Opinion
No. COA11–1095.
2012-07-3
NEW HANOVER REGIONAL MEDICAL CENTER, Plaintiff, v. CROSS COUNTRY TRAVCORPS, INC. d/b/a Cross Country Staffing, and Christina Lynn White, Defendants.
Ward and Smith, P.A., by A. Charles Ellis and Ryal W. Tayloe, for plaintiff-appellee. Yates, McLamb & Weyher, LLP, by Shirley M. Pruitt and William T. Kesler, Jr., for defendant-appellant Cross Country Travcorps, Inc.
Appeal by defendants from order entered 4 May 2011 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 21 February 2012. Ward and Smith, P.A., by A. Charles Ellis and Ryal W. Tayloe, for plaintiff-appellee. Yates, McLamb & Weyher, LLP, by Shirley M. Pruitt and William T. Kesler, Jr., for defendant-appellant Cross Country Travcorps, Inc.
Teague Campbell Dennis & Gorham, L.L.P., by Melissa R. Cleary and Kathryn Deiter–Maradei, for defendant-appellant Christina Lynn White.
GEER, Judge.
Defendants Cross Country Travcorps, Inc. and Christina Lynn White appeal the trial court's order granting partial summary judgment on one issue to plaintiff New Hanover Regional Medical Center (“NHRMC”) and granting NHRMC's motion to compel arbitration as to the remaining issues. Because our courts have held that an interlocutory order compelling arbitration is not immediately appealable and because defendants have failed to show that a substantial right will be affected if they are required to wait until after the arbitration to appeal the partial summary judgment order, we dismiss the appeal.
Facts
NHRMC settled a malpractice action arising out of the death of an infant in its hospital allegedly resulting from the negligence of Ms. White, a nurse provided to the hospital by defendant Cross Country pursuant to a staffing contract. NHRMC notified Cross Country on 7 December 2007 that it intended to negotiate and settle the family's claim and that it intended to seek indemnification for Ms. White's negligence. Although Cross Country was also notified of a mediation between NHRMC and the family, Cross Country chose not to attend. NHRMC and the family agreed to a settlement of $2,010,542.96, with $2,000,000.00 paid to the family and the remaining paid to Duke University Medical Center for medical expenses.
On 8 September 2010, NHRMC filed this action against defendants, alleging a breach of contract by Cross Country for failure to ensure Ms. White's competence and seeking indemnification from each defendant for the amounts paid in connection with the malpractice action. In the parties' staffing contract, Cross Country agreed to “indemnify and hold harmless” NHRMC “relating to any property damage, personal injuries or death directly arising out of the acts or omissions of [Cross Country] or its employees in connection with [Cross Country's] duties and services provided under this Agreement.” The contract also had an arbitration clause:
[NHRMC] and [Cross Country] each agree that they shall only be liable to the other party under this Section 16 for the proportionate liability or relative share of negligence allocated to such party based on the negligent acts or omissions of its employees, agents or representatives. If such allocation is not determined by a court of competent jurisdiction and the parties in good faith are otherwise unable to agree to such allocations, either party hereto may bring an action, including a summary or expedited proceeding, to compel binding arbitration of such matter.
Ms. White filed an answer on 16 November 2010 denying the material allegations and arguing that the mediated settlement was excessive. On 17 November 2010, Cross Country filed an answer also denying the allegations and arguing that the mediated settlement was excessive, but, in addition, asserting a cross-claim against Ms. White.
NHRMC moved for summary judgment on 16 March 2011 on (1) its claim seeking indemnification from Cross Country, (2) the issue of the reasonableness of the settlement amount, and (3) its claim for indemnification from Ms. White. Alternatively, NHRMC sought to compel arbitration.
The trial court granted summary judgment only on the issue of the reasonableness of the settlement amount, finding that defendants “had the opportunity to participate [in mediation] and declined to do so.” The court ordered that all remaining issues be arbitrated. Defendants appealed.
Discussion
Defendants concede that this appeal is interlocutory. See Liggett Grp. Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993) (“A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.”). As our Supreme Court has held, “[i]n general, a party may not seek immediate appeal of an interlocutory order.” Dep't of Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 709 (1999).
More recently, the Supreme Court has explained: “Interlocutory orders may be appealed immediately under two circumstances. The first is when the trial court certifies [under Rule 54(b) ] no just reason exists to delay the appeal after a final judgment as to fewer than all the claims or parties in the action. The second is when the appeal involves a substantial right of the appellant and the appellant will be injured if the error is not corrected before final judgment.” N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 47–48, 619 S.E.2d 495, 496 (2005) (internal citation omitted). Defendants, in this case, argue only that the appeal involves a substantial right.
This Court has expressly held that “there is no immediate right of appeal from an order compelling arbitration.” The Bluffs, Inc. v. Wysocki, 68 N.C.App. 284, 286, 314 S.E.2d 291, 293 (1984). Accordingly, the order in this case compelling arbitration is not, standing alone, immediately appealable.
Defendants nonetheless point to the partial summary judgment order and argue that a substantial right was affected because they have a right to have all disputes between the parties resolved in arbitration, including the reasonableness of the settlement amount. However, even if the partial summary judgment order was in error, defendants have not shown that they “will be injured if the error is not corrected before final judgment”—a requirement for the substantial right analysis to apply. N.C. Dep't of Transp., 360 N.C. at 47–48, 619 S.E.2d at 496.
Defendants have offered no explanation why they cannot appeal the grant of partial summary judgment after arbitration of the remaining issues is complete. If this Court, at that point, determines that the grant of partial summary judgment was improper, the reasonableness of the settlement amount could then be arbitrated.
While defendants cite In re W.W. Jarvis & Sons, 194 N.C.App. 799, 671 S.E.2d 534 (2009), in support of their position, defendants have overlooked a critical distinction between that case and this one: the appellants in In re W.W. Jarvis & Sons were challenging the trial court's partial denial of a motion to compel arbitration. Although the appellants in In re W.W. Jarvis & Sons had moved to compel arbitration on all issues, the trial court decided two of the issues itself before ordering arbitration of the remaining issues. Id. at 801–02, 671 S.E.2d at 536. In holding that the order affected a substantial right of the appellants, this Court noted that “[i]t is well established that ‘[t]he right to arbitrate a claim is a substantial right which may be lost if review is delayed, and an order denying arbitration is therefore immediately appealable.’ “ Id. at 802, 671 S.E.2d at 536 (emphasis added) (quoting Edwards v. Taylor, 182 N.C.App. 722, 724–25, 643 S.E.2d 51, 53 (2007)).
Here, defendants—the appealing parties—were not the ones moving to compel arbitration at the trial level. In fact, Ms. White has consistently opposed arbitration on the grounds that she was not a party to any arbitration agreement. The appellants in In re W.W. Jarvis & Sons were allowed to pursue an interlocutory appeal because the trial court in part denied their motion to compel arbitration. Since defendants are not appealing a denial of their motion to compel, In re W.W. Jarvis & Sons is inapplicable. Defendants have offered no other basis for this Court's jurisdiction, and, therefore, we dismiss the appeal.
Dismissed. Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).