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4 This Week... A show business insider told us that the Los Angeles Clippers are up for sale and will be purchased by Oprah Winfrey. The new team physician will be Dr. Phil. The Clippers will be the only team in the league with a book club.

5 This Week... According to a new study, doctors say Viagra is being overprescribed...and here I didn t even realize Hugh Hefner s girlfriends were doctors.

6 This Week... The U.S. Commerce Department found no evidence to support allegations that the monthly unemployment rate was manipulated before the 2012 presidential election. Said the Commerce Department, We arrived at this conclusion after realizing we didn t want to contribute to that statistic personally.

7 This Week... According to media reports, notorious bachelor George Clooney is engaged to his lawyer girlfriend Amal Alamuddin. Said Clooney, I just starred in Gravity where I was alone in the darkness of space with just one woman and eventually floated off into a void of nothingness, so I think I got a pretty good idea what marriage is gonna be like.

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10 Lunsford v. Mills et al. 747 S.E.2d 390 (2013)

11 Lunsford v. Mills et al. 747 S.E.2d 390 (2013) Defendant Mills loses control of his tractor-trailer and flips it on Interstate 40. Plaintiff Lunsford, a local volunteer firefighter, was the first to arrive on scene. Plaintiff Lunsford picks up Mills and attempts to carry him across the highway to safety. Driver Buchanan fails to notice the stopped traffic and while swerving to avoid a rear-end collision, hits Plaintiff Lunsford.

12 Lunsford v. Mills et al. 747 S.E.2d 390 (2013) Policies at play: Defendant Mills / Employer Crowder: $1M liability, US Fire Defendant-driver Buchanan: $50K liability, Allstate Plaintiff business auto: $300K UIM Plaintiff personal auto: $100K UIM Both of Plaintiff s policies issued by North Carolina Farm Bureau

13 Lunsford v. Mills et al. 747 S.E.2d 390 (2013) Allstate tenders limits of $50K and demands that Plaintiff s UIM carrier, Farm Bureau, tender payment for the UIM claim. Farm Bureau elects not to advance the tender. More than 6 months later, Farm Bureau has still not provided UIM coverage to Plaintiff, and Plaintiff settles claims against Mills and Crowder for $850,000, which was paid by their liability carrier US Fire.

14 Lunsford v. Mills et al. 747 S.E.2d 390 (2013) Farm Bureau and Plaintiff each file a Motion for Summary Judgment. Farm Bureau argues Plaintiff is not entitled to UIM coverage because the aggregate amount of settlement received ($900,000) exceeds Plaintiff s aggregate UIM coverage ($400,000). Plaintiff contends he is entitled to the aggregate of the $400K UIM limits less the $50K liability tender, for a total of $350K.

15 Lunsford v. Mills et al. 747 S.E.2d 390 (2013) The trial court grants Plaintiff s motion; denies Farm Bureau s motion; and, enters judgment against Farm Bureau for $350K plus costs and pre- and post-judgment interest. STAY TUNED THIS CASE IS CURRENTLY BEFORE THE SUPREME COURT.

16 Lunsford v. Mills et al. 747 S.E.2d 390 (2013)

17 Nationwide Mutual Insurance Co. v. Integon National Insurance Co. (N.C. Ct. App. 2014)

18 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Three vehicle accident on August 23, 2011 Decedent ( Clark ) was riding a motorcycle, when tortfeasor ( Ikerd ) ran a red light and collided with Clark s motorcycle. A separate driver ( Pitts ) then ran over Clark. Ikerd s liability policy paid the policy limit of $50, to Clark s Estate. Clark was eligible for UIM coverage under three policies.

19 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Integon Policy Issued to Clark as named insured and covering the motorcycle Clark was driving. $100, in per person coverage State National Policy Issued to Clark as named insured $50, in per person coverage Nationwide Policy Issued to Clark s parents as named insureds. Clark was a resident relative of their household at the time of the incident $50, in per person coverage

20 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Trial court entered summary judgment that the Integon policy was primary and the Nationwide policy was excess, such that Integon receives the full credit for the $50K in liability limits. On appeal, Nationwide argues the court should follow the holding in Bost, and declare a pro rata distribution of the credit for the $50, in liability limits previously paid.

21 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Nationwide argues Bost requires pro rata distribution because (i) the three policies other insurance clauses are mutually repugnant and (ii) Clark was a Class I insured under the three policies. Integon argues that the language used in the policies controls and class designation is not relevant when multiple excess clauses may be read together harmoniously. The Court creates a three step analysis:

22 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Step 1 Are the other insurance clauses mutually repugnant? Must look to the language of the policy to determine if excess clauses contain identical terms; or, If not identical terms, must have same meaning. If the clauses are not mutually repugnant, then the inquiry ends and the court may apply the policy language to determine distribution.

23 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Step 2 Is the claimant in the same Class under each policy? Class I = named insured[s], and while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise. Class II = those claimants who do not fall within Class I, but who, nonetheless, qualify as insureds for the purpose of UIM coverage. If the claimants fall within the same Class for each policy at issue the competing UIM carriers share liability and credits pro rata.

24 Nationwide Mut. Ins. Co. v. Integon Nat l Ins. Co. (N.C. Ct. App. 2014) Step 3 may a primary/excess distinction be drawn despite identical policy language? If the claimant does not fall within the same Class under the multiple policies, then the carrier must revisit the specific policy language to determine priority. Identical clauses may allow a finding of non-repugnancy after applying the policies definitions, specifically relating to ownership identified in the policy. If the clauses can be read harmoniously, then applied as written.

25 And here is a clip of the attorneys and judges trying to figure out which policy went first :29 to 2:06

26 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014)

27 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014) On September 22, 2010, plaintiff Tawanda L. Metts filed a complaint against defendant Pamela Parkinson for negligence arising from a car accident between them. In her complaint plaintiff sought an award in excess of $10, plus court costs and attorneys' fees. On May 31, 2012, a jury awarded plaintiff $6,

28 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014) On June 7, 2012, plaintiff filed a motion for attorneys' fees pursuant to N.C. Gen. Stat and 7A-305. On July 16, the trial court awarded plaintiff $2, in attorneys' fees and $1, in costs. Plaintiff appealed to the COA arguing that the amount of attorneys' fees awarded was not supported by proper findings of fact. The COA agreed and remanded to the trial court for findings of fact. On remand, the trial court made findings of fact but sustained its prior award of $2, in attorneys' fees to plaintiff. Plaintiff appealed.

29 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014) On remand, the trial court made additional findings of fact: Plaintiff incurred costs of $1,907.77; Plaintiff's counsel submitted affidavits indicating that plaintiff's primary attorney spent hours of time, at $ per hour, while a second attorney spent 29.3 hours, at $ per hour, on the case; Plaintiff's primary attorney is an associate attorney who became licensed to practice law in 2010; This was plaintiff's attorney's second jury trial; Plaintiff's second attorney took no active role in the trial;

30 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014) Findings of Fact, continued: The case concerned a car accident and had no significant evidentiary issues; The hours spent by plaintiff's attorneys "are disproportionately higher than the hours reasonably and normally spent by plaintiff's counsel in this type of civil case"; and That "[i]t is customary for an attorney to receive 1/3 (one third) of the settlement or Judgment amount as a fee for services rendered."

31 Metts v. Parkinson 2014 N.C. App. LEXIS 334 (April 1, 2014) The trial court concluded that plaintiff's primary attorney "spent more than a reasonable amount of time on the case, and, in its discretion, finds that an attorney's fee of $2, is appropriate in this case. The Court of Appeals held that the trial court did not abuse its discretion in awarding $2, in attorneys' fees to plaintiff.

32 North Carolina Senate Bill 452 On June 19, 2013, Governor McCrory signed into law Session Law Act is effective on August 1, 2013 Applies to all actions filed on or after that date

33 Changes to Jurisdictional Limits Old limits: Small Claims: $5,000 or under District Court: $5,001-$10,000 Superior Court: $10,001-above New Limits: Small Claims: $10,000 or under District Court: $10,001-$25,000 Superior Court: $25,001-above

34 Changes to Jurisdictional Limits Grace Period From August 1, 2013 to June 30, 2015, both District and Superior Courts have jurisdiction for amounts in controversy between $10,000 and $25,000. This means that claims seeking $10,000-$25,000 can be filed in either court during this time period.

35 Changes to Attorneys Fees Under N.C. Gen. Stat Updated (again) to reflect new jurisdictional amounts Recap: Before Tort Reform of 2011: if recovery was $10K or less, judge could tax attorneys fees and costs. Tort Reform of 2011: if recovery is $20K or less, judge can tax attorneys fees and costs but attorneys fees are capped at $10K.

36 Non-Binding Arbitration Amendments to N.C. Gen. Stat. 7A-37.1 Old Law: in certain civil cases where plaintiff sought less than $15,000, the court could order the parties to non-binding arbitration. New Law: in all civil actions seeking less than $25,000, nonbinding arbitration shall be ordered, unless all parties waive it.

37 Non-Binding Arbitration Attorneys Fees in Small Claims Court In small claims actions only: If a party appeals the arbitration award, and the award is affirmed, the court can assess court costs and attorneys fees against the appealing party. Includes court costs and attorneys fees for the original action and two appeals (one appeal from small claims court for arbitration, and one appeal for trial from arbitration award).

38 And here is a clip from a recent non-binding arbitration... Please insert from 0:11 to 0:56

39 CASE LAW UPDATE CASE OFF Davis v. Urquiza COA - Service of process on a claims adjuster was insufficient to serve plaintiff s uninsured motorist carrier. Oraefo v. Pounds - COA Court affirmed trial court s denial of directed verdict where from the parties testimony the jury could have reasonably found that the plaintiff was contributorily negligent in failing to reduce her speed to avoid a collision when she saw defendant was attempting to merge into her lane. Kenney v. The Independent Order of Foresters - 4 th Circuit - A widow may sue for bad faith where her deceased husband s life insurance carrier failed to pay claim until days before an administrative hearing.

40 CASE LAW UPDATE CASE OFF Jernigan v. Tart COA Where plaintiff presented sufficient evidence of each element of last clear chance doctrine, the trial court erred in refusing to instruct the jury on the doctrine. Meyers v. Lamer 4 th Circuit This is a case involving injury to a maintenance worker who was replacing a traffic signal in a bucket truck over an open lane of travel with a co-worker as lookout below. The court vacated the district court's conclusion that plaintiff assumed the risk because he was performing work in the road. The court also vacated the district court's ruling that plaintiff was contributorily negligent where plaintiff was entitled to rely on his coworker to provide fair warning to him. Sawyer v. Ruiz COA - Since plaintiff failed to serve defendant before she voluntarily dismissed her complaint, she was not entitled to the one year tolling of statue of limitations under Rule 41(a)(1).

41 SLIP & FALL [insert video of Joe & Joe]

42 Skipper v. Wayne Oil Company, Inc. No. COA13-657, N.C. App.; 2013 N.C. App. LEXIS 1274 (unpublished) RALEIGH, N.C. On December 3, 2013, the North Carolina Court of Appeals affirmed summary judgment for the defendant in a slip-and-fall injury action. The Court agreed that the plaintiff failed to show that a dangerous condition existed in a convenience store's parking lot and that plaintiff could not forecast sufficient evidence to relate the fall to the alleged negligence of the defendant.

43 Currin v. Rex Healthcare Inc. No. COA13-515; N.C. App. (unpublished) RALEIGH, N.C. In February 2014, the Court of Appeals upheld summary judgment in favor of the defendant where the plaintiff tripped and fell over an object in defendant s parking lot used to prevent cars from parking along a curb. The Court found that the object was visible and apparent and there was contrast between the plastic base and the asphalt, and the object was visible at night. As such, the court affirmed summary judgment in favor of the defendant.

44 This Week... Every undergraduate student at MIT next fall will be offered $100 in bitcoins in an experiment that will turn the university into one of the first places in the world with widespread access to digital currency. So now MIT students money, just like their girlfriends, only exist online.

45 This Week... Late Tuesday night, Florida State quarterback and reigning Heisman Trophy winner Jameis Winston was issued a citation for shoplifting crab legs from a grocery store. This incident is not the first time, nor will it be the last, that an FSU student made a questionable decision and ended up with crabs.

46 CASE LAW UPDATE CASE LAW UPDATE APRIL 2014 UPDATE

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48 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014

49 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 Holmes owned office buildings at 5415 Friendly Avenue and 5411 Friendly Avenue in Greensboro, North Carolina. In November 2011, eight heating and air conditioning units were stolen from outside 5415 Friendly Ave. Holmes made a claim to defendant North Carolina Farm Bureau Mutual Insurance Company under his office-lessor policy.

50 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 Farm Bureau denied coverage for the claim based on the vacancy provision of the policy. Under the policy a building is vacant when 70% or more of its total square footage: (i) is not rented; or (ii) is not used to conduct customary operations. The policy also stated that [w]hen this policy is issued to the owner of a building, building means the entire building.

51 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 The policy further provided the following: b. Vacancy Provisions If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs: (1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss: (e) Theft;

52 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 The Court analyzed whether the units in 5415 Friendly Avenue were rented or unoccupied in the time leading up to the alleged loss. Unit A was occupied and constituted 16% of the total square footage of the building. Unit C contained a 144 square foot storage unit used by one of the tenants to store documents, but the remainder of the unit was not rented. The tenants had a key to the entire unit, but only used the 144 square foot storage unit for the storage of their documents.

53 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 Holmes argued that because the tenants of 5411 Friendly Avenue had access to the entirety of Unit C, the whole unit should be considered occupied, even though the evidence showed the tenants used only the 144 square foot storage unit. Farm Bureau s position was that only the 144 square feet in use by the tenants should be considered occupied or in use.

54 Holmes v. North Carolina Farm Bureau 2014 N.C. App. LEXIS 357 April 15, 2014 The North Carolina Court of Appeals found that Holmes position was contrary to the plain language of the contract and that the policy language directs the court to consider only the portion of the total square footage that was actually used, not what amount could have been used. Without counting the entirety of Unit C, the building was less than 30% occupied or rented, and the building was considered vacant under the policy. The court granted summary judgment in favor of Farm Bureau.

55 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014)

56 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) In April 2005, Bruton purchased Lots 7 and 59 in Randolph Hills Subdivision, Phase II. Prior to Bruton's ownership of the property, DMP, engaged in the business of surveying, engineering, and land planning, prepared the plat. Davis, a DMP employee and registered surveyor, certified the plat that was recorded on July 8, The final recorded plat showed at right-of-way easement to Duke pursuant to an agreement dated May 20, 1970.

57 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) According to Davis' plat, Duke's easement extended 150 feet over and across Lots 7 and 59 of the subdivision. Relying on the information in the recorded final subdivision plat depicting a 150-foot Duke easement, Bruton planned the location of single-family homes and a septic tank repair and drain field on the property. Bruton began construction in In October 2006, a Duke representative visited the property to determine whether the construction was within Duke's easement. Duke then sent Bruton a letter dated stating Duke's objection to all encroachments that existed within Duke's deeded and recorded 200-foot easement for the property and requested the removal of the encroachments on Duke's easement.

58 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) At the time Bruton received Duke's letter, the house on Lot 59 was almost complete and the house on Lot 7 was approximately 60% complete. Bruton also sent DMP several letters regarding the encroachment due to the inaccurate survey. In July 2011, since the parties were unsuccessful in negotiations regarding the disputed easement, Duke filed a complaint against Bruton alleging that a portion of Bruton's house that was under construction encroached upon Duke's easement, and sought, inter alia, an order to remove the encroachment from the 200-foot wide electrical transmission line easement.

59 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) Duke also sought a permanent injunction against Bruton, prohibiting it from further interfering with Duke's ability to protect the safety of the public, provide reliable electrical service to the public, and properly and safely maintain its transmission lines. In December 2011, Bruton filed an answer and a third-party complaint against DMP and Davis. In its answer, Bruton denied liability and acknowledged that any alleged liability was the result of Bruton's reasonable and justifiable reliance upon defendants' actions, representations, and warranties that the Duke easement was 150 feet wide.

60 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) Third-Party Defendant s filed an Answer and Motion to Dismiss alleging that the Third-Party Plaintiff s claim was time bar, among other things. The Motion to Dismiss was converted to a Motion for Summary Judgment and the Court ruled that the action was time barred, finding summary judgment in favor of the Third-Party Defendants. Third-Party Plaintiff appealed.

61 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) Since Davis is a registered land surveyor, DMP is a company specifically engaged in surveying and platting, and the appeal involved a Complaint based upon negligent surveying that caused Bruton to suffer property damage and economic loss due to defendants' negligent survey, two differing statues applied. However, both statutes provide differing limitation periods for actions against registered land surveyors, one provided a three-year statute and the other a ten-year statute.

62 Duke Energy Carolinas v. Bruton Cable Service 2014 N.C. App. LEXIS 363 (April 15, 2014) Pursuant to Fowler v. Valencourt, "[w]here one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability." [w]here there is doubt as to which of two possible statutes of limitation applies, the rule is that the longer statute is to be selected." Therefore, the ten-year limitation period applies,and the trial court erred by granting summary judgment for Third-Party Defendants. Bruton's third-party complaint for negligent misrepresentation against defendants was timely filed and was not time-barred.

63 Insert 4:15 to 4:37

64 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013) REALLY? WITH JESSICA AND LORI

65 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013) In 2004, Plaintiffs hired Hartley Construction to build a custom home in Chapel Hill, NC. GrailCoat WorldWide provided waterproof exterior for the home that its website expressly warranted for 20 years. Subsequent to the completion of the home, water began leaking into the house s interior.

66 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013) In 2011, Plaintiffs filed suit against Hartley and GrailCoat, alleging that faulty design and installation instructions caused the walls of the house to rot. Plaintiffs also alleged that GrailCoat s product was inherently defective and in violation of North Carolina Building Codes and applicable industry standards.

67 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013) The trial court granted Defendants Motion for Summary Judgment based on North Carolina s 6-year statute of repose, N.C. Gen. Stat Per N.C. Gen. Stat. 1-50, any action to recover damages for defective or unsafe improvements to real property brought more than 6 years after either the specific last act or omission by defendant that caused the damage, or the substantial completion of the improvement, is barred.

68 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013) On appeal, Plaintiffs argued that even if their suit was brought outside of the 6-year statute of repose, their complaint was valid because of GrailCoat s express 20-year warranty. The Court of Appeals affirmed the trial court s ruling, noting that Defendant s last act or omission was more than six years before the action was brought. Despite the 20-year warranty, a plaintiff whose action is not filed within the time set forth in the statute of repose has no cause of action for damages.

69 Christie v. Hartley Construction, Inc. 745 S.E.2d 60 (2013)

70 GOOD NIGHT AND HAVE A PLEASANT TOMORROW.