Kahihu v. Brunson – NC Car Accident Victim Loses Appeal of Directed Verdict for Insurer

A North Carolina car accident victim who sustained serious injuries and property damage in a serious collision will be allowed to move forward with a claim against the at-fault driver. However, he won’t be allowed to continue pursue uninsured motorist benefits, after the state appellate court upheld the trial court’s earlier directed verdict.
In Kahihu v. Brunson, the issues that gave rise to the decision were basically technicalities, but they had to do with two primary issues:

  • That the plaintiff failed to provide sufficient service of process to the defendant;
  • That the trial court erred in lumping the insurance company in with the at-fault driver when issuing a default judgment in favor of the plaintiff.

Asheville car accident attorneys recognize that in so many personal injury cases, how and when a case is presented and filed matter. Because tort law in this state is complex, injured parties take a big risk by trying to save a few bucks hiring a law firm with less experience. A single oversight or missed deadline could derail the entire case.

In Kahihu, the case began with an April 2011 crash in Durham. Both drivers were traveling the same direction on the same street when the defendant swerved without warning in front of the plaintiff before slamming on his brakes. The plaintiff swerved and braked, but was unable to avoid a collision.

The plaintiff later filed a lawsuit, alleging negligence resulting in injuries, property damage and other expenses. Several attempts were made to notify the at-fault driver of the litigation. Finally, a signed notice of summons was returned to the plaintiff, but the defendant never formally responded to the complaint. The plaintiff then filed a motion for an entry of default against the defense, which the court granted.

Soon after, however, the plaintiff filed an amended motion to set aside that default, asserting there were other responsible parties not known to the plaintiff at the time of the ruling, which caused him to fail to correctly serve all responsible parties. The court agreed to set the motion aside.

Further notice was issued and signed and another default judgment was requested. This time,the affidavit indicated the plaintiff would pursue uninsured motorist damages from his own insurer as well. The complaint was sent via certified mail to the insurer as well.

The insurer moved to dismiss the plaintiff’s complaint for lack of jurisdiction and insufficiency of process. However, the trial court granted the plaintiff’s request for default judgment against both the at-fault driver and the insurer, on the basis that the defendants had failed to file timely responses.

The insurer requested the trial court set aside that ruling because it was erroneously issued after the insurer had appropriately submitted a response. The trial court later agreed, finding that the insurer and the driver were two different entities, and an entry of default for one shouldn’t necessarily dictate the outcome for the other.

Later, a summary judgment in favor of the plaintiff was awarded against the at-fault driver.

However, the claim against the insurer was not successful because no summons was ever formally served on that defendant, as required by law. The plaintiff appealed, but the state appellate court affirmed.

Contact the North Carolina injury lawyers at the Lee Law Offices in Asheville by calling 800-887-1965.

More Blog Entries:
Kahihu v. Brunson, June 3, 2014, North Carolina Court of Appeals

More Blog Entries:
Third-Party Liability in South Carolina DUI Cases, Jan. 27, 2014, Asheville Car Accident Attorney Blog

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