Volume 130 — North Carolina Court of Appeals Reports

<bold>1. Parent and Child — abused juveniles — sufficiency of evidence</bold> There was sufficient competent evidence to support the conclusion of the trial court that two children were abused juveniles within the meaning of N.C.G.S. § 7A-517(1)(d), but there were no findings regarding a third child having sustained "severe emotional damage" and the determination that he is an abused juvenile was reversed. <bold>2. Parent and Child — neglected juveniles — sufficiency of</bold> <bold>evidence</bold> There was clear and convincing evidence to support the conclusion of the trial court that three children were neglected juveniles within the meaning of N.C.G.S. § 7A-517(21) where the mother, who had custody, has a severe substance abuse problem involving alcohol, she has driven an automobile while impaired due to alcohol with her minor children as passengers, she becomes intoxicated at home to the point of falling down and being unable to care for her younger children, and her drinking has contributed to the older children's emotional problems. <bold>3. Evidence — alco-sensor test — admissibility</bold> There was no prejudicial error in a juvenile abuse and neglect adjudication where the trial court admitted alco-sensor test<page_number>Page 38</page_number> results even though N.C.G.S. § <cross_reference>20-16.3</cross_reference>(d) provides that such results might be introduced only to determine whether an alleged impairment was caused by a substance other than alcohol and that exception was not relevant to this case. In light of other evidence showing that the mother had an alcohol problem, any error was not prejudicial. <bold>4. Evidence — intoxilyzer — required foundation for introduction</bold> There was no prejudice in a juvenile abuse and neglect adjucation where the results of intoxilyzer tests on the mother were admitted even though it was unknown whether the officer who administered the test possessed a valid permit or whether he followed proper procedure. In light of the other evidence showing that the mother had an alcohol problem, any error was not prejudicial. <bold>5. Parent and Child — neglect and abuse adjudication —</bold> <bold>post-petition occurrences — admissibility</bold> There was no error in a juvenile abuse and neglect adjudication where the trial court admitted evidence of post-petition occurrences. The post-petition occurrences were admissible for the disposition stage and the trial court held the adjudication and disposition hearings at the same time. It is presumed that the trial court disregarded the post-petition occurrences for the adjudication portion of the hearing and considered the evidence only for the disposition stage.

<bold>1. Evidence — other crimes — relevant to victim's state of mind</bold> There was no prejudicial error in an armed robbery prosecution from the admission of evidence of a prior breaking and entering of this victim's house where defendant had subsequently threatened the victim for telling the police that he was one of the men who had committed the break-in. Fear or intimidation is a material fact in issue regarding armed robbery and the trial court correctly determined that the victim's state of mind was relevant in this case. In light of the court's limiting instruction, it could not be found that the court's decision that the evidence was not unfairly prejudicial was unreasoned. However, assuming error, defendant failed to show prejudice because the undisputed evidence alone established the trespassory taking of personal property from the presence of another by the threatened use of a firearm. <bold>2. Criminal Law — prosecutor's argument — defense failure to</bold> <bold>present evidence</bold> There was no error in an armed robbery prosecution where the prosecutor argued that the jury had heard no evidence to conflict with the prosecuting witness's testimony. The prosecutor's comment was aimed at defendant's failure to present evidence to rebut the State's case, not at his failure to take the stand. <bold>3. Robbery — continuous transaction — sufficiency of evidence</bold> The State's evidence in an armed robbery prosecution tended to establish a continuous transaction even though defendant contended that the State failed to show that defendant's threatened use of force induced the victim to part with her property. There<page_number>Page 264</page_number> was sufficient evidence to permit a reasonable juror to find that defendant's threat to shoot the victim was inseparable from the taking of her money and that the threatened use of force induced the victim to part with her money. <bold>4. Evidence — armed robbery — consumption of narcotics — not</bold> <bold>prejudicial</bold> There was no prejudicial error in an armed robbery prosecution from the admission of defendant's post-arrest statement indicating that he had consumed cocaine where there was ample other evidence to support defendant's conviction.

<bold>1. Damages and Remedies — commercial bribery — damages as a matter</bold> <bold>of law</bold> <block_quote> The proper measure of damages in an action arising from commercial bribery must include at a minimum the amount of commercial bribes the third party paid.</block_quote><page_number>Page 577</page_number> <bold>2. Unfair Trade Practices — commercial bribery — treble damages</bold> <block_quote> A claim for treble damages under N.C.G.S. § <cross_reference>75-16</cross_reference> was remanded where the requirement of an unfair or deceptive act was met in that commercial bribery is a crime in North Carolina and a violation of a criminal statute can constitute an unfair and deceptive act; the second element was met in that the jury concluded that the acts were in and affecting commerce; but the third element was not satisfied in that the jury made no finding regarding the amount of the secret payments.</block_quote> <bold>3. Evidence — commercial bribery — checks for bills and</bold> <bold>distributions — admissible</bold> <block_quote> There was no error in a civil action based on commercial bribery in the admission of checks written for bills and a summary of payments which were characterized as distributions, even though defendant contended that the numbers did not reflect profits, because the exhibits were relevant to profits and the issue of damages. Even if the issue of unfair prejudice had been properly preserved, the exhibits were not unfairly prejudicial to defendant.</block_quote> <bold>4. Trials — instructions — complex — no error</bold> <block_quote> There was no error in a civil action arising from a commercial bribery in the "totality of the charge" where defendant claimed that the issues were too numerous and confusing and were likely to mislead the jury. The lawsuit was complex, defendant did not submit any better alternatives, and defendant did not explain on appeal how the jury was misled or misinformed or how the instructions were "emphatically favorable" to plaintiff.</block_quote> <bold>5. Employer and Employee — commercial bribery — jury findings —</bold> <bold>damages</bold> <block_quote> The trial court did not err in a civil action arising from commercial bribery by denying defendant's motion to set aside the verdict or in trebling the damages where the jury determined that the conduct it found in issue number 6 was not a proximate cause of any injury, but found in other issues that defendant had defrauded plaintiff with regard to the true nature of a vendor and its relationship with plaintiff's purchasing manager, that defendants had wrongfully interfered with plaintiff's employment relationship with its purchasing manager, and that plaintiff had been damaged by $88,000. Fraud and wrongful interference with contract<page_number>Page 578</page_number> clearly can support an award of damages and can be the basis for trebling damages under N.C.G.S. § <cross_reference>75-1.1</cross_reference>.</block_quote>

<bold>1. Insurance — property damage — date of discovery</bold> <block_quote> The trial court did not err in a declaratory judgment action to determine insurance coverage arising from a settled termite damage claim by granting summary judgment for defendant-Harleysville where plaintiff contended that there could be "multiple times of discovery" of property damage under West American Insurance Co. v. Tufco Flooring East, <cross_reference>104 N.C. App. 312</cross_reference>, and that each carrier is liable for damages occurring during their policy period. There can be only one date of discovery under Tufco, and, while there may have been earlier indications of termites, the property owner was assured by plaintiff that those incidents were taken care of and the property damage which triggered her suit against plaintiff was not discovered until after Harleysville's coverage period.</block_quote> <bold>2. Insurance — property damage — date of discovery</bold> <block_quote> The trial court did not err by granting summary judgment for plaintiff against defendant Zurich in a declaratory judgment<page_number>Page 730</page_number> action against two insurers to determine coverage for a claim against plaintiff for termite damage. Although defendant Zurich claimed that the damage manifested itself before it insured plaintiff, the earlier manifestations of termites did not trigger "discovery" for purposes of the homeowner's suit against plaintiff.</block_quote> <bold>3. Insurance — duty to defend — possibility of liability</bold> <block_quote> The trial court did not err by granting summary judgment for plaintiff against insurer Zurich in a declaratory judgment action to determine insurance coverage of an action arising from termite damage. The possibility that Zurich could have been liable under one of the claims would have sufficed to impose a duty to defend; ambiguity of policy language regarding an exclusion for damage for which the insured is obligated by assumption of liability in a contract or agreement supports the position that Zurich had a duty to defend.</block_quote> <bold>4. Insurance — coverage — allegations in complaint</bold> <block_quote> The trial court did not err by granting summary judgment for plaintiff against defendant Zurich Insurance Company in a declaratory judgment action to determine coverage for a claim against plaintiff arising from termite damage. Zurich contends that their refusal to defend was justified because the policy states that the property damage must occur within twelve months of the date of any reported inspection; however, the duty to defend is not dismissed because the facts alleged in a complaint appear to be outside coverage where the insurer knows or could reasonably ascertain facts that would be covered if proven.</block_quote> <bold>5. Insurance — property damage — exclusion — supplemental</bold> <bold>rather than general policy</bold> <block_quote> Summary judgment was properly granted for plaintiff against defendant Zurich in a declaratory judgment action to determine insurance coverage of a claim against plaintiff arising from termite damage where an exclusion upon which defendant relied was contained in a supplemental policy rather than plaintiff's commercial general liability coverage. Zurich did not explain how the exclusion in the supplemental policy relieved it of liability; without further investigation, Zurich could not have known what caused the damage, when it occurred, or whether the exclusions applied when they denied coverage.</block_quote><page_number>Page 731</page_number> <bold>6. Insurance — wrongful refusal to defend — costs — attorney</bold> <bold>fees</bold> <block_quote> The trial court did not err in a declaratory judgment action to determine insurance coverage of a settled claim for termite damage by awarding costs, including attorney fees, against defendant Zurich.</block_quote>