# Kemp v. Spivey

> Court of Appeals of North Carolina · October 5, 2004 · 166 N.C. App. 456

URL: https://www.frixlaw.com/law-library/cases/9581091

## Case

- **Full name:** LILLIE FREEMAN KEMP, Plaintiff v. KRISTY GAYLE SPIVEY and TABOR CITY RESCUE SQUAD, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** October 5, 2004
- **Citations:** 166 N.C. App. 456; 602 S.E.2d 686; 2004 N.C. App. LEXIS 1781
- **Precedential status:** Published
- **Opinion:** Concurrence by Geer
- **Judges:** Bryant, Elmore, Geer
- **Cited by:** 22 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/9581091

## How later opinions describe it (automated extraction)

- holding that the trial court erred by converting a dismissal motion to a summary judgment motion without affording the parties “ ‘a reasonable opportunity to present all material made pertinent to such a motion by Rule 56’ ”
- reversing and remanding an appeal from an order granting a motion to dismiss where the trial court considered matters *34 outside the pleadings, but the parties were not accorded a reasonable opportunity to present all pertinent material
- reversing and remanding an appeal from an order granting a motion to dismiss where the trial court considered matters outside the pleadings, but the parties were not accorded a reasonable opportunity to present all pertinent material
- reversing and remanding order dismissing claims under Rule 12(b)(6

## Opinion text

GEER, Judge,
concurring.
I concur with the majority opinion, but write separately to stress that the trial court should be free to independently assess whatever evidence the parties submit on the question whether plaintiff should be estopped from pursuing her claims because of her failure to file counterclaims in the prior actions. I believe that plaintiff has submitted evidence that suggests estoppel would not be appropriate, but I also believe that defendants should have an opportunity to present contrary evidence after discovery, if necessary.
In the prior actions, plaintiff was sued only for indemnification and contribution. She was represented by the Attorney General’s *463 Office pursuant to N.C. Gen. Stat. § 143-300.1 (2003). This statute gives the Attorney General authority to settle a case brought against a bus driver and provides that the settlement funds are to be paid by the State Board of Education. N.C. Gen. Stat. § 143-300.1 (d). The statute gives no indication that a bus driver has any control over the litigation if defended by the Attorney General. Cf. Keith v. Glenn, 262 N.C. 284, 286 , 136 S.E.2d 665, 667 (1964) (“[A] settlement, made without insured’s assent or subsequent ratification, while protecting the insurer from further claims, would not bind the insured.”); Bradford v. Kelly, 260 N.C. 382, 384 , 132 S.E.2d 886, 887-88 (1963) (“However, it is now settled law in this State that the exercise of this privilege by the insurer [to settle claims brought against the insured] will not bar the right of the insured, or anyone covered by his policy, to sue the releasor for his damages where he has neither ratified nor consented to such settlement.”).
Plaintiff has submitted evidence, in the form of her own affidavit and the affidavit of the Assistant Attorney General who represented her, that the Assistant Attorney General was not allowed to represent plaintiff on her individual claims for personal injury, that he did not personally meet with her until 15 November 2001, and that it was only on that date that he told plaintiff that she would need to seek her own attorney to file any personal injury claim. The record before this Court is not clear, but it appears that all of the cases in which plaintiff could have filed the compulsory counterclaim prior to filing her own lawsuit had been settled prior to 15 November 2001. Plaintiff filed this lawsuit on 27 December 2001, just over a month after meeting with the Assistant Attorney General. I believe that this evidence — to which defendants have not yet had an opportunity to respond — appears to give rise to an issue of fact regarding the question of estoppel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9581091. Public record. Not legal advice.