Failure to Serve Correct Defendant and Vicarious Liability in Car Accident in North Carolina

A recent North Carolina car crash case arose from a car accident in 2012, involving the plaintiff and the defendants’ cars. The car driven by one defendant was owned by another person, and the only allegation of negligence in the complaint was based on vicarious liability. The investigating officer prepared an accident report that listed the defendant driver’s address, but it didn’t indicate whether the defendant driver had a suffix in his name.

The plaintiff sued, claiming negligence by the defendant driver and alleging that this caused her injuries. The complaint also alleged another defendant owned a car driven by the defendant at the time of the accident. The complaint alleged the correct owner of the car and stated she was also liable to the plaintiff for her injuries. The court issued a summons.

The plaintiff filed an affidavit of service, claiming that service had been completed by mailing a complaint and civil summons to the defendant driver at his address by certified mail with a return receipt requested. Someone had printed the name “Phillip Park Ja” or “Phillip Parker Jr.” on the form.

The defendant driver asked for an extension of time to serve an answer. This motion was granted. He served his motion and claimed there was insufficient service of process and the statute of limitations operated as a defense. The plaintiff served discovery on him. The defendant responded by asking for a time extension, and the court agreed. The plaintiff asked the clerk to issue an alias and pluries summons to the defendant driver.

The defendant driver’s father (who had the same name as the defendant with a different suffix) executed an affidavit that stated he was the father of the defendant driver, and at the time of the accident, the son was living alone at a particular address, which was not the address the plaintiff had served. He attested to the son not living with him at any time since the date of the accident or on the date of service. He signed for the package because it seemed to be addressed to him, but he wasn’t authorized to accept documents on behalf of his son.

The defendant signed and executed a similar affidavit. The defendant filed a motion for summary judgment that was based on lack of personal jurisdiction and the statute of limitations. His and his father’s affidavits were attached to the motion.

The case came before the judge, who granted the summary judgment motion and also dismissed the lawsuit as to the defendant who’d been named because she was the owner of the car and, according to the plaintiff, was vicariously liable.

The plaintiff appealed. She claimed there was an unbroken chain of summonses to the defendants and enough factual issues that the case should be sent back for trial. The appellate court disagreed. It explained that the complaint and summons had to be delivered to the proper person for service under N.C. Gen. Stat. § 1A-1, Rule 4(a) (2015). Under Rule 4(j) of the N.C. Rules of Civil Procedure, service under certified mail could be accomplished by mailing a summons copy and the complaint by registered or certified mail, return receipt requested.

The reason for the service requirement was to give notice to the party against whom the proceeding was commenced and permit them the chance to answer. When there is service of process on somebody who isn’t authorized to be served, there is no jurisdiction over the person who was supposed to be served. When a defendant’s not served in the proper time, the plaintiff can get an endorsement on the original summons for an extension of time or may sue on an alias or pluries summons. But the validity of the alias or pluries summons depends on whether the original summons was valid.

In this case, the summons and complaint were served on the defendant’s father, and his name was listed on the summons. The alias and pluries summons listed the same name and same address. It was identical to the earlier summons. The summonses were never directed to the correct defendant and didn’t relate back. The plaintiff’s lawsuit was therefore barred by the statute of limitations.

Since the allegations against the car owner were based totally on vicarious liability principles, the appellate court affirmed that dismissal as well.

If you have been harmed due to the wrongful conduct or negligence of another party, the experienced Charlotte car accident attorneys at Maurer Law may be able to help you recover compensation. We represent clients in the Charlotte, NC metro area and also Greensboro, NC and Winston-Salem, NC. Contact us at 888-258-1087 or via our online form.

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Vicarious Liability in a North Carolina Trucking Accident

Intervening Negligence by a Plaintiff Motorcyclist in North Carolina

Wrongful Death and Contributory Negligence in North Carolina

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