appropriate judgment consistent with this opinion.

The trial court’s judgment is

Reversed and remanded.

Judges COZORT and LEWIS concur.