Volume 114 — North Carolina Court of Appeals Reports

<p>Mortgages and Deeds of Trust § 104 (NCI4th)— foreclosure sale — higher bid mistakenly entered — purchaser bound by mistake</p> <p>The trial court did not err in refusing to relieve the mortgagee of its bid at a foreclosure sale where the trustee mistakenly entered a higher bid than the mortgagee authorized, but the debtors were justified in believing that the mortgagee had conferred upon the trustee the power to bind it to the higher bid; the trustee acted within the scope of his apparent authority as the mortgagee’s agent; and the mortgagee was bound on the resulting contract despite the alleged mistaken bid because the mistake was not mutual and was in no way contributed to by the debtors.</p> <p>Am Jur 2d, Mortgages §§ 702 et seq., 727 et seq.</p>

Estoppel § 20 (NCI4th); Principal and Agent § 50 (NCI4th) — measles vaccination administered by County Health Department — clinic set up on university campus — no reliance on university for health care — no agency by estoppel The Industrial Commission properly declined to apply the doctrine of apparent agency, or agency by estoppel, in this action where plaintiff, a student at NCSU, sought to recover for injuries he sustained after being administered a measles vaccine by a temporary nurse at a clinic set up on campus by the Wake County Health Department since it is essential that the person asserting the estoppel shows that he or she acted in reliance on the conduct of the person against whom estoppel is asserted, and in this case all indications were that plaintiff received his vaccination from the nurse because Wake County Health Services chose to set up a clinic at NCSU, not because NCSU represented that the nurse who administered the shot was its agent or because plaintiff relied on NCSU for medical expertise. Am Jur 2d, Agency §§ 359-371; Estoppel and Waiver §§ 26-113.

Appeal and Error § 137 (NCI4th) — action remanded by trial court to determine amount of refund — interlocutory order — order not appealable The order appealed from was interlocutory and not immediately appealable where the trial court ordered that appellee be refunded all unemployment taxes erroneously collected or assessed for a specified period of time, and the court further ordered that the action be remanded to the Employment Security Commission for determination of the amount of refund to which appellee was entitled. Am Jur 2d, Appeal and Error § 125.

1. Insurance § 528 (NCI4th) — underinsured motorist coverage — stacking — foster child — definition "Foster child," as used in the portion of plaintiff's underinsured motorist policy defining covered "person," means a person upbringing, care and support has been provided by someone not related by blood or legal ties and who has reared the person as his or her own child. Plaintiff's contention that "foster child" includes only persons under the age of majority was rejected because it would result in disparate treatment of the same class of insureds. Am Jur 2d, Automobile Insurance § 322.<page_number>Page 702</page_number> <block_quote> Who is "member" or "resident" of same "family" or "household," within no-fault or uninsured motorist provisions of motor vehicle insurance policy. 96 ALR2d 804.</block_quote> 2. Insurance § 528 (NCI4th) — underinsured motorist coverage — stacking — foster child — evidence insufficient The trial court erred by granting summary judgment for defendants in an action to determine whether defendant Jack Gambino was included in defendant Johnson's underinsured motorist coverage where Jack left the home of his father and stepmother in 1987 and lived with the Johnsons until 1988, when he moved into a dormitory at Louisburg college; he returned to the Johnsons' on weekends, holidays and summer recess; the Johnsons provided him with school supplies, lunch money, food, and spending money when he resided in their home; he was allowed to use the family vehicle; he had little or no contact with his father and received no financial support from his father; he was seriously injured in a collision in 1989; the Johnsons purchased medical supplies and equipment for Jack's use while he recuperated in their home; and he continued to live with the Johnsons until he moved to his father's home in 1990. However, the Johnsons assumed no parental responsibilities for Jack until he was approximately seventeen and one-half years old; he was raised and supported by his natural parents, or his natural father and stepmother prior to that time; he maintained a part-time job and earned income which he used to purchase clothing after leaving his father's home; his natural mother sent him money whenever she could; the Johnsons listed their natural child as a driver on their automobile insurance policy but did not list Jack; although the Johnsons purchased supplies and equipment for Jack's recuperation, his stepmother sought payment of his medical expenses under a health insurance policy insuring herself and her dependent children; and Jack moved back to his father's home following his recuperation. The evidence, considered in the light most favorable to plaintiff, creates a jury question as to whether Jack falls within the definition of foster child. Am Jur 2d, Automobile Insurance § 322. <block_quote> Who is "member" or "resident" of same "family" or "household," within no-fault or uninsured motorist provisions of motor vehicle insurance policy. 96 ALR2d 804.</block_quote><page_number>Page 703</page_number> 3. Insurance § 528 (NCI4th) — automobile insurance — underinsured motorist coverage — stacking — policy language The trial court correctly ruled that defendant Jack Gambino is not entitled to aggregate or stack UIM coverage of each of three vehicles insured under one policy where, at the time this action arose, N.C.G.S. § <cross_reference>20-279.21</cross_reference>(b)(4) permitted persons insured of the first class to stack coverages; insureds of the first class were defined as the named insured and, while a resident of the same household, the spouse of any named insured and the relatives of either; there was evidence from which a jury could reasonably find Gambino to be a foster child, but a foster child is not a relative and thus is not a person of the first class; and the policy language prohibited intrapolicy stacking. Am Jur 2d, Automobile Insurance §§ 326 et seq. <block_quote> Combining or "stacking" uninsured motorist coverages provided in single policy applicable to different vehicles of individual insured. 23 ALR4th 12.</block_quote> 4. Insurance § 690 (NCI4th) — automobile insurance — underinsured motorist coverage — prejudgment interest or costs taxed The trial court did not err in an underinsured motorist stacking case by ruling that the policy's UIM benefits do not cover prejudgment interest or costs taxed where the judgment against the tortfeasor far exceeds the maximum amount of UIM coverage provided by the policy, so that the available limits of UIM coverage would be exhausted in satisfaction of the judgment in the underlying tort action and no UIM coverage would be available for payment of prejudgment interest or costs. Moreover, the Supplementary Payments Provision of the policy applies only to the liability portion of the policy and not the UIM Section. Am Jur 2d, Automobile Insurance § 428.

1. Appeal and Error § 118 (NCI4th) — water and sewer system — required connection — action against Town — summary judgment for Town denied — immediately appealable The denial of summary judgment for defendant Town of Lansing was immediately appealable in an action against the Town arising from an ordinance requiring water and sewer connections. Am Jur 2d, Appeal and Error § 14. <block_quote> Reviewability of order denying motion for summary judgment. 15 ALR3d 899.</block_quote> 2. Municipal Corporations § 413 (NCI4th) — water and sewer system — required connection — governmental function — Town's tort liability — immunity The Town of Lansing was performing a governmental function when it passed an ordinance mandating connection to a water and sewer system and is immune from tort liability for depriving plaintiffs of their wells and septic systems and for unjust enrichment. <block_quote> Am Jur 2d, Municipal, County, School, and State Tort Liability § 87 et seq.</block_quote> <block_quote> Comment Note. — Municipal immunity from liability for torts. 6 ALR2d 1198.</block_quote> <block_quote> Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability. 57 ALR2d 1336.</block_quote><page_number>Page 767</page_number> 3. Estoppel § 3 (NCI4th) — action to enjoin ordinance requiring water and sewer connection — valid exercise of police power — no estoppel The Town of Lansing could not be estopped from requiring connection to a water and sewer system where the Town Clerk/Finance officer had sent town residents a letter before the referendum stating that the Town had no intention of requiring hook-ups and informed residents after the construction of the system that mandatory hook-ups were the Town's only option. The ordinance mandating connection to the water and sewer system was a valid exercise of the Town's police power. Am Jur 2d, Estoppel and Waiver §§ 114-133. <block_quote> Comment Note. — Applicability of doctrine of estoppel against government and its governmental agencies. 1 ALR2d 338.</block_quote> 4. Eminent Domain § 295 (NCI4th) — required water and sewer connection — taking — limitation Actions asserting a "taking" are to be initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall come later. N.C.G.S. § <cross_reference>40A-51</cross_reference>(a). Am Jur 2d, Eminent Domain §§ 498, 499.