The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-713
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
TERRY WAYNE WOOD,
Plaintiff-Appellee,
v. Forsyth County
No. 09 CVS 3520
JEREMY NUNNERY, NORTH CAROLINA
FARM BUREAU MUTUAL INSURANCE
COMPANY and FIREMEN’S INSURANCE
COMPANY OF WASHINGTON, D.C.,
Defendants-Appellants.
Appeal by Defendant Jeremy Nunnery from order entered 11
February 2013 by Judge Edwin G. Wilson, Jr. in Superior Court,
Forsyth County. Heard in the Court of Appeals 19 November 2013.
Maynard & Harris, Attorneys at Law, PLLC, by C. Douglas
Maynard, Jr., for Plaintiff-Appellee.
Van Laningham Duncan PLLC, by L. Cooper Harrell; Smith
Moore Leatherwood LLP, by James G. Exum, Jr.; and Bennett &
Guthrie, PLLC, by Rodney A. Guthrie and Roberta King
Latham, for Defendant-Appellant Jeremy Nunnery.
Pinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers, for
North Carolina Association of Defense Attorneys, amicus
curiae.
Brown Moore & Associates, PLLC, by Jon R. Moore; and White
& Stradley, PLLC, by J. David Stradley, for North Carolina
Advocates for Justice, amicus curiae.
McGEE, Judge.
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Terry Wayne Wood (“Plaintiff”) was injured on 10 May 2006,
in an automobile accident in Harnett County, as a result of the
negligence of Jeremy Nunnery (“Defendant”). At the time of the
accident, Plaintiff was driving a truck owned by Plaintiff’s
employer, in the course of his employment. Plaintiff filed a
complaint on 30 April 2009 against Defendants North Carolina
Farm Bureau Mutual Insurance Company (“Farm Bureau”), and
Firemen's Insurance Company of Washington, D.C. (“Firemen's”).
Farm Bureau was dismissed from the action and is not a
party to this appeal. Firemen's is the underinsured motorist
carrier for Plaintiff's employer. Defendant was insured at the
time of the accident by State Farm Mutual Automobile Insurance
Company (“State Farm”).
At trial, the jury determined that Defendant’s negligence
caused Plaintiff’s injuries, and awarded Plaintiff $300,000.00
in compensatory damages on 11 August 2010. The trial court
entered judgment on 31 August 2010, directing that Plaintiff
recover from Defendant damages in the amount of $300,000.00,
along with interest at the statutory rate of eight percent (8%)
from 30 April 2009. State Farm paid its policy limit of
$30,000.00 into the office of the Clerk of Court of Forsyth
County on 2 September 2010. Firemen's paid $202,627.58 into the
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office of the Clerk of Court of Forsyth County on 13 September
2010, in fulfilment of its obligations as the underinsured
motorist carrier. Plaintiff introduced evidence at trial that
he had received workers' compensation benefits totaling more
than $148,000.00. The amount of the lien of Plaintiff’s
employer’s workers’ compensation carrier was reduced, by
agreement, to $50,000.00, leaving a net benefit in workers’
compensation benefits of $98,000.00.
Defendant filed a motion for credit upon and satisfaction
of the judgment on 1 December 2010. The trial court entered an
order on 29 December 2010, ruling that the payments of
$30,000.00 by State Farm, $202,627.58 by Firemen's, and
$98,000.00 by Plaintiff’s employer’s workers’ compensation
carrier, a total amount of $330,627.58, constituted payment in
full of the judgment and that the judgment was satisfied.
Plaintiff appealed, and this Court entered an opinion on 7
August 2012 affirming in part and reversing and remanding in
part. Wood v. Nunnery, __ N.C. App. __, 730 S.E.2d 222 (2012)
(Wood I). In Wood I, and relevant to the current appeal, this
Court stated:
The trial court held that the $30,000.00
from State Farm, $202,627.58 from Firemen's,
and the net benefit of $98,000.00 in
workers' compensation benefits ($148,000.00
less the reduced lien of $50,000.00)
constituted a recovery to . . . [P]laintiff
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of at least $330,627.58. The trial court
went on to hold that “the collective
payments paid into the Office of the Clerk
of Court of Forsyth County constitute full
payment and satisfaction of the final
Judgment entered herein.”
Id. at __, 730 S.E.2d at 224. This Court went on to say:
We initially note that the trial court
conflated the concepts of the amounts owed
by [D]efendant as the tortfeasor in this
matter and the amount owed by Firemen's as
an underinsured motorist carrier (UIM).
Plaintiff instituted this action against
[D]efendant, seeking monetary damages for
personal injuries proximately caused by the
negligence of [D]efendant. The jury found
that [P]laintiff's injuries were proximately
caused by the negligence of [D]efendant and
awarded damages to [P]laintiff of
$300,000.00. The trial court entered
judgment against only [D]efendant. This
judgment was based upon [D]efendant's
negligence and was a tort recovery.
The liability of Firemen's is based in
contract, not in tort.
Id. at __, 730 S.E.2d at 224. This Court held that Defendant
was not “entitled to a credit against the judgment for payments
made by Firemen's as a UIM carrier.” Id. at __, 730 S.E.2d at
225. We further held: “The only payment to which [D]efendant
is entitled to a credit against the judgment is the $30,000.00
paid by State Farm, [D]efendant's liability insurance carrier.”
Id. at __, 730 S.E.2d at 226.
However, in remanding to the trial court, this Court
instructed:
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The trial court erred in declaring that the
judgment against [D]efendant had been paid
and satisfied in full. The portion of the
trial court's order so declaring is vacated,
and this matter is remanded to the trial
court for further proceedings consistent
with this opinion. At such a hearing, the
trial court may consider whether [D]efendant
is entitled to additional credits against
the judgment, other than the $30,000.00 paid
by State Farm.
Id. at __, 730 S.E.2d at 226.
Upon remand, the trial court, by order entered 11 February
2013, ruled that Defendant was only entitled to a credit for the
$30,000.00 paid by State Farm, his liability carrier, and that
Defendant was not entitled to any credit for monies paid by
either Firemen’s or by the workers’ compensation carrier.
Defendant appeals the 11 February 2013 order.
In Defendant’s first argument, he contends the trial court
erred in “refusing to reduce the judgment against [him] to
account for the UIM payment [made by Firemen’s] and net workers’
compensation benefits that were received by [Plaintiff] as
compensation for his injuries.” We disagree.
In the prior appeal in this case, this Court held: “We hold
that [D]efendant is not entitled to a credit for payments made
by Firemen's into the Office of the Clerk of Superior Court for
Forsyth County.” Wood I, __ N.C. App. at __, 730 S.E.2d at 225.
We have no authority to revisit that holding. Weston v.
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Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751,
753 (1994) (citations omitted) (“According to the doctrine of
the law of the case, once an appellate court has ruled on a
question, that decision becomes the law of the case and governs
the question both in subsequent proceedings in a trial court and
on subsequent appeal.”).
Less clear is the holding in Wood I concerning the workers’
compensation payments made to Plaintiff. However, the Wood I
opinion considered the credit given Defendant by the trial court
for the net workers’ compensation payout in stating: “The trial
court held that . . . the net benefit of $98,000.00 in workers’
compensation benefits ($148,000.00 less the reduced lien of
$50,000.00) constituted a recovery to . . . [P]laintiff[.]”
Wood I, __ N.C. App. at __, 730 S.E.2d at 224. The trial court
then credited that amount (along with payments made by Firemen’s
and State Farm) against Defendant’s recovery. This Court held
that the trial court had erred, stating:
We initially note that the trial court
conflated the concepts of the amounts owed
by defendant as the tortfeasor in this
matter and the amount owed by Firemen’s as
an underinsured motorist carrier (UIM).
Plaintiff instituted this action against
[D]efendant, seeking monetary damages for
personal injuries proximately caused by the
negligence of [D]efendant. The jury found
that [P]laintiff’s injuries were proximately
caused by the negligence of [D]efendant and
awarded damages to [P]laintiff of
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$300,000.00. The trial court entered
judgment against only [D]efendant. This
judgment was based upon [D]efendant’s
negligence and was a tort recovery.
The liability of Firemen’s is based in
contract, not in tort.
Id. at __, 730 S.E.2d at 224. Though this Court did not include
the workers’ compensation carrier in that discussion, its
liability, like that of Firemen’s, was in contract, not tort.
Plaintiff instituted this action in tort against Defendant, not
the workers’ compensation carrier. In Wood I, this Court
continued:
“The party against whom a judgment for the
payment of money is rendered by any court of
record may pay the whole, or any part
thereof, in cash or by check, to the clerk
of the court in which the same was
rendered[.]” N.C. Gen. Stat. § 1–239
(2011).
In this case, the judgment was entered only
against [D]efendant. It was not entered
against Firemen’s. By the plain language of
N.C. Gen. Stat. § 1–239, [D]efendant is
responsible for satisfying the judgment
entered against him.
The only payment to which [D]efendant is
entitled to a credit against the judgment is
the $30,000.00 paid by State Farm,
[D]efendant’s liability insurance carrier.
Id. at __, 730 S.E.2d at 225-26. Though the workers’
compensation payment is not specifically mentioned in this
analysis, we find no distinguishing difference between the
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relative positions of Firemen’s and the workers’ compensation
carrier in this matter. Within this context, we hold that our
holding in Wood I: “The only payment to which [D]efendant is
entitled to a credit against the judgment is the $30,000.00 paid
by State Farm, [D]efendant’s liability insurance carrier[,]”
id., applied to all potential credits that had been argued on
appeal, including the workers’ compensation payment. The trial
court, having found that Defendant was not entitled to any
additional credits not addressed in Wood I, did not err in
denying Defendant credit for payments made to Plaintiff by
Firemen’s or by the workers’ compensation carrier.
Defendant’s policy arguments are not for us to decide, as
we are bound by this Court’s holding in Wood I. The same
applies to Defendant’s collateral source argument.
Affirmed.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).