STATUTE OF LIMITATIONS
- Personal Property3 YearsN.C.G.S.A. § 1-52(1)-(5)
- Personal Injury/Death3 YearsN.C.G.S.A. § 1-52(1)-(5); Nelson v. Patrick, 293 S.E.2d 829 (N.C. 1982)
- Personal Injury/Wrongful Death2 YearsN.C.G.S.A. § 1-53(4)
- Breach of Contract/Written3 YearsN.C.G.S.A. § 1-52(1)
- Breach of Contract/Oral3 YearsN.C.G.S.A. § 1-52(1)
- Breach of Contract/Sale of Goods4 YearsN.C.G.S.A. § 25-2-725
- Statute of Repose/Products10 YearsN.C.G.S.A. § 1-46.1(1)*
- Statute of Repose/Real Property6 YearsN.C.G.S.A. § 1-50**
- Breach of Warranty/U.C.C.4 YearsN.C.G.S.A. § 25-2-725(1)***
- Breach of Warranty/Personal Injury3 YearsN.C.G.S.A. § 1-52(1)-(5)
- Breach of Warranty/Property Damage3 YearsN.C.G.S.A. § 1-52(1)-(5)
- Workers’ Compensation3 YearsN.C.G.S.A. § 97-10.2
- Strict Product Liability3 YearsN.C.G.S.A. § 1-52(16)
Statute of Limitations Exceptions
*12 years after “initial purchase” by end user. N.C.G.S.A. § 1-46.1(1).
**6 years after “last act of defendant” or “substantial completion” by the improvement. N.C.G.S.A. § 1-50.
***N.C.G.S.A. § 25-2-725(1) but 3 years when personal injury or property damage other than to product itself. N.C.G.S.A. § 1-52(1)-(5).
Contributory Negligence/Comparative Fault
Pure Contributory Negligence: Damaged parties cannot recover any damages if even 1% at fault. Plaintiff may not recover if his negligence proximately caused his injury. Smith v. Fiber Controls Corp., 268 S.E.2d 504 (N.C. 1980); N.C.G.S.A. § 99B-4(3) (Product Liability).
Med Pay/PIP Subrogation
Med Pay: No. Med Pay subrogation clauses in auto policies are not allowed. 11 N.C.A.C. § 12.0319. Therefore, contractual subrogation/reimbursement is not allowed. Equitable subrogation is probably allowed but the law is not entirely clear on this. The three year personal injury statute of limitations runs from the date of the insured’s accident. N.C.G.S.A. § 1-52(1)-(5).
PIP: Coverage not applicable.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
North Carolina has discussed the Made Whole Doctrine once, in the case of St. Paul Fire & Marine Ins. Co. v. W.P. Rose Supply Co., 198 S.E.2d 482 N.C. App. 1973). In that case, the Court held that:
“The great weight of authority is … that, when the loss exceeds the insurance, as the cause of action is indivisible and the right of the insurer is not because of any interest in the property destroyed or damaged, and is enforced upon the equitable principle of subrogation, the action must be brought by and in the name of the owner of the property, and that he is entitled to recover the entire damages, without diminution on account of the insurance, and that he holds the recovery first to make good his own loss, and then in trust for the insurer …” Id. at 485 (citing Powell & Powell v. Wake Water Co., 88 S.E.2d 426 (N.C. 1916)).
Ironically, North Carolina does not mention the subject again or give us any guidance as to how it is to be applied, if at all. W.P. Rose Supply Co. is a purely equitable subrogation case with no contractual analysis in its opinion. When the sum recovered by the insured is less than the total loss, the loss should be borne by the insurer. W. P. Rose Supply Co., supra; 11 N.C.A.C. § 12.0319 (prohibiting subrogation clause in life, accident and health insurance policies).
Economic Loss Doctrine
Majority Rule. North Carolina’s ELD provides that a breach of contract does not ordinarily “give rise to a tort action by the promisee against the promisor.” Ellis v. La.–Pac. Corp., 699 F.3d 778 (4th Cir. 2012) (quoting N.C. State Ports Auth. v. Lloyd A. Fry Roofing Co., 240 S.E.2d 345 (N.C. 1978)). More specifically, it “prohibits recovery for purely economic loss in tort when a contract, a warranty, or the UCC operates to allocate risk.” Kelly v. Ga.–Pac. LLC, 671 F.Supp.2d 785 (E.D.N.C. 2009). In cases arising out of the sale of failed goods, the ELD bars “recovery for purely economic loss in tort, as such claims are instead governed by contract law.” Lord v. Customized Consulting Specialty, Inc., 643 S.E.2d 28 (N.C. App. 2007). Damage to the product itself may not be recovered in tort based on a defect of the product. Moore v. Coachmen Indus., Inc., 499 S.E.2d 722 (N.C. 1998). However, where “other property” is damaged, the damage to product can be recovered. Lord v. Customized Consulting Specialty, Inc., 643 S.E.2d 28 (N.C. App. 2007). Damage to the underlayment of flooring is not recoverable due to the ELD because the underlayment is not considered to be “other property”, but the vinyl flooring over the underlayment is considered “other property.” Terry’s Floor Fashions, Inc. v. Georgia-Pac. Corp., 1998 WL 1107771 (E.D. N.C. 1998). However, the entire house is not considered “other property” with regard to damage done by synthetic stucco covering the house. Land v. Tall House Building Co., 602 S.E.2d 1 (N.C. App. 2004).
North Carolina has rejected the implied co-insured rationale set forth in the “Sutton Rule” that allows the landlord’s insurer to bring a subrogation claim against the tenant, absent an express agreement to the contrary contained in the lease. Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, 190 (N.C. 1953). Upon paying a loss by fire, the insurer is entitled to subrogation to the rights of insured against the third-party tortfeasor causing the loss, to the extent of the amount paid. In William F. Freeman, Inc. v. Alderman Photo Co., 365 S.E.2d 183 (N.C. App. 1988), the court held that a lease that only addresses insurance coverage and subrogation rights will not extend to exempt the parties from liability for negligence. There, the lease required the parties to insure their own property, and the court concluded the parties included the subrogation clause to ensure each party would only be required to pay for damages to his own property. The court reasoned because the lease contained “no clear, explicit words waiving liability for negligence[,]” it would not infer the parties intended to do so. In Morrell v. Hardin Creek, Inc., 2017 WL 3480543 (N.C. App. 2017), even though the lease stated the parties “agree and discharge each other from all claims and liabilities arising from or caused by any hazard covered by insurance,” the court ruled the lease did not explicitly state the parties contemplated waiving claims stemming from negligence.
Adverse Presumption/Inference: The North Carolina Supreme Court recognizes a permissive, rather than mandatory adverse inference may be drawn against a spoliator of evidence. McLain v. Taco Bell Corp., 137 N.C. App. 179, 182-192, 527 S.E.2d 712, 715 – 721 (N.C. App. 2000). “[T]o qualify for the adverse inference, the party requesting it must ordinarily show that the spoliator was on notice of the claim or potential claim at the time of the destruction.“ McLain, 137 N.C. App. at 187, 527 S.E.2d at 718 (quotation omitted). The obligation to preserve evidence may arise prior to the filing of a complaint where the opposing party is on notice that litigation is likely to be commenced. Id. The evidence lost must be “pertinent” and “potentially supportive of plaintiff’s allegations.” Id. at 188, 527 S.E.2d at 718. Finally, “[t]he proponent of a missing document inference need not offer direct evidence of a cover-up to set the stage for the adverse inference. Circumstantial evidence will suffice.” Id. at 186, 527 S.E.2d at 718; Arndt v. First Union Nat. Bank, 613 S.E.2d 274, 281-283 (N.C. App. 2005).
Willful Misconduct. Liability imposed on parents when child willfully or maliciously injures person or property. N.C.G.S.A. § 1-538.1.
The limit of liability is $2,000.00. Child must be between 10 and 18.
Pure Joint and Several Liability. Joint and Several Liability. N.C.G.S.A. § 1B-2.
Contribution plaintiff for years was entitled to recover from joint tortfeasor the amount of a reasonable settlement which is in excess of his pro-rata share of liability in a third-party action or as a separate action. N.C.G.S.A. § 1B-2; Chamock v. Taylor, 26 S.E.2d 911 (N.C. 1943). There was a common law right to contribution, or equitable contribution, pursuant to which one person can obtain reimbursement for a portion of the judgment or liability against him. The extent to which common law contribution is still available is not entirely clear following the passage of the Uniform Right to Contribution Among Joint Tortfeasors Act (“UJTA”). One case argues that there is no longer any common law contribution. Holland v. Edgerton, 355 S.E.2d 514 (N.C. App. 1987) (“The right to contribution is statutory; therefore, it must be enforced according to the terms of the statute.”). North Carolina has passed the Uniform Contribution Among Joint Tortfeasors Act. N.C.G.S.A. § 1B-1(a). It contains several specific statutory provisions regarding the right to contribution, including the recognition of the right. G.S. § 1B-1(a). However, a general contractor usually does not have a contribution claim against a sub-contractor, because they are not tortfeasors toward the owner. A settling tortfeasor has a right of contribution only if he extinguishes the liability of the other tortfeasor. A tortfeasor which settles with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death has not been extinguished nor in respect to any amount paid in a settlement which is in excess of what was reasonable. G.S. § 1B-1(d). One (1) year statute of limitation after judgment or payment. Three (3) years statute of limitations after voluntary dismissal of pending contribution claim. Safety Mut. Cas. Corp. v. Spears, Barnes, Baker, Wainio, Brown & Whaley, 409 S.E.2d 736 (N.C. App. 1991).
Suspension of Drivers' Licenses
Administrative Suspension: Within 60 days after receiving the report, the Commissioner will suspend the license of each operator and owner for failure to deposit security. N.C.G.S.A. § 20-279.5. Suspension will remain for one (1) year, provided no action for damages is filed. N.C.G.S.A. § 20-279.7.
Judgment: Upon receipt of a judgment which has remained unpaid for 60 days, the Commissioner will suspend the license of the judgment debtor. N.C.G.S.A. § 20-279.13. License suspension will continue until the judgment is stayed, satisfied, made subject to an installment agreement, is barred from enforcement by the statute of limitations, or is discharged in bankruptcy. N.C.G.S.A. § 20-279.14.
Contact Information: State of North Carolina, Division of Motor Vehicles, Driver License Services, 3114 Mail Service Center, Raleigh, NC 27699-3114, (919) 861-3099, https://www.ncdot.gov/dmv/.
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. N.C. Gen. Stat. § 22B-1.
Not applicable to a public utility as an indemnitee, or to contracts entered into by the DOT.
Diminution of Value
First Party: North Carolina courts have essentially found that the measure of damages is the fair market value of the car immediately before the collision and the fair market value after the accident: “where the insurer elects to repair the damaged automobile and represents, at least tacitly, that it will place the vehicle in the condition that it was in previously, the insured has no choice but to acquiesce, and the original contract of the parties is converted into a new one, under which the insurer is bound to repair the automobile and restore it to its former condition.” Pierce v. American Fidelity Fire Ins. Co., 83 S.E.2d 493 (N.C. 1954).
North Carolina uses a variety of methods to determine diminished value, including the ClaimCoach.com system and the Classic Car Appraisal Service (Don Peterson) methodology, in addition the 17(c) formula mentioned in the introduction to this chart above. North Carolina has actually passed a statute which outlines the procedure for a policyholder to make a first-party diminished value claim. N.C. Gen. Stat. Ann. § 20-279.21(d)(1) provides that, if an insurer’s and policyholder’s estimate of diminished value differs by more than $2,000 or 25% of the vehicle’s fair market retail value, then each party selects an independent appraiser to appraise the loss. If they cannot agree on a number, then a third-party umpire is called to determine the diminished value, whose report is binding on the parties. Though time-consuming, this method avoids the criticism of the 17(c) formula and keeps the parties out of court.
Third Party: The measure of damage for injury to personal property is the difference between the market value of the property immediately before the injury and the market value immediately after the injury. DeLaney v. Henderson-Gilmer Co., 135 S.E. 791 (N.C. 1926). Evidence of the reasonable value of repairs to a damaged vehicle, and the reasonable market value of the vehicle as repaired, are admissible to show the difference in its value before and after it was injured. U. S. Fid. & Guar. Co. v. P. & F. Motor Express, 18 S.E.2d 116 (1942). North Carolina Jury Pattern Instructions provide that, “The plaintiff’s actual property damages are equal to the difference between the fair market value of the property immediately before it was damaged and its fair market value immediately after it was damaged.” If evidence of repair is introduced: “Evidence of [estimates of the cost to repair] (and) [the actual cost of repairing] the damage to the plaintiff’s property may be considered by you in determining the difference in fair market value immediately before and immediately after the damage occurred.” Property Damages–Diminution in Market Value., N.C. Pattern Jury Inst. – Motor Veh. § 106.62.
11 N.C. Admin. Code 4.0421(5) also discusses claims handling and claims settlement practices which constitute unfair claim settlement practices and provides as follows:
(5) If a release or full payment of claim is executed by a third-party claimant, involving a repair to a motor vehicle, it shall not bar the right of the third-party claimant to promptly assert a claim for diminished value, which diminished value was directly caused by the accident and which diminished value could not be determined or known until after the repair or attempted repair of the motor vehicle. Claims asserted within 30 days after repair for diminished value shall be considered promptly asserted.
MWL takes the position that, regardless of the insurance code, the Statute of Limitations for property damage is three (3) years. As of the publication of this chart, there have been no cases on point wherein the court has reduced the three (3) year statute based on the (conflicting) insurance code. However, to be safe, the claim should be made immediately so as to ensure a timely response.
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication. N.C. Gen. Stat. Ann. § 15A-287(a).
Under the North Carolina statute, a criminal defendant will be liable for restitution to the “victim” of their criminal conduct. N.C.G.S.A. § 15A‐834. Additional statutory language qualifies that no third party will be allowed to benefit through restitution—and case law shows that courts have interpreted this to mean that an insurer cannot recover restitution payments. N.C.G.S.A. § 15A‐1343(d); State v. Stanley, 339 S.E.2d 668 (N.C. Ct. App. 1986).
Health and Disability Insurance
Statute of Limitations: 3 Years. N.C.G.S.A. § 1-52(1)-(5); Nelson v. Patrick, 293 S.E.2d 829 (N.C. 1982). Wrongful Death – 2 Years. N.C.G.S.A. § 1-53(4).
Subrogation of Medical and Disability Benefits are not allowed. Does not apply to policies issued and delivered outside of North Carolina. Bush v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 124 F. Supp.3d 642, 657 (E.D. N.C. 2015); 11 N.C.A.C. § 12.0319.
Funeral Procession Traffic Laws
When the lead vehicle has entered an intersection lawfully, the other vehicles may proceed without regard to the traffic signal. Funeral processions have the right-of-way, but they must yield to emergency vehicles or when directed by a police officer. The lead vehicle must be marked with a flashing light, flag or other insignia indicating a funeral procession. Each vehicle in the procession must have its headlights lit and hazard warning lights on. Other vehicles may not attempt to pass or knowingly drive between vehicles in a funeral procession. N.C. Gen. Stat. § 20-157.1.
Statute of Limitations: 3 Years. N.C.G.S.A. § 97-10.2.
Can Carrier Sue Third Party Directly: Yes, joint right after one year, ending 60 days before statute of limitations.
Recovery from UM/UIM Benefits: Yes, for policies after 10/1/99.
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Fully Reimbursed; and (3) Net to Plaintiff. (“Discretionary Reduction”)
Employer Contribution/Negligence: Yes, N.C.G.S.A. § 97-10.2(e).
Attorney’s Fees/Costs: Pro-Rata. Plaintiff Must Apply.
Future Credit: No, must recover in third-party suit.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will only be liable if they intentionally, knowingly, and willfully let their dog violate the “running at large” statute at the time of the incident. N.C. Gen. Stat. Ann. § 67-12, 67-4.4, 67-4.1.
Employee Leasing Laws
Neither North Carolina Workers’ Compensation Act nor case law directly addresses the Exclusive Remedy Rule as applied to employee leasing situations. However, a court has held that a temporary employee could not pursue a third-party action against the employer to whom the worker was assigned. Brown v. Friday Services, Inc., 460 S.E.2d 356 (N.C. App. 1995).
Condominium Waiver of Subrogation Laws
Associations shall maintain property insurance and liability insurance on the common elements. The insurance policy must waive subrogation rights against any unit owner and member of their household. N.C.G.S.A. § 47C-3-113.
Automobile Total Loss Thresholds
Percentage Value is 75%.
Cost for vehicle repair is 75% or more of its fair market value prior to being damaged. Any vehicle totaled by insurance company must have title and registration card marked, “Total Loss Claim.” N.C.G.S.A. § 20-71.3(d).
Sudden Medical Emergencies While Driving
Sudden Incapacitation Defense. By the great weight of authority the operator of a motor vehicle who becomes suddenly stricken by a fainting spell or other sudden and unforeseeable incapacitation, and is, by reason of such unforeseen disability, unable to control the vehicle is not chargeable with negligence. Wallace v. Johnson, 182 S.E.2d 193 (N.C. 1971).
Unconsciousness is not an element of the sudden incapacitation defense in an auto accident case. For example, such extreme pain as to be incapable of controlling the operation of a motor vehicle falls within the sudden incapacitation defense. Word v. Jones ex rel. Moore, 516 S.E.2d 144 (N.C. 1999).
State Sovereign Immunity And Tort Liability
Tort Claims Act: North Carolina Tort Claims Act. N.C.G.S.A. § 143-291 (1951).
Notice Deadlines: Claims against the State must be filed within three years of the accident. If death results, claim must be filed within two years by personal representative of the deceased. N.C.G.S.A. § 143-299.
Claims/Actions Allowed: The Tort Claims Act covers all claims arising as a result of the negligence of any officer, employee, involuntary servant, or agent of the State while acting within the scope of his office, employment, service, agency or authority. N.C.G.S.A. § 143-291.
Comments/Exceptions: Contributory negligence by the claimant bars recovery under the State Tort Claims Act. N.C.G.S.A. § 143-299.1; Oates v. N. Carolina Dep’t of Motor Vehicles, 24 N.C. App. 690, 212 S.E.2d 33 (1975). Intentional acts are not compensable. White v. Trew, 366 N.C. 360, 736 S.E.2d 166 (2013). Claims are brought before the Industrial Commission, reviewable by Superior Court. N.C.G.S.A. § 143-291.
Damage Caps: Claim for Injury and damage to any one person capped at $1,000,000 less any commercial liability insurance purchased by the State that is applicable to the claim. N.C.G.S.A. § 143-299.2.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: “The cost of repairs furnishes the more satisfactory test by which to determine the plaintiff’s damages…” Carolina Power & Light Co. v. Paul, 136 S.E.2d 103 (N.C. 1964).
Intrinsic Value: “…where damage to personal property which has no market value, including documents and drawings,…if plaintiff is entitled to recover at all, it is…actual value of that property immediately before it was damaged less any salvage value…[.] The actual value of any property is the property’s intrinsic value, that is, its value to its owner.” William F. Freeman, Inc. v. Alderman Photo Co., 365 S.E.2d 183 (N.C. Ct. App. 1988) (Court affirmed the trial court’s instruction on actual value).
Sentimental Value: “…the fact finder must not consider any fanciful, irrational or purely emotional value that the specific property may have had.” Shara v. N.C. State University Veterinary Teaching Hosp., 723 S.E.2d 352 (N.C. Ct. App. 2012) (citing N.C.P.I. Civil 810.66 (2015)).
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Local government immune from governmental acts in scope of employment, but not proprietary acts. Data Gen. Corp. v. City of Durham, 545 S.E.2d 243 (N.C. App. 2001).
Public Duty Doctrine: When government protecting public at large – automatically immune. No special relationship.
Notice Deadlines: None. Cities may adopt their own notice requirements. Miller v. City of Charlotte, 219 S.E.2d 62 (N.C. 1975).
Claims/Actions Allowed: Immunity waived if liability insurance purchased, up to limits of policy.
County: N.C.G.S.A. § 153A-435.
Cities: N.C.G.S.A. § 160A-485.
Risk pool considered insurance. If local government has immunity, but settles some claims but not others, may be liable under 42 U.S.C. § 1983 (Dobrowolska Claim).
Comments/Exceptions: Cities with population over 500,000 (only Charlotte) can waive immunity and become subject to the NCTCA.
Proprietary Function: Not traditionally done by government; also performed by private sector; don’t benefit public as whole, charge fee (e.g., golf course, sewer backup due to poor maintenance).
Governmental Function: Performed for public at large; discretionary (e.g., decision to construct sewer).
Damage Caps: Per Person: No Cap. Per Occurrence: $1 Million. Punitive damages not allowed unless authorized by statute. Jackson v. Hous. Auth. of City of High Point, 341 S.E.2d 523 (N.C. 1986)
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Any driver under the age of 18 or anyone with a learner’s permit cannot use a cell phone in any capacity. N.C.G.S.A. § 20-137.3.
No driver may operate a motor vehicle and use a hand-held device to read, send, or type a text message. N.C.G.S.A. § 20-137.4a.
Other Prohibitions: No Applicable Laws.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes illegal aliens. N.C. Gen. Stat. § 97-2-2.
Case Law: Rivera v. Trapp, 519 S.E.2d 777 (N.C. Ct. App. 1999); Ruiz v. Belk Masonry Co., 559 S.E.2d 249 (N.C. Ct. App. 2002); Gayton v. Gage Carolina Metals, Inc., 560 S.E.2d 870 (N.C. Ct. App. 2002).
Comments/Explanation/Other: Rivera held the statute included illegal aliens and the claimant is entitled to benefits. Ruiz held that the workers’ compensation statute did not exclude illegal aliens so he was entitled to benefits and that federal law does not prevent an illegal alien from falling under the workers’ compensation law.
*According to Gayton disability benefits are payable if the illegal alien cannot work due to his or her injuries. But, if the status of the illegal alien keeps them from working, then disability benefits are not payable.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. McGrady, COA13-330, 2014 WL 211962 (N.C. Ct. App. Jan. 21, 2014); State v. Goode, 461 S.E.2d 631 (N.C. 1995).
Comments: Daubert rejected until 2014. In Goode, court held that the standard depends on reliability, qualifications of expert, and relevancy. However, in McGrady, the Supreme Court finally adopted Daubert.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Negligence of driver is not imputable to passenger having no control. Williams v. Seaboard Air Line Ry. Co., 121 S.E. 608 (N.C. 1924).
Where husband and wife were joint owners of vehicle being driven by husband with wife’s consent for a common purpose, they were engaged in a joint enterprise and the husband’s contributory negligence was properly imputed to the wife’s third-party claim. Husband present in vehicle with right to control details of its use. Etheridge v. Norfolk Southern Ry. Co., 7 N.C. App. 140, 171 S.E.2d 459 (1970).
To avoid imputed contributory negligence of driver, the owner must show a bailment by which owner relinquished control of vehicle and the right to control the details of its use. Id.
Owner-occupier doctrine holds that when owner is also occupant of vehicle, owner is presumed to have right to control and direct its operation, and negligence of driver is imputed to owner. Monk v. Cowan Transp., 468 S.E.2d 407 (N.C. 1996).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
The Family Purpose Doctrine prevails in North Carolina. The Family Purpose Doctrine imposes liability upon the owner or person in ultimate control of a motor vehicle for its negligent operation by another when (1) the operator was a member of his family or household and was living in his home; (2) the vehicle was owned, provided, and [or] maintained for the general use, pleasure, and convenience of his family; and (3) at the vehicle was being so used by a member of his family at the time of the accident with his express or implied consent. Williams v. Wachovia Bank & Trust Co., 233 S.E.2d 589 (N.C. 1977).
Sponsor Liability for Minor’s Driving: No Sponsorship Liability Statute.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury. N.C.G.S.A. § 1-52(1). Wrongful death is 2 years. N.C.G.S.A. § 1-53(4). It is 4 years for Uniform Commercial Code and Unfair and Deceptive Trade Practices. N.C.G.S.A. § 25-2-725(1). Statute of Repose is 12 years. N.C.G.S.A. § 1-46.1(1).
Liability Standards: Negligence, Warranty
Fault Allocations: Pure Contributory. N.D.C.C. § 32-03.2-02.
Non-Economic Caps/Limits On Actual Damages: Yes (Paid/Incurred Medical Expenses).
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No. Never adopted strict liability or Restatement (Second) of Torts § 402A (1965).
Innocent Seller Statute: Yes. N.C.G.S.A. § 99B-2(a).
Joint and Several Liability: Yes. N.C.G.S.A§ 1B-2.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Presumption; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 3rd
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N.C.G.S.A. ֻ§ 20-163.
Common Law Rule: The owner may not be held liable for the negligent operation of a vehicle by a thief, merely because the owner left the keys in the car after parking it in a lawful manner. Williams v. Mickens, 100 S.E.2d 511 (N.C. 1957); Spurlock v. Alexander, 468 S.E.2d 499 (N.C. Ct. App. 1996) (additionally holding that violation of N.C.G.S.A. § 20-163 did not establish negligence per se).
The Anti-Subrogation Rule has yet to be determined.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: 11 N.C.A.C. § 4.0425 to 4.0427; N.C.G.S.A. § 58-36-95.
Summary: Only those non-OEM parts that are identical in quality and functionality with their OEM counterpart may be required to be used by an insurer. If an insurer is going to require the use of non-OEM parts, the insured’s policy must contain this information in a format and size in line with the statute. Lastly, the written estimate must include a statement disclosing the use of non-OEM parts and their likeness to the equivalent OEM parts.