NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff, v. KELLY DOUGLAS
and JERRY FOGLEMAN, Defendants
No. COA01-52
(Filed 28 December 2001)
1. Abatement_declaratory judgment _no insurance coverage as a
matter of law_judgment in second action affirmed
The trial court correctly granted judgment on the pleadings
for plaintiff in a declaratory judgment action in Wake County
where defendant had filed an action seeking adjudication of the
same issues three and one-half hours earlier in Carteret County.
Plaintiff's policy, as a matter of law, excludes coverage for
defendant's injuries and the pleadings filed in Wake County would
as a matter of law yield the same result at either venue.
Although it ran contrary to the general rule of abatement, the
court's ruling nonetheless served the notions of judicial economy
upon which the abatement doctrine was founded.
2. Insurance_homeowners_personal liability_secret videotaping--
intentional act_exclusion from coverage
A homeowners insurance policy which excluded coverage for
any injury “which is intended by or which may reasonably be
expected to result from the intentional acts or omissions or
ciminal acts or omissions” of the insured did not provide
coverage for intentional infliction of emotional distress and
intentional invasion of privacy arising from the insured's secret
videotapyin of a female in the bathroom of the insured's home
because the insured's intentional act of secretly videotapying
occupants of this bathroom was sufficiently certain to cause
injury that the insured should have reasonably expected such
injury to occur.
Appeal by defendant Kelly Douglas from judgment entered 18
October 2000 by Judge Abraham Penn Jones in Superior Court, Wake
County. Heard in the Court of Appeals 17 October 2001.
Bailey & Dixon, L.L.P., by Gary S. Parsons and A. John
Hoomani, for plaintiff.
Harrison, North, Cooke & Landreth, by A. Wayland Cooke, and
Bennett, Beswick, McConkey & Marquardt, L.L.P., by George W.
Beswick, for defendant-appellant Kelly Douglas.
WYNN, Judge.
Kelly Douglas appeals from the entry of judgment on thepleadings favoring Nationwide Mutual Insurance Company. We
affirm.
The underlying facts show that while Kelly Douglas stayed at
a home owned by Jerry Fogleman and insured by Nationwide Insurance,
Fogleman secretly videotaped her in the bathroom. Following
Fogleman's conviction under the secret peeping statute, N.C. Gen.
Stat. § 14-202 (1999), Douglas brought a civil action against him
alleging intentional infliction of emotional distress and invasion
of privacy (98 CVS 386). Nationwide Insurance defended Fogleman
under a reservation of rights, and a jury awarded Douglas
compensatory damages in the amount of $33,000.00 and punitive
damages in the amount of $50,000.00.
On 30 December 1999, Nationwide Insurance brought a
declaratory judgment action in Superior Court, Wake County, seeking
relief from any obligation to indemnify Fogleman on the judgment
against him. Subsequently, Superior Court Judge A. Leon Stanback,
Jr., ordered a change of venue to Carteret County. On 20 June
2000, Nationwide Insurance voluntarily dismissed that action
without prejudice under N.C. Gen. Stat. § 1A-1, Rule 41 (1999).
Three days later at 12:54 p.m., Douglas filed a declaratory
judgment action in Superior Court, Carteret County seeking an
adjudication on the same issues under the action previously
dismissed by Nationwide Insurance. About three and one-half hours
later, Nationwide Insurance refiled its declaratory judgment action
in Superior Court, Wake County.
Notwithstanding notice of the pending action in Carteret
County, Superior Court Judge Abraham Penn Jones entered judgment in
the Wake County action (1) denying Douglas's motion to dismissbased on the pending action in Carteret County, (2) denying
Douglas's alternative motion for change of venue to Carteret
County, and (3) granting Nationwide Insurance's Rule 12(c) motion
for judgment on the pleadings. We uphold the trial court's
judgment.
[1]Douglas argues that the trial court should have dismissed
Nationwide Insurance's action in Wake County because she had filed
an action about three and one-half hours earlier in Carteret County
(00 CVS 726). “Under the law of this state, where a prior action
is pending between the same parties for the same subject matter in
a court within the state having like jurisdiction, the prior action
serves to abate the subsequent action.” Eways v. Governor's
Island, 326 N.C. 552, 558, 391 S.E.2d 182, 185 (1990) (citing
McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860
(1952); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952)).
See State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 496
S.E.2d 585 (1998). Douglas's motion to dismiss presents
essentially the same questions as the outmoded plea of abatement,
and was properly raised in her responsive pleading. See Brooks v.
Brooks, 107 N.C. App. 44, 47, 418 S.E.2d 534, 536 (1992) (“[a] plea
in abatement based on a prior pending action . . . is a preliminary
motion of the type enumerated in Rule 12(b)(2)-(5) and the time for
filing such motion is governed by that rule”); Lehrer v.
Manufacturing Co., 13 N.C. App. 412, 185 S.E.2d 727 (1972).
However, in Mercer, this Court recognized that the plea ofabatement doctrine serves the purpose of avoiding
a subsequent
action which is “wholly unnecessary and therefore, in the interest
of judicial economy, should be subject to a plea in abatement.”
128 N.C. App. at 375, 496 S.E.2d at 587. In this matter, in light
of our recent decision in N.C. Farm Bureau Mut. Ins. Co. v. Allen,
__ N.C. App. __, 553 S.E.2d 420 (2001), judgment on the pleadings
in favor of Nationwide Insurance would be warranted regardless of
whether we allow the Wake County judgment to stand or remand this
matter on the basis of the plea of abatement doctrine to be decided
in Carteret County. Remanding this matter for abatement of the
Wake County action in deference to the Carteret County action would
therefore offend the purpose behind the abatement doctrine. Thus,
in the interest of judicial economy, we discern no reason to make
a technical application of the plea of abatement doctrine to this
case since the result under Allen would be the same in either
county.
[2]In Allen, this Court construed an exclusionary provision
substantially the same as the language at issue in the instant
case. In that case, the homeowner's insurance policy excluded
personal liability and medical payments coverage for bodily injury
“which is expected or intended by the insured.” Id. at __, 553
S.E.2d at 421. Similarly, in the case at bar, Nationwide
Insurance's policy excludes insurance coverage for any injury
“[w]hich is intended by or which may reasonably be expected to
result from the intentional acts or omissions or criminal acts or
omissions of” the insured. As in Allen, the question before us iswhether, as a matter of law, the injuries suffered by Douglas
were
intended or may reasonably have been expected by Fogleman, such
that coverage for those injuries is barred under Nationwide
Insurance's policy. We conclude that the policy, as a matter of
law, excludes coverage for Douglas's injuries, as Fogleman's
intentional act of concealing a video camera in his bathroom and
filming its occupants was sufficiently certain to cause injury that
Fogleman should have reasonably expected such injury to occur.
(See footnote 1)
See Allen, __ N.C. App. at __, 553 S.E.2d at 424.
In light of this Court's decision in Allen, the pleadings in
the matter filed in Wake County being the same as those filed in
Carteret County would as a matter of law yield the same result at
either venue: judgment in favor of Nationwide Insurance. Thus, we
conclude that the trial court's failure to abate the action in Wake
County in favor of the prior filed action in Carteret County,
although it ran contrary to the general rule of abatement,
nonetheless served the hoary notions of judicial economy upon which
the abatement doctrine is founded by effectively avoiding a
multiplicity of actions, excess delay and duplicitous costs. See
Mercer, 128 N.C. App. at 375, 496 S.E.2d at 587.
The trial court's 18 October 2000 judgment on the pleadings
for plaintiff is therefore,
Affirmed. Judges McCULLOUGH and BRYANT concur.
Footnote: 1
