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Selective Insurance Co. v. Mid-Carolina Insulation Co.5/6/1997
Plaintiff Selective Insurance Company issued to defendant Mid-Carolina Insulation Company a business automobile liability insurance policy effective 19 December 1990 through 18 December 1991, in which Mid-Carolina is designated as the "named insured." On 3 August 1991 defendant Richard Boggs was employed by Mid-Carolina and was acting in the course and scope of his employment when he was struck and injured by a vehicle owned by Mid-Carolina. The vehicle was being driven by defendant Joseph Thomas, Jr., who was not an employee of Mid-Carolina, but had permission to drive the vehicle.
At the time of the accident, Mid-Carolina had separate workers' compensation insurance coverage, and Boggs filed for and received workers' compensation benefits. Later on Boggs filed a negligence action against defendant Thomas seeking to recover damages for his injuries. Prior to Disposition of the negligence case, Selective filed a complaint for declaratory relief to determine whether it had any contractual obligation to defend or indemnify Thomas as an "additional insured" under the liability policy in the negligence suit. At issue was the effect, if any, of an employee exclusion clause in the policy.
Entry of default was entered against Boggs and Thomas for failure to answer the complaint for declaratory relief. The entry of default against Boggs was set aside, but the entry of default against Thomas was not. Both Mid-Carolina and Boggs filed answers to the complaint, requesting the court to rule that Selective had a duty to defend Thomas under the terms of the policy, and to indemnify Thomas for any judgment obtained against him by Boggs.
On 14 August 1995 Selective filed a motion for summary judgment. Subsequently, Richard Boggs died, and on 29 January 1996 the trial court substituted his widow and administratrix of his estate, Althea Thomas Boggs, as a defendant. On 12 February 1996, the trial court granted summary judgment to Selective, finding that plaintiff is entitled to judgment as a matter of law. The trial court further ordered that the insurance policy in question affords no coverage for the claims of defendant Boggs in the negligence case, and "consequently, Plaintiff Selective Insurance Company has no duty to defend or indemnify Defendant Thomas in that action." Boggs filed a timely appeal of the order, but neither Mid-Carolina nor Thomas appealed.
ARNOLD, Chief Judge.
Defendant Althea Boggs argues that the trial court erred in granting summary judgment in favor of Selective Insurance Company and finding that Selective has no duty to defend or indemnify Joseph Thomas. We decline to address this case on the merits, however, because the appeal must be dismissed for lack of jurisdiction. "This Court may raise the question of subject matter jurisdiction on its own motion, even if it was not argued by the parties in their briefs." Ramsey v. Interstate Insurors, Inc., 89 N.C. App. 98, 102, 365 S.E.2d 172, 175, disc. review denied, 322 N.C. 607, 370 S.E.2d 248 (1988).
Only a "party aggrieved" has a right to appeal. N.C. Gen. Stat. ยง 1-271 (1996). A "party aggrieved" is one whose legal rights have been denied or directly and injuriously affected by the action of the trial court. See In re Applications for Reassignment, 247 N.C. 413, 421, 101 S.E.2d 359, 366 (1958); Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434 (1939); see also U.S. Fidelity and Guaranty Co. v. Scott, 124 N.C. App. 224, 226, 476 S.E.2d 404, 406 (1996) (holding that a party does not automatically qualify as a "real party in interest" merely because it has been named as a defendant in a declaratory judgment action); Insurance Co. v. Walker, 33 N.C. App. 15, 234 S.E.2d 206, disc. review
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