By Chelsea Townsend
Editor’s note: The Government & Public Sector Section of the North Carolina Bar Association awards up to three scholarships each year to law students who work as an unpaid interns in a North Carolina government law department. Townsend is a 2L at Elon University School of Law.
This summer I had the pleasure of interning with the Wake County Public Defender’s Office. When asked about this experience I have a hard time figuring out where to even start. The best way that I could explain my summer is to describe it as “the best experience of my life.” I spent many of my days visiting clients in jail, drafting memorandums, serving subpoenas and conducting investigations. My favorite part of this summer was the actual hands-on experience that I gained. I spent my first year of law school learning how to essentially be a lawyer. However, it is important to note that there are some things that cannot be taught in the confines of a classroom. This internship gave me the opportunity to work on real cases with real attorneys, involving real people, who had real issues. It is one thing to learn how to conduct client interviews in class but it is a completely different thing to actually do it. Within the first week of my internship I found myself doing many of these legal tasks independently. Every day was a learning experience, and for that I am grateful.
By Jim Bryan
The Insurance Law Section has a new medium for giving you insurance news – a blog. We have moved away from a newsletter format and now embrace the blog format. Welcome. I am the chair of the Insurance Law Section this 2017-18 year. We have an exciting year ahead of us. Let me give you a quick snapshot.
We are moving the annual meeting/CLE from the April date to a January date. It will be Wednesday, Jan. 31, at the NC Bar Center on Weston Parkway in Cary. The CLE program co-chairs are Alan Ruley and Deb Bowers. You will soon receive a brochure about the CLE, and I encourage you to register and attend.
By Bill Lipscomb
On Aug. 1, 2017 the North Carolina Court of Appeals issued a decision which provides two helpful takeaways for the insurance law practitioner. In Plum Properties, L.L.C. v. N.C. Farm Bureau Mut. Ins. Co., 2017 N.C. App. LEXIS 607, Plum Properties, L.L.C. (Plum) filed a tort action against two minors and their mothers, alleging that the minors “intentionally, willfully and maliciously” vandalized four houses owned or managed by Plum, causing $58,000 in damage and that the mothers were also liable for the damages based on negligent supervision of their minor children. Both mothers had homeowners insurance policies with Farm Bureau which provided personal liability coverage for “property damage caused by an occurrence” (occurrence defined as an accident), but contained the standard “expected or intended injury” exclusion, which excludes coverage for “property damage which is intended by or which may reasonably be expected to result from the intentional acts or omissions or criminal acts or omissions of one or more insured persons.” Plum filed a declaratory judgment action against Farm Bureau seeking a declaration that the damages alleged in the underlying tort action are covered by the mothers’ homeowners policies. The Court of Appeals affirmed summary judgment for Farm Bureau.
By Jim Bryan
Demonstrating that equitable estoppel can create genuine obstacles for insurers, the court in the Middle District of North Carolina denied a carrier relief to which it would have otherwise been entitled based upon the carrier’s prior conduct.
Vytas and Lee Anne Bankaitis sued Defendant Allstate Insurance Company in state court for breach of contract, deceptive trade practices, unfair claims settlement practices and bad faith. Plaintiffs alleged, among other things, that after a fire loss Allstate was aware of the breadth of the damages claimed and refused to provide sufficient value in replacement cost of Plaintiffs’ home. Plaintiffs also alleged that Allstate knew it intended to deny the claim for additional damages, failed to tell Plaintiffs, required them to file multiple claims for the same loss and effectively placed their claims beyond the applicable statute of limitations. Allstate removed the action to the U.S. District Court and filed its motion to dismiss contending Plaintiffs’ “causes of action for breach of contract and bad faith were untimely filed and thus subject to dismissal for failure to state a claim.” Bankaitis v. Allstate Ins. Co., No. 2017 WL 168907 (M.D.N.C. Jan 17, 2017). Allstate did not move to dismiss the deceptive trade practice claim (where the statute of limitations is four years), and Plaintiffs conceded on Allstate’s motion to dismiss the unfair claim settlement practices claim under N.C.G.S. 58-63-15(11) because such statute does not create a private right of action. The U.S. District Court found that, while Plaintiffs’ claims for breach of contract and bad faith would ordinarily be barred pursuant to the applicable statute of limitations, Plaintiffs established equitable estoppel sufficient to withstand dismissal of their claims at this stage of the litigation.
By Paul T. Flick
Mediation is an alternative dispute resolution process used in lieu of formal procedures, where a neutral mediator attempts to help the parties come to a mutually acceptable agreement. The mediator can facilitate negotiations, review positions, exchange offers, point out the best and worst possible outcomes, etc. It is mostly an informal process, but typically follows a general pattern of holding an opening session where all parties and their lawyers are present and then holding separate caucuses.
Lawyers should prepare for mediation ahead of time, but not overdo it. While all mediations are different and rely some on the style and skill of the mediator for a successful mediation, proper preparation by the lawyers for the parties sets the table for a successful, or unsuccessful, mediation.
So, in short, how should a lawyer prepare for mediation?
By Debbie Harris
First of all, I would like to say thank you for allowing me to serve as your Chair for 2017-2018. I am truly humbled by the honor. It is hard to believe how fast the past three years have flown by since I took over as treasurer for the Division. It seems like just yesterday that I sat in nervous excitement, wide-eyed and full of wonder in my first retreat/council meeting in 2012 at the North Carolina Zoo. Several years have passed, but I still sit wide-eyed and full of wonder at the amount of talent, intelligence, and experience that sits around me at our council meetings. We are truly fortunate to have such a hard-working, engaged group of professionals in our Division.
By Laura Graham
“For want of a comma, we have this case.” Thus begins the opinion in O’Connor v. Oakhurst Dairy, a 1st Circuit case decided in March that has rekindled a long-standing debate: Should the Oxford comma be used or not?
The Oxford comma—also known as the serial comma or the Harvard comma—is the comma between the penultimate and final items in a written list. For example, in the sentence, “The American flag is red, white, and blue,” the comma after “white” is an Oxford comma. Punctuation purists insist that the Oxford comma should always be used; but other constituencies argue that it is usually superfluous and unnecessary and should be reserved for sentences in which the absence of the comma would create ambiguity.
By Daphne Edwards and Becky Watts
Equitable Distribution, Miller v. Miller, COA 16-486, April 18, 2017
In Miller v. Miller, the Court of Appeals addressed procedural and substantive issues regarding an equitable distribution claim. First, the Court of Appeals addressed application of N.C.R. Civ. P. 60(b)(6) to determine whether the trial court properly set aside a judgment of absolute divorce to allow the Wife to pursue an equitable distribution (hereafter “ED”) claim. The Court held the trial court properly entered its order vacating the divorce judgment under Rule 60(b)(6) to allow the Wife to pursue an ED claim. Specifically, Wife had filed a complaint for divorce from bed and board and ED at a time when the parties were not living separate and apart. The trial court granted her divorce from bed and board claim and the parties began living separate and apart on March 21, 2012. A consent order was entered on April 16, 2012, in which the court republished the Wife’s ED claim. Motions were entered regarding ED and the parties mediated the claim unsuccessfully in December 2012.