By Tara Muller
This article appeared originally in The Peacemaker, the newsletter of the NCBA’s Dispute Resolution Section.
In the world of public opinion, alternative dispute resolution still struggles to compete with its crusty cousin – the traditional, costly, and lengthy trial process. For years, parties interested in enforcing arbitration provisions in lieu of trial have wrestled with the obstacle of unclear North Carolina appellate precedent as to whether courts would compel mandatory arbitration when the parties engaged in some initial litigation before moving to enforce the arbitration provision. Fortunately for the up-and-coming arbitration protagonist in this tale, the North Carolina Court of Appeals kicked off 2018 with a bang, clearing up a history of self-described “divergent case law” and handing a win to parties interested in enforcing arbitration provisions.
By Daniel Knight
In case you missed it, the Insurance Law Section of the North Carolina Bar Association held its annual meeting and CLE at the NC Bar Center in Cary on January 31, 2018. This year’s CLE offered a great selection of speakers presenting on a variety of practical topics, including useful tools in litigating coverage matters, such as E-discovery, use of experts, and tips for deposing insurance adjusters, the Section’s annual insurance case law update, understanding professional liability insurance, and managing stress through the use of mindfulness. Video Replays of the CLE will be on March 27, 2018 in Cary and April 12, 2018 in Winston-Salem. Click here to register for one of the live replays.
By Bill Lipscomb
In Elliott v. Am. States Ins. Co. 2018 U.S. App. LEXIS 3952 (4th Cir. 2/20/2018), the 4th Circuit held that a UIM insurer, in a claim where the tortfeasor’s liability coverage had already been paid, did not violate paragraphs (f), (g) and (h) of N.C.G.S. § 58-63-15 (11) by declining to make an offer until after its insured filed a lawsuit against the tortfeasor and then making only “token offers” before the arbitration hearing (which resulted in an arbitration award close to the UIM limit), because the UIM carrier’s liability is derivative of the tortfeasor’s liability and is not determined until the tortfeasor’s liability for damages has been determined.
By James W. Bryan
On February 20, 2018, the North Carolina Court of Appeals upheld a ruling of the North Carolina Business Court that provides further clarification on whether a claimant with a judgment against the insured may sue the insurer for deceptive trade practices. USA Trouser, S.A. de C.V. v. Williams, 2018 WL 943639 (N.C.App. 2018). In this case, Navigators Insurance Co. issued a directors and officers liability insurance policy to the insured International Legwear Group, Inc. (“ILG”). Plaintiff USA Trouser S.A. de C.V. (“USAT”), a trade creditor of the insured, sold socks on credit to the insured. In federal court in Charlotte, USAT sued ILG and three of its directors/officers for failing to disclose ILG’s worsening financial condition while continuing to obtain products from USAT upon credit. USAT obtained a default judgment for $2.0 mil. USA Trouser later filed the instant action in state court against Navigators asserting claims for, among other things, bad faith claims settlement practices and unfair trade practices pursuant to N.C. Gen. Stat. § 75-1.1. Navigators moved to dismiss. In opposing the motion, USAT argued it became a third-party beneficiary to the insurance policy upon entry of the default judgment and obtained the right to payment on the judgment and to sue the insurer directly for its failure to pay. Business Court Judge Gale granted the motion to dismiss and USAT appealed.
A newly published LexisNexis Practice Guide entitled “North Carolina Insurance Litigation (2018 edition)” is now available. This publication was authored and edited by members of the Pinto Coates Kyre & Bowers PLLC firm, most of whom are members of this Section. Some other attorneys from around the state were also contributing authors, many of whom are also members of this Section. The Guide is a primer on the provisions and construction of the most common types of insurance policies, and includes tips for practitioners representing both insurers and policyholders. The book was written by lawyers for lawyers and insurance professionals, but may provide some insight for others interested in the topic.
Click here for more details.
By Drew Erteschik, J.M. Durnovich and Cosmo Zinkow
It is almost unheard of that a state or local government entity is able to tap into a new source of cost savings that has not already been tapped. Fortunately, however, as a result of a recent administrative ruling from the North Carolina Department of Administration, state and local government entities are now able to pursue millions of dollars in taxpayer savings.
Interested in a leadership role in the new Section? Contact Pegeen Turner or Matt Van Sickle.
Welcome to the Small Firm & Technology Section. It has taken us about a year, but we are now rolling out our new name. As of the NCBA Board of Governors meeting on Thursday, Jan. 25, the Law Practice Management & Technology Section and the Solo, Small Firm & General Practice Section have been approved to officially combine to form the Small Firm & Technology Section. This change will formally roll out July 1, 2018, but we are introducing the new name now in preparation for the upcoming bar year.
By Erik Mazzone
“The future is already here – it’s just not very evenly distributed.”
– William Gibson
I’ve thought about that quote a lot over this bar year, particularly when watching the work of our newly formed Future of Law Committee. That committee, convened by President Caryn McNeill on July 1, 2017, is charged with helping the NCBA to cast its headlights further down the road than we’ve previously done; to see not just the changes that are likely to come in the next 12 months, but the issues that lurk around the bend in the next two to four years.