# Grimsley v. Nelson

> Supreme Court of North Carolina · February 9, 1996 · 342 N.C. 542

URL: https://www.frixlaw.com/law-library/cases/9561346

## Case

- **Full name:** Marlene R. Grimsley and Denny A. Grimsley v. Leroy Jerome Nelson
- **Court:** Supreme Court of North Carolina
- **Decided:** February 9, 1996
- **Citations:** 342 N.C. 542; 467 S.E.2d 92; 1996 N.C. LEXIS 29
- **Precedential status:** Published
- **Opinion:** Dissent by Webb
- **Judges:** Frye, Orr, Webb
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9561346

## How later opinions describe it (automated extraction)

- concluding that, where “the trial court correctly dismissed the action against [the alleged uninsured motorist due to insufficient service of process],” it also “correctly dismissed the action against [the UIM insurance company],” whose “only obligation in this case would be t…
- noting that the rules governing service of process are “strictly enforced to insure that a defendant will receive actual notice”

## Opinion text

Justice Webb
dissenting.
I dissent. I agree with the majority that the dismissal of the action against Leroy Jerome Nelson should be affirmed. I do not agree that the case against Travelers Indemnity Company (Travelers) should be dismissed.
The majority holds that because the plaintiffs cannot get a judgment against the defendant Nelson, there can be no liability for Travelers. I can find nothing in the statute or our decisions that supports this holding.
In Brown v. Lumbermens Mut. Cas. Co., 285 N.C. 313 , 204 S.E.2d 829 (1974), the statute of limitations had run on the plaintiff at the time the action was filed. This Court held the uninsured motorist carrier could plead the statute of limitations as an affirmative defense. In this case, Travelers did not plead the statute of limitations, and its motion to amend its answer to do so was denied. The question of waiver or estoppel was not involved in Brown. Silvers v. Horace Mann Ins. Co., 324 N.C. 289 , 378 S.E.2d 21 (1989), relied on by the majority, does not involve a waiver or estoppel.
In this case, the summons and complaint were served on 22 May 1992. Travelers was granted “an unlimited extension of time for filing a response” in order to negotiate a settlement. On 3 September 1992, plaintiffs’ counsel notified Travelers’ counsel that satisfactory *554 progress was not being made and requested that Travelers file an answer. On 12 October 1992, Travelers filed an answer which did not assert a jurisdictional defense. This defense was first raised on 9 November 1992. If the plaintiffs had been notified within ninety days of the issuance of the summons that it had not been properly served, they could have continued the action in existence by either obtaining an endorsement of the original summons or having an alias and pluries summons issued. N.C.G.S. § 1A-1, Rule 4(d) (1990).
The plaintiffs, with good reason, thought the summons and complaint were validly served. I believe that by waiting until after the time had expired when the defect in service could be corrected to raise the question of the validity of the service, Travelers waived this defense and is estopped to deny the validity of the service. Duke Univ. v. Stainback, 320 N.C. 337 , 357 S.E.2d 690 (1987).
I vote to affirm the decision of the Court of Appeals.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561346. Public record. Not legal advice.