Are servers liable in drunk driving accident?
George Olsen Sr., and his wife, Sharon N. Olsen, had personal automobile underinsured motorists coverage with Nationwide Property and Casualty Insurance Company.
In late 2013, George Olsen was walking by the side of the road when he was struck by a car driven by Skylar Wellington, who had lost control of her vehicle and drifted off the paved portion of the street. About three hours after the accident, Wellington’s blood alcohol concentration was tested and registered a level of 0.15.
In 2014 the Olsens filed suit against Wellington and Nationwide. Nationwide filed a third-party complaint against Timothy W. Smith and Timothy R. Smith, alleging that the Smiths had negligently served Wellington alcohol and allowed her to drive. Nationwide sought contribution from the Smiths for a portion of their alleged common liability for Olsen’s injuries.
Wellington’s auto liability carrier offered the full limit of its coverage to the Olsens in exchange for their execution of a covenant not to enforce judgment. Wellington’s liability carrier was thus released from further liability and was not obligated to participate in the lawsuit.
The Olsens then negotiated a settlement with Nationwide for $850,000. After the settlement the Olsens signed a release of all claims and filed a voluntary dismissal of their complaint with prejudice. Accordingly, the only remaining issue in the case was Nationwide’s third-party complaint against the Smiths, who had allegedly served Wellington alcohol shortly before the accident. The Smiths moved to dismiss Nationwide’s complaint for contribution. The court granted the Smiths’ motion based on failure to state a claim on which relief could be granted. Nationwide appealed.
On appeal, Nationwide argued that the trial court improperly granted the Smiths’ motion to dismiss Nationwide’s claim for contribution, contending that it had a cause of action to seek contribution from the Smiths for their role in causing its insured’s injuries.
Nationwide asserted that it had the right to recover from the Smiths because Wellington and the Smiths had a common liability for the injury to the Olsens. The Smiths contended that Nationwide had no right to assert a claim based on contribution because a claim for contribution is available only among joint tortfeasors and Nationwide, as the Olsens’ insurer, was not a tortfeasor.
Citing previous decisions, the court stated that the right of a plaintiff’s underinsured motorists insurer to bring claims does not extend to a right to seek contribution against other tortfeasors who may have contributed to causing the accident. Nationwide, as the underinsured carrier, had no right to assert a claim against the Smiths for contribution because its insureds—the Olsens—never had any right to assert such a claim.
The ruling of the trial court was affirmed.
Nationwide Property and Casualty Insurance Company vs. Smith-Court of Appeals of North Carolina-November 21, 2017-No. COA17-283.
