Opinion
No. COA07-354.
Filed February 19, 2008.
Warren County No. 04 CVS 260.
Appeal by defendants Warren County and North Carolina Association of County Commissioners Liability and Property Insurance Pool Fund, from order entered 6 December 2006 by Judge Henry W. Hight, Jr. in Warren County Superior Court. Heard in the Court of Appeals 16 October 2007.
Banzet, Thompson, Styers, PLLC, by Mitchell G. Styers, for plaintiff-appellee. Teague, Campbell, Dennis Gorham, LLP, by Courtney C. Britt, George H. Pender and William A. Bulfer, for defendants-appellants Warren County and North Carolina Association of County Commissioners Liability and Property Insurance Pool Fund.
Plaintiff Regina K. Nolan brought suit against defendants Derrick Lamont Cooke and Warren County as a result of a motor vehicle accident. She asserted a cause of action for negligence against Cooke and, in her second cause of action, sought a declaration that she was entitled to uninsured motorist coverage under an insurance policy issued to Warren County by the North Carolina Association of County Commissioners Liability and Property Insurance Pool Fund ("the Pool"). The Pool was subsequently added as a defendant.
The County and the Pool appeal from an order concluding that (1) the Pool's policy provides coverage in the amount of $2,000,000 for uninsured motorist claims, and (2) coverage applies to plaintiff's action for damages. Because plaintiff's negligence claims remain pending, however, this appeal is interlocutory. Defendants have failed to establish that this Court has jurisdiction over this interlocutory appeal and, therefore, we dismiss it.
Facts
Plaintiff was a deputy sheriff with the Warren County Sheriff's Department. On 21 February 2002, while on duty and driving her patrol car, she engaged in a vehicle pursuit of Derrick Lamont Cooke. During the pursuit, Cooke struck plaintiff's car, significantly injuring plaintiff. At the time of the accident, Cooke was uninsured. Plaintiff's medical expenses totaling $197,193.75 were paid by workers' compensation.
On 17 September 2004, plaintiff filed suit against Cooke and Warren County, alleging that Cooke was negligent and that plaintiff was entitled to coverage under Warren County's motor vehicle insurance policy. The County moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Rules of Civil Procedure or alternatively to strike the allegations regarding the County's liability insurance pursuant to Rule 12(f).
On 8 March 2005, plaintiff filed an amended complaint asserting a first cause of action for negligence against Cooke and a second cause of action for declaratory relief with respect to plaintiff's entitlement to insurance coverage under the Pool's policy. On 29 June 2005, the trial court entered an order denying the motion to dismiss, adding the Pool as a defendant, and allowing plaintiff to amend her complaint. On 30 August 2005, defendants Warren County and the Pool again moved to dismiss the complaint or, alternatively, for separate trials under Rule 42(b). Defendants also moved for entry of an order "staying plaintiff's First Cause of Action until such time as a full and final ruling on plaintiff's Second Cause of Action for declaratory judgment is entered."
In an order entered 11 September 2006, following a pretrial conference, the trial court stated:
Additional consideration has been given to a, separation of the triable issues, with defendants, Warren County and the North Carolina Association of, County Commissioners Liability and Property Insurance, Pool Fund moving for separate trials on plaintiff's, claims for declaratory relief and her claim for, damages arising from the alleged liability of, Defendant Cook. Plaintiff has consented to this, separation of trials and has consented with the, Court's permission to a trial on plaintiff's claims, for declaratory relief in advance of any trial on, damages.
The order further stated:
It is understood and agreed by the parties that, the car being driven by defendant Derrick Cooke, was uninsured at the time of the collision with, plaintiff. This agreement is not a waiver of: (a), any rights plaintiff may have for other primary, insurance coverage that may exist for defendant, Cooke, and (b) any right for additional set-offs, that defendants may assert if other insurance is, found.
(Emphasis added.) The parties waived their rights to a jury trial.
Following a hearing before the trial court on 16 October 2006, the court entered an order on 6 December 2006 concluding that the Pool provided $2,000,000 in coverage for uninsured motorist claims and that such coverage would apply to plaintiff's action for damages. The court also held that any amount paid by the County to plaintiff in workers' compensation would not be deducted from the coverage limits, but instead would constitute a lien against any amount recovered in accordance with N.C. Gen. Stat. § 97-10.2 et seq. (2005).
Defendants Warren County and the Pool have appealed from the trial court's order. Plaintiff contends that defendant's appeal is interlocutory and that the appeal should, therefore, be dismissed.
Discussion
"[A] final judgment is one which disposes of the cause as to all parties, leaving nothing to be judicially determined between them in the trial court." Hinson v. Hinson, 17 N.C. App. 505, 508-09, 195 S.E.2d 98, 100 (1973). On the other hand, an order is interlocutory if it is made during the pendency of an action and does not dispose of the case, but rather requires further action by the trial court in order to finally determine the entire controversy. Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993). Generally, there is no right to appeal from an interlocutory order unless (1) the trial court made the required certification under Rule 54 of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review. Eckard v. Smith, 166 N.C. App. 312, 316, 603 S.E.2d 134, 137-38 (2004), disc. review denied in part, 359 N.C. 321, 611 S.E.2d 410, aff'd in part, 360 N.C. 51, 619 S.E.2d 503 (2005).
It is the appellant's responsibility to establish this Court's jurisdiction to hear an appeal. Specifically, Rule 28(b)(4) of the Rules of Appellate Procedure requires that the appellant include in his brief "[a] statement of grounds for appellate review." The rule provides further:
Such statement shall include citation of the statute, or statutes permitting appellate review. When an, appeal is based on Rule 54(b) of the Rules of Civil, Procedure, the statement shall show that there has, been a final judgment as to one or more but fewer than, all of the claims or parties and that there has been a, certification by the trial court that there is no just, reason for delay. When an appeal is interlocutory, the, statement must contain sufficient facts and argument, to support appellate review on the ground that the, challenged order affects a substantial right.
Id.
Defendants' statement of grounds for appellate review asserts in its entirety:
Appellants appeal the December 6, 2006 final Order of, the Honorable Superior Court Judge Henry W. Hight, Jr., pursuant to N.C.G.S. § 7A-27. Appellee's civil, action, as originally filed, encompassed both a, declaratory judgment action against Appellants as well, as a liability action against Defendant Cooke., However, the parties later consented to the separation, of these actions and the trial of the declaratory, judgment action before the liability trial, with, permission of the trial court.
Defendants have not indicated whether they are contending that the appealed order is a final judgment, an interlocutory order appealable under Rule 54(b), or an interlocutory order affecting a substantial right. Nor do defendants point to any specific authority suggesting that this Court has jurisdiction. N.C. Gen. Stat. § 7A-27 (2005), the sole authority cited by defendants, simply sets out generally the circumstances under which appellate review may occur. Defendants do not even specify which subsection of § 7A-27 applies.
The complaint in this action asserted two causes of action: (1) a claim for negligence against defendant Cooke, and (2) a claim for declaratory relief against defendants Warren County and the Pool. The order on appeal resolves only the request for declaratory relief, leaving plaintiff's claims against Cooke pending. Further, by virtue of the court's determination that coverage exists, the case is not necessarily over for the Pool. See N.C. Gen. Stat. § 20-279.21(b)(4) (2005) ("Upon receipt of notice, the underinsured motorist insurer shall have the right to appear in defense of the claim without being named as a party therein, and without being named as a party may participate in the suit as fully as if it were a party.").
Because claims remain pending, the order on appeal is interlocutory. See Eckard, 166 N.C. App. at 316, 603 S.E.2d at 137("Because plaintiff's claims against defendant [uninsured motorist] remain to be resolved, the two orders from which plaintiff has appealed are interlocutory orders."); Sturdivant v. Andrews, 161 N.C. App. 177, 178, 587 S.E.2d 510, 511 (2003) (holding that order dismissing uninsured motorist coverage carrier was interlocutory when claims against defendant driver remained pending), disc. review denied and cert. dismissed, 358 N.C. 242, 594 S.E.2d 34 (2004).
To the extent defendants are contending that a final judgment was entered as to the County and the Pool and, therefore, the appeal is not interlocutory, that argument is precluded by Rule 54(b), which provides: "[T]he court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal. . . ." Even if the court entered an order finally resolving the claims against the County and the Pool, the order did not include the required Rule 54(b) certification and, therefore, no final judgment exists under Rule 54(b).
While defendants appear to be suggesting that the trial court effectively divided this lawsuit into two separate actions, the record indicates only that the parties agreed to a bifurcated proceeding. See Church v. Allstate Ins. Co., 143 N.C. App. 527, 533, 547 S.E.2d 458, 462 (2001) ("In cases where the UIM carrier defends the liability issues as an unnamed defendant, we hold that trial of the coverage issues should be bifurcated."). Indeed, Rule42(b)(1), on which defendants relied in seeking a separate trial, simply provides: "The court may in furtherance of convenience or to avoid prejudice and shall for considerations of venue upon timely motion order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues." Defendants have cited no authority — and we have found none — suggesting that a bifurcation of proceedings exempts an appellant from the requirements of Rule 54(b).
Consequently, in order for jurisdiction to exist over this interlocutory appeal, the order must affect a substantial right — a circumstance that the appellant bears the burden of establishing. Embler v., Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 262 (2001). To meet this burden, the appellant must make a two-pronged showing: "First, the right itself must be substantial. Second, the deprivation of that substantial right must potentially work injury if not corrected before appeal from a final judgment." Perry v. N.C. Dep't of Corr., 176 N.C. App. 123, 129, 625 S.E.2d 790, 794 (2006) (internal citation omitted).
Here, defendants have not specifically argued that any substantial right will be lost or adversely affected if the trial court's order granting declaratory relief is not reviewed prior to the final judgment. Further, the statement of grounds of appellate review does not contain any facts implying the existence of a substantial right. As this Court has explained, "[i]t is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Since defendants have not demonstrated the existence of any substantial right that would be lost without immediate review, we dismiss the appeal.
Dismissed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).