Anderson v. Gooding

259 S.E.2d 398 (1979)

43 N.C. App. 611

Billy Ray ANDERSON v. E. L. GOODING, Executor of Will of Elizabeth Gooding Hardy, J. W. Brewer, and Great American Insurance Company.

No. 793SC57.

Court of Appeals of North Carolina.

November 6, 1979.

*399 Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Robert W. Sumner, Raleigh, White, Allen, Hooten, Hodges & Hines by John R. Hooten, Kinston, for defendants-appellants.

James, Hite, Cavendish & Blount by Robert D. Rouse III, Greenville, for plaintiff-appellee.

HILL, Judge.

Did the judge err in allowing the plaintiff's motion for partial summary judgment? We hold that he did under the prevailing statute.

G.S. 28A-19-3(a) provides in clear and unambiguous terms that all claims arising before the death of the decedent with specific exceptions which are not presented to the personal representative or collector pursuant to G.S. 28A-19-1 within six months after the day of the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent. (Emphasis added.)

The 1977 amendments to G.S. 28A-14-3 do not apply, for such amendments are limited to matters beginning 1 September 1977. See Sections 5 and 6, Chapter 446 of the North Carolina Session Laws. The decedent died 25 March 1977. Hence, there was no need for the executor to give notice of disallowance of claim to the claimant by registered or certified mail as provided in the 1977 amendment above.

It is a well settled rule that G.S. 28A-19-3(a) is a statute of limitations which must be complied with by creditors of *400 an estate. Mallard v. Patterson, 108 N.C. 255, 13 S.E. 93 (1890); Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1888).

The court has no discretion in considering whether a claim is barred by the statute of limitations. It is equally clear that the statute of limitations operates to vest a party with the right to rely on the statute of limitations as a defense, and a judge may not interfere with the vested rights of parties when pleadings are concerned. Congleton v. City of Asheboro, 8 N.C.App. 571, 174 S.E.2d 870 (1970).

Plaintiff contends that J. W. Brewer made certain representations to him which led him to believe that his claim would be paid, and as a result thereof, it was not necessary for him to present his claim to Mr. Gooding, as executor of the estate; that the estate is estopped to deny the claim.

Insurance companies and their agents like Mr. Brewer do not act as agents for the insured when settling claims. An insurance company, if it admits that its insured is liable, without its insured's knowledge or consent, is acting in its own interest, and not as the agent of the insured. Lampley v. Bell, 250 N.C. 713, 110 S.E.2d 316 (1959); Foremost Dairies, Inc. v. Campbell Coal Company, 57 Ga.App. 500, 196 S.E. 279 (1938).

The trial court should have granted summary judgment against the plaintiff since the record shows that this civil action is barred as a matter of law by the provisions of G.S. 28A-19-3(a).

This Court does not decide the merits of any claim by the plaintiff against J. W. Brewer and Great American Insurance Company.

For the reasons set out above, the decision of the trial court is

Reversed and remanded to the trial court with instructions that summary judgment be entered against the plaintiff in favor of the defendant estate.

Reversed and Remanded.

ERWIN, J., concurs.

VAUGHN, J., dissents.

VAUGHN, Judge, dissenting:

I would hold that plaintiff is entitled to attempt to prove his claim and recover an amount not in excess of that available under the policy of liability insurance issued by Great American Insurance Company.