The case was voluntarily dismissed without prejudice and with leave to re-file and, Mr. Powell subsequently re-filed his action.

Mid-Continent moved for summary judgment, arguing among other things that because the automobile accident alleged by Mr. Powell had occurred on February 8, 2006 and because Mid-Continent had not been served with the summons and complaint until more than six weeks after the expiration of the statute of limitations, Mr. Powell's claims against Mid-Continent had to be dismissed.

The trial court granted Mid-Continent's motion, and Mr. Powell appealed. He contended that he did not have to obtain service on Mid-Continent within three years of the date of injury to be within the statute of limitations, that N.C. Gen. Stat. § 20-279.21(b)(3) did not require that a civil summons be issued against Mid-Continent, and that he had timely served Mid-Continent in accordance with N.C. Gen. Stat. § 20-279.21(b)(3).

North Carolina Law

N.C. Gen. Stat. § 20-279.21(b)(3)(a) provides that in order for a UM carrier to be bound by a judgment against an uninsured motorist, the insurer must be:

served with copy of summons, complaint or other process in the action against the uninsured motorist by registered or certified mail, return receipt requested, or in any manner provided by law[.]

Once an insurer has been properly served, it becomes:

a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court explained that although N.C. Gen. Stat. § 20-279.21(b)(3)(a) does not specify a time limitation for service on a UM carrier, the three-year statute of limitations applicable to automobile negligence actions, which begins running on the date of an accident, applied to UM insurers.

The appellate court acknowledged that courts have held that a case was timely when filed within the statute of limitations, 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 was accomplished after the statute of limitation had expired.

However, the appellate court said, that was not the rule for suits against UM carriers.

Here, the appellate court observed, the automobile accident had occurred on February 8, 2006 and the three-year statute of limitations applicable to automobile negligence actions had expired on February 8, 2009. Although Mr. Powell had instituted an action within the limitations period and had properly served Mr. Kent and Ms. Young, Mid-Continent was not served with the summons and complaint until March 31, 2009 – outside of the three-year statute of limitations. Accordingly, the appellate court concluded, the trial court had not erred by granting summary judgment in favor of Mid-Continent.

The case is Powell v. Kent, No. COA17-708 (N.C. Ct.App. Jan. 16, 2018). Attorneys involved include: Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-appellant. Sizemore McGee, PLLC, by Charles E. McGee, for unnamed defendant-appellee Mid-Continent Casualty Company.