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North Carolina Court of Appeals Holds that Admission of Affidavit in Support of Motion for Summary Judgment Served to Plaintiff at Least two Business Days Prior to Hearing was not Abuse of Discretion

August 16, 2016

Boling v. Greer and Estes Express Lines, Inc., No. COA15—681, 2016 WL 4367256 (N.C. App. Aug. 16, 2016)


This case arose out of a motor vehicle accident in which a vehicle operated by Plaintiff collided with a tractor-trailer owned by the Defendant trucking company and operated by its employee driver. The employee driver sustained fatal injuries and died on the day of the accident. Nearly three years after the accident (four days before the expiration of the three-year statute of limitations for claims based on negligence), Plaintiff filed a personal injury suit against the trucking company and its employee driver. The summons and complaint named the employee driver as a Defendant, along with the trucking company, which Plaintiff sought to hold vicariously liable for the employee’s negligence. 

Approximately three months after suit was filed, Defendants moved for summary judgment, asserting that the complaint improperly named the deceased employee driver (rather than the decedent’s estate) and that it was too late to amend and serve the complaint upon the estate, because the three-year statute of limitations had expired. Three business days before the hearing on the motion for summary judgment, Defendants served an affidavit from the employee driver’s widow in support of summary judgment. Plaintiff objected to the affidavit, arguing that it was not served upon Plaintiff contemporaneously with the motion for summary judgment. The trial court overruled the objection and granted summary judgment in favor of Defendants.


Plaintiff’s appeal presented two issues: 1) Did the trial court abuse its discretion by admitting the affidavit of the employee driver’s widow; and 2) Is summary judgment for an employee based upon the statute of limitations a judgment on the merits that precludes an employer’s vicarious liability.


The North Carolina Court of Appeals affirmed the trial court’s order of summary judgment on behalf of Defendants. The Court of Appeals held that the trial court did not abuse its discretion by admitting the affidavit, as the affidavit was served at least two business days before the hearing. The Court also reaffirmed earlier North Carolina Supreme Court precedent that the entry of summary judgment in favor of an employee precludes a plaintiff’s vicarious liability claim against the employer.


The Court reviewed Rule 6(d) of the North Carolina Rules of Civil Procedure, which provides that “[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion.” The Court also reviewed the Court’s prior holdings, which indicate that the trial court has discretion to allow the late filing of affidavits. The Court noted that Plaintiff’s counsel acknowledged receiving the affidavit in advance of the hearing, Plaintiff did not ask for a continuance, and Plaintiff did not allege that he was prejudiced by the trial court’s decision. Moreover, Plaintiff failed to demonstrate that the trial court would have reached a different decision had it not admitted the affidavit, as is required on appeal. The Court noted that Plaintiff introduced documents during the summary judgment hearing that established several facts contained in the affidavit. The Court further held that based upon the statute of limitations period, it was already too late for the Plaintiff to correct the service error.

The Court also reviewed the holdings of the North Carolina Supreme Court to determine whether summary judgment on Plaintiff’s vicarious liability claim was proper. Based upon the standard of review on appeal from summary judgment, the Court reviewed the trial court’s decision de novo. The Court held that the facts of the instant case were consistent with previous North Carolina Supreme Court holdings, and a judgment on the merits in favor of the employee precludes a vicarious liability action against the employer. Here, because the trial court ordered summary judgment in favor of the employee driver, Plaintiff could not maintain a claim against the trucking company, and no genuine issues of material fact remained. Thus, summary judgment was also proper for the trucking company.


The North Carolina Court of Appeal’s decision reaffirms that a party asserting error on appeal must show from the record both error on the part of the trial court, as well as resulting prejudice. 

The Court’s holding follows previous North Carolina precedent that summary judgment in favor of an employee will prevent a plaintiff from maintaining a claim against an employer where liability is solely vicarious.