North Carolina Appeals Court Holds that Failure to Name Deceased Trucker’s Estate Was Fatal to Injured Motorist’s Negligence Claim – Boling v. Greer

truck on highway

When a professional truck driver’s negligence causes a collision, the motorist (or a passenger) in the other vehicle may file a negligence action directly against the trucker. Unless the trucker was an owner-operator, a wise plaintiff will also name the truck driver’s employer in most instances.

This is because the trucking company is vicariously liable for the torts of its employee, and, in many instances, the trucking company has much “deeper pockets” (i.e., more assets and higher liability insurance limits).

Of course, in order for there to be liability against the trucking company on a vicarious liability theory, the plaintiff must first prove that the trucker was negligent. The first step to doing this is to file a timely complaint against the trucker and the trucking company.

Facts of the Case

In the recent (unreported) case of Boling v. Greer, the plaintiff was a man who filed suit against the defendants, a truck driver and the trucking company who employed him, seeking compensation for injuries sustained in a truck accident that occurred on June 8, 2011. Although the truck driver died in the accident, the plaintiff’s complaint named him, rather than his estate, as a defendant. The defendants moved for summary judgment on the basis that the deceased trucker was an improper party and that his estate should have been named instead.

Since the statute of limitations had run, it was too late for the plaintiff to amend his complaint to include the estate. Since the plaintiff had not filed a timely claim against the trucker’s estate, the trucking company reasoned that no vicarious liability could lie against it. The Iredell County Superior Court agreed and granted the defendants’ motion for summary judgment. The plaintiff appealed.

The Court of Appeals of North Carolina

The court affirmed, finding no error in the trial court’s order granting summary judgment to the defendants. The plaintiff’s primary contention on appeal was that the trial court should not have allowed the “untimely” affidavit of the deceased trucker’s widow, stating that she was the administrator of her husband’s estate. According to the plaintiff’s argument, the trial court should not have admitted the widow’s affidavit because it was not served along with the motion for summary judgment. Instead, the plaintiff sought to rely upon a record from a county clerk of court showing that no estate had been opened in the county in which the trucker had lived.

The appellate court found that, since the widow’s affidavit had been served upon the plaintiff at least two business days prior to the summary judgment hearing, it was within the province of the trial court to admit it pursuant to North Carolina Rules of Civil Procedure 6(b) and 6(d).

While the result in this case is harsh, since the plaintiff will not be able to recover compensation for his injuries unless the state supreme court reverses the intermediate court’s ruling, there is always a risk when an injured person waits until just before the expiration of the statute of limitations to file suit. Had the plaintiff filed his lawsuit sooner, there is a strong likelihood that he would have discovered the error that, unfortunately, became fatal to the claim he filed just four days prior to the expiration of the statute of limitations.

Get Started on Your Truck Accident Lawsuit

To speak with an experienced Raleigh truck accident lawyer about your truck accident case, call Nagle & Associates today at (800) 411-1583. We represent clients throughout Wake County, Raleigh, and elsewhere in North Carolina. There is no charge for the consultation, and most cases are accepted on a contingency fee basis so that legal fees are not collected unless and until your case is successfully resolved.

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