North Carolina Lawyers Weekly
When Judge Louis Trosch allowed plaintiff to amend its complaint under N.C. R. Civ. P. 15(a) to add claims for bad faith and unfair trade practices, the new claim did not “automatically” relate back to the filing date of the complaint under Rule 15(c). In Rule 15(c), a subordinate clause begins with the word “unless,” which limits the universe of scenarios where an amendment will relate back. An amendment cannot “automatically” relate back when there are scenarios under which the amendment does not relate back. Furthermore, this court has identified circumstances where an amendment does not relate back to the original complaint, including where, as in this case, the original complaint did not include the specialized pleading requirements for the newly added claims.
We affirm Judge Eric Levinson’s grant of defendant’s motion for partial summary judgment and judgment on the jury verdict for defendant. We dismiss the issue of the jury instruction as to “occurrence” as inadequately briefed.
Where Judge Trosch did not rule on whether plaintiff’s new claims would relate back to the filing of the complaint, Judge Levinson’s grant of partial summary judgment – ruling that the new claims did not relate back – did not overrule a decision by a fellow superior court judge in violation of the rule set out in Calloway v. Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972).
In any event, because plaintiff encouraged Judge Trosch to grant the motion to amend without resolving all issues related to the validity of the amendment and invited Judge Levinson to consider the issue of relation back at summary judgment, the issue was properly in front of Judge Levinson at the summary judgment hearing. The Calloway rule is inapplicable.
The defendant-insurer’s policy insuring plaintiff’s yacht excluded claims for rot, deterioration and delamination. Judge Levinson agreed to instruct the jury on this exclusion.
Plaintiff sought an instruction on estoppel based on evidence that, after the yacht struck a rock, the insurer’s contractor discovered moisture in the balsa core of the hull but did not inform plaintiff. Three years later, the yacht took on water and sank.
Judge Levinson properly declined to instruct the jury on estoppel. The doctrines of waiver and estoppel are not available to bring within the coverage of a policy risks that are not covered by its terms or risks expressly excluded.
In any event, since the jury concluded in issue “1A” that the loss of the yacht was not caused by an “occurrence” as that term was defined in the insurance policy, the verdict form directed them not to reach a conclusion on any remaining issues. Because the jury did not consider the policy’s rot exclusion (issue “1B”), plaintiff cannot demonstrate that the requested instruction would have resulted in a different outcome.
Affirmed in part; dismissed in part.
D&B Marine, LLC v. AIG Property Casualty Co. (Lawyers Weekly No. 011-036-23, 26 pp.) (Allison Riggs, J.) Appealed from Mecklenburg County Superior Court (Eric Levinson, J.) Vernon Sumwalt, Robert Killeen and Robert Stern for plaintiff; Steven Bader, Roger Warin and John O’Connor for defendant. N.C. App.
