Volume 185 — North Carolina Court of Appeals Reports

<bold>Appeal and Error — record — not timely filed in Court of Appeals</bold> <block_quote> An appeal from a district court order dismissing plaintiff's complaint was properly dismissed for failure to timely file a settled record with the Court of Appeals.</block_quote>

<bold>1. Insurance — subcontractor's general liability policy — additional</bold> <bold>insured endorsement — coverage for general contractor's negligence</bold> <block_quote> An additional insured endorsement adding a general contractor to a subcontractor's commercial general liability policy "as an insured but only with respect to liability arising out of [the subcontractor's] operations" covered the general contractor for its independent negligence if a causal nexus exists between the general contractor's liability and the subcontractor's operations; it did not cover the general contractor only for vicarious liability based on the negligence of the subcontractor.</block_quote> <bold>2. Insurance — subcontractor's general liability policy — additional</bold> <bold>insured endorsement — coverage for general contractor's negligence</bold> <block_quote> A general contractor's alleged negligence in failing to provide safety devices or fall protection for a worker who fell while installing trusses in a house for a framing subcontractor arose out of the subcontractor's operations and was thus covered by an additional insured endorsement in the subcontractor's commercial general liability policy since the general contractor's alleged liability was a natural and reasonable incident or consequence of the subcontractor's operations. Therefore, the commercial general liability insurer had a duty to defend the general contractor in a suit to recover for the worker's injuries.</block_quote> <bold>3. Insurance — subcontractor's general liability policy — additional</bold> <bold>insured endorsement — suit against general contractor — delay in</bold> <bold>notice to insurer</bold> <block_quote> Defendant insurer was not justified in refusing to defend plaintiff general contractor under the additional insured endorsement in a subcontractor's commercial general liability policy on the ground that plaintiff failed to give defendant notice of the suit against it "as soon as practicable" as required by the policy where plaintiff showed that it acted in good faith during a six-month delay in notifying defendant insurer because the delay was a function<page_number>Page 163</page_number> of its internal polices for processing claims, and defendant conceded that it was not materially prejudiced by the delay.</block_quote> <bold>4. Insurance — insurer's unjustifiable refusal to defend — liability for</bold> <bold>reasonable settlement and defense</bold> costs <block_quote> An insurer who unjustifiably refused to provide a defense to an insured is liable for the settlement entered into by the insured and the costs of defense in the amount of $805,957 where the insured submitted evidence to the trial court regarding the reasonableness of the settlement and its defense costs, and the insurer presented no counter evidence and made no argument on appeal that the settlement or defense costs were unreasonable.</block_quote>

<bold>1. Contempt — indirect criminal contempt — violation of formal written</bold> <bold>order not required</bold> <block_quote> The trial court did not err by holding defendant in indirect criminal contempt of court even though defendant contends he did not violate a formal written order when he visited the office of the trial court administrator in violation of the trial court's directive to stay out of the judges' office area, because: (1) N.C.G.S. § <cross_reference>5A-11</cross_reference>(a)(3) does not limit criminal contempt to violation of a formal written order that has been entered and filed with the clerk of court; and (2) although defendant cites a case for his position to the contrary, the defendant in that case was held in civil contempt which is restricted by N.C.G.S. § <cross_reference>5A-21</cross_reference>(a) to the failure to comply with an order of a court.</block_quote> <bold>2. Contempt — indirect criminal contempt — sufficiency of evidence</bold> <block_quote> The trial court did not err by holding defendant in indirect criminal contempt of court even though defendant contends there was insufficient evidence to support the finding, because: (1) defendant concedes that Judge Albright's admonition to defendant on June 23 directed defendant to comply with Judge Spivey's previous order, and thus the practical effect of the show cause order is the same as if it had noticed Judge Spivey's order when it incorporated Judge Spivey's instructions in its directive to defendant; (2) defendant admitted at trial and on appeal that on 26 June 2006 he entered the courthouse area marked "Judges Office" to hand deliver a document to the trial court administrator; (3) there was sufficient evidence that defendant knew he was to stay out of the judges' office area where the trial court administrator's office was located, particularly since he admitted having been warned that the area was restricted; and (4) the case management plan says nothing about hand-delivering motions, and<page_number>Page 248</page_number> defendant offers no explanation for his failure to simply leave with the Clerk of Court his emergency motion addressed to the trial court administrator.</block_quote> <bold>3. Contempt — indirect criminal contempt — burden of proof</bold> <block_quote> The trial court did not err in an indirect criminal contempt case by allegedly placing the burden on defendant to prove that he was not in contempt of court rather than requiring the State to prove beyond a reasonable doubt that defendant was in contempt, because: (1) although defendant is correct that the State has the burden to prove the facts that form the basis of the contempt charge, in the instant case defendant admitted to the underlying facts that on 26 June 2006 he entered the judges' office area of the courthouse, that he had been directed by Judge Albright to comply with Judge Spivey's clear instruction not to go to the judges' offices, and that Judge Albright had told him to stay out of the judges' offices; (2) there was no issue of fact to be decided, and thus no burden of proof was placed on defendant; (3) the only issue before the trial court was a question of law involving whether defendant's admitted behavior constituted indirect criminal contempt; and (4) the trial court properly required proof beyond a reasonable doubt of defendant's contempt of court, and its order states the facts were found beyond a reasonable doubt.</block_quote>

<bold>Environmental Law — solid waste management — illegal disposal of</bold> <bold>sheetrock — incorrect regulation</bold> <block_quote> The trial court did not err in a case involving violation of solid waste management statutes by concluding defendant agency erroneously relied upon <cross_reference>15A N.C.A.C. 13B.201</cross_reference>(a) in proceeding against plaintiff for the illegal disposal of scrap sheetrock on property owned by another without a permit, because: (1) <cross_reference>15A N.C.A.C. 13B.201</cross_reference>(a) does not apply to plaintiff since the regulation applies to owners of land; (2) <cross_reference>15A N.C.A.C. 13B.0106</cross_reference> would be more appropriate to prosecute plaintiff; and (3) even if the finding that plaintiff delivered the sheetrock to the pertinent<page_number>Page 292</page_number> property at the express invitation of the landowner was improperly made, the trial court's decision was based upon ownership of the land and not upon whether the sheetrock was placed upon the land with permission.</block_quote>

<bold>Search and Seizure — traffic checkpoint — required trial court findings</bold> <block_quote> The trial court is not required to make extensive inquiries into the purpose behind every traffic checkpoint, no evidence was brought forward in this case to suggest that the stated purpose behind this checkpoint (sobriety) was a mask for another, unconstitutional purpose, and an order excluding evidence from the sobriety checkpoint was reversed. However, the case was remanded for further findings as to the manner in which this individual stop was conducted.</block_quote>

<bold>1. Appeal and Error — appealability — condemnation — order to revise</bold> <bold>plat</bold> <block_quote> DOT was entitled to an immediate review of a superior court order in a condemnation action requiring it to prepare a revised plat showing a unified tract, even though it was interlocutory. It has been held that orders concerning title or area taken are vital preliminary issues involving substantial rights.</block_quote><page_number>Page 634</page_number> <bold>2. Eminent Domain — condominium owners — necessary parties</bold> <block_quote> The superior court correctly determined that individual owners within a condominium association were necessary parties to a condemnation suit.</block_quote> <bold>3. Eminent Domain — condominium common area — unity of ownership</bold> <block_quote> The common area and individually owned townhouse lots in a condominium development constituted a "single, unified tract" for purposes of awarding damages for the condemnation of a portion of the common area where each individual unit owner had an estate in fee simple in his or her unit, had a property interest in the entire common area by virtue of the recorded easement, and had a property interest in the other units as a result of the restrictive covenants.</block_quote>