Timely Service of Uninsured Motorist Actions
On July 7, 2022, the N.C. Supreme Court received a request, in the matter of Ricky DEAN, Administrator of the Estate of Olivia Darlene Flores v. Ravon Walser ROUSEAU, 2022 WL 2763493 (N.C.) to certify a case regarding the issue of whether a Plaintiff is required to formally serve an uninsured motorist carrier pursuant to Rule 4 of the North Carolina Rules of Civil Procedure within the statute of limitations (” S/L”). The timing of service has been a thorny technical issue for plaintiffs since the case of Thomas v. Washington, 136 N.C. App. 750, 525 S.E.2d 839 (2000), where, arguably in a broad sense, the Court held that actual service upon the uninsured motorist carrier needs to be effected within the 3-year statute of limitation.
Upon review of N.C. Gen. Stat. § 20-279.21(b)(3)(a), there is no explicit language dictating that Rule 4 service must be made within the S/L, and that failure to do so should result in the dismissal of an action if service was made after the S/L, when the action was nevertheless timely filed within the S/L.
The N.C Courts have continually analyzed this issue in the cases of Davis v. Urquiza, 233 N.C. App. 462, 757 S.E.2d 327 (2014), and Powell v. Kent, 257 N.C. App. 488, 810 S.E.2d 241, disc. rev. denied, 371 N.C. 338, 813 S.E.2d 857 (2018). These cases have been interpreted as standing for the proposition that service of the complaint and summons on an unnamed defendant uninsured motorist carrier must occur before the expiration of the applicable statute of limitations. However, the Court in Powell identified inconsistencies:
The holdings in Thomas and Davis appear to be inconsistent with other applications of the statute of limitation which hold that cases are timely when filed within the statute of limitation, with service of process permitted within the time frames set forth in Rule 4 of the North Carolina Rules of Civil Procedure, even when service is accomplished after the statute of limitation has expired. While we are unable to discern any requirement in N.C. Gen. Stat. § 20-279.21(b)(3)(a) that specifically requires in an uninsured motorist action that service of process also be accomplished before the date the statute of limitation expires, we are bound by the prior determinations in Thomas and Davis. Given this inconsistent application of the statutes of limitations for similarly situated litigants, this situation appears ripe for determination or clarification by our Supreme Court or Legislature.Id. at 492, 810 S.E.2d at 244-45.
Dean v. Rousseau, 2022-NCCOA-376 at ¶ 11.
All of the above cases were then recently analyzed by the Court in Dean v. Rousseau, 2022-NCCOA-376, which addresses a plaintiff’s appeal from the Court granting a 12(b)(6) motion to dismiss. Despite the urging of the Court in Powell, this specific service conundrum had not been addressed by the time the Dean Court encountered the issue. Akin to the holding in Powell, the court in Dean also held that they were bound by the prior Court’s determinations, but the Court also concluded that, “[h]owever, just as in Powell we note that the rule established by this Court in Thomas and Davis seems inapposite and inconsistent with this State’s Rules of Civil Procedure and how the statute of limitations is evaluated in other civil matters. Thus, we once again request clarification and further guidance from either our Supreme Court or General Assembly.” Id. at ¶¶ 12-13
The Plaintiff in Dean has, as of July 7, 2022, requested discretionary review by the NC Supreme Court, as suggested by the NC Court of Appeals. Plaintiff/Appellant Dean advocates to the Court that this issue “has significant public interest, the cause involves legal principles of major significance to the jurisprudence of the State, and the decision of the Court of Appeals appears likely to be in conflict with decisions of this Court.” Both insureds and uninsured motorist carriers will be waiting with interest to see how our Supreme Court responds to the issue of whether the underinsured motorist carrier must not only be sued, but also served, within the statute of limitations period.