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More On Last COA Drop

By Sean E. Andrussier

As Sean noted below, the next COA drop date is not for another 12 days. In the interim, some more about the cases from the last COA drop in December:

Baker v. Lanier Marine Liquidators, Inc.:

In Baker, the COA held that the trial court had personal jurisdiction over a Georgia defendant in a case brought by an NC consumer. The defendant had pretty minimal contacts with the plaintiff: Plaintiff contacted defendant in GA about buying a boat. At a later point, defendant called the plaintiff in NC about an available boat and referred the plaintiff to the defendant's website. The plaintiff went to the site and bought the boat using a debit card and wiring money to GA. The defendant then arranged for an independent contractor to ship plaintiff the boat. This was enough to snag the defendant under NC's long arm statute and to comport with due process, the COA held.

Important, though, seemed to be the fact that the plaintiff was an individual NC consumer and that the defendant was a foreign business that sent the plaintiff a boat that sank when put in water. The COA emphasized that NC has a "manifest interest" in providing a convenient forum to its residents for redressing injuries inflicted by out-of-state actors.

21st Mortgage Corporation v. Douglas Home Center, Inc.:

In this short procedural case, the COA reminded counsel that if you want to rely on pleadings in the context of a summary judgment motion, those pleadings must be verified. In 21st Mortgage, because an affirmative defense that was the subject of a pending motion to amend was not verified (the original answer and defenses were verified) but was relied on by the trial court in granting summary judgment, the COA reversed.

Curl v. American Multimedia, Inc.:

In Curl, the COA reviewed a partial summary judgment order, holding that the order became final (i.e., no longer an interlocutory order) once the plaintiffs voluntarily dismissed their remaining claims.

The COA then refused to "recognize in toxic contamination cases [such as this well contamination case] at least three new causes of action": 1) infliction of loss of chance of continued health, 2) invasion of autonomy/the right not to be compelled to undergo heightened medical monitoring, and 3) the instilling of fear of deadly disease. The COA held that none of the claims was pled in plaintiffs' complaint, but that even if they had been, they present "complex policy questions" and are for the legislature, not the court, to institute.

The COA also refused to "create" the "type of damages urged by Plaintiffs" for costs for medical monitoring, stating that that, too, was a legislative issue. It appears, though, that medical monitoring damages have been granted in the past in NC (see mention of same in the context of a property suit in Smith v. State Farm, 109 N.C. App. 77 (1993)). The COA also stated that the plaintiffs' cases supporting such damages required a present injury. There is case law elsewhere allowing for medical monitoring damages in the absence of present injury (see, e.g., Merry v. Westinghouse, 684 F. Supp. 847 (M.D. Pa. 1988) -- a well contamination case brought by property owners, just like Curl), but Curl indicates that without legislative action, that outcome likely won't happen anytime soon in NC.

Full post as published by North Carolina Appellate Blog on January 03, 2008 (boomark / email).