NO. COA13-1121

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

JACKSON KAHIHU,

Plaintiff,

v. Durham County

No. 11 CVD 5031

RAYMOND BRUNSON,

Defendant.

Appeal by plaintiff from order entered 12 March 2013 by 

Judge Nancy E. Gordon in Durham County District Court. Heard in 

the Court of Appeals 5 February 2014.

The Law Offices of Andrew J. Kisala, PLLC, by Andrew J. 

Kisala, for plaintiff-appellant.

Law Offices of Robert E. Ruegger, by Robert E. Ruegger, for 

defendant Integon National Insurance Company, defendantappellee.

McCULLOUGH, Judge.

Plaintiff Jackson Kahihu challenges an order granting 

defendant Integon National Insurance Company’s motion for 

directed verdict. For the reasons stated herein, we affirm the 

order of the trial court.

I. Background

On 23 September 2011 Plaintiff Jackson Kahihu filed a 

complaint against defendant Raymond Brunson. Plaintiff alleged 
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the following: On 22 April 2011, plaintiff and defendant

Brunson were involved in a car accident in Durham, North 

Carolina. Plaintiff was driving west in the right lane on 

Holloway Street near U.S. 70 when defendant Brunson was driving 

west in the left lane on the same street. As defendant Brunson

was approaching the PVA turnoff to 2101 Holloway Street, he 

“immediately and without warning swerved across the right lane 

and suddenly applied his brakes which caused him to rapidly 

decelerate in front of Plaintiff’s vehicle, leaving Plaintiff 

unable to stop before colliding with Defendant [Brunson].” “The 

sudden swerving and braking action by Defendant [Brunson] left 

Plaintiff unable to stop before colliding into the back of 

Defendant [Brunson]’s vehicle.” Plaintiff alleged that due to 

defendant Brunson’s negligence, plaintiff had suffered damage to 

his property, physical injuries, and other expenses.

The civil summons, issued on 23 September 2011, was 

returned to plaintiff on 2 November 2011, stating that defendant

Brunson was not served. The civil summons included the 

following notation: “No contact mult. attempts + note.”

On 8 November 2011, plaintiff filed a “Motion for Entry of 

Default” for entry of default and default judgment against 

defendant Brunson for failure to plead. On the same day, 
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plaintiff’s counsel filed an “Affidavit of Service by Certified 

Mail.” Plaintiff’s counsel testified that upon filing the 

complaint on 23 September 2011, he mailed a file-stamped Civil 

Summons and Complaint to defendant Brunson via United States 

postal service certified mail, addressed to defendant, return 

receipt requested. Plaintiff’s counsel testified that on 24 

September 2011, the summons and complaint were delivered to 

defendant Brunson’s place of residence and “signed for by a 

person presumably of suitable age and discretion who is an agent 

for Defendant.” On 8 November 2011, the trial court entered an 

“Entry of Default” against defendant Brunson for failure to 

plead.

On 10 February 2012, plaintiff filed an amended complaint.

That same day, plaintiff filed a “Motion to Set Aside Entry of 

Default” as to defendant Brunson. Plaintiff argued in the 

motion that “[a]ll responsible parties were not known to 

Plaintiff on the date of his Motion for Entry of Default through 

no fault of his own, and could not have been discovered through 

due diligence.” Based on the foregoing, plaintiff asserted that 

he failed to correctly serve all responsible parties pursuant to 

Rule 4 of the North Carolina Rules of Civil Procedure and wished 

to amend his complaint. On 10 February 2012, the trial court 
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entered an “Order Setting Aside Entry of Default” as to 

defendant Brunson.

On 23 March 2012, plaintiff filed a “Motion for Entry of 

Default” against defendant Brunson. Thereafter, the trial court 

filed an “Entry of Default” against defendant Brunson.

Also on 23 March 2012, plaintiff’s counsel filed an 

“Affidavit of Service by Certified Mail,” amended 26 March 2012, 

alleging that on 24 September 2011, a summons and complaint was 

delivered to defendant Brunson’s place of residence and signed 

by a person presumably of suitable age and discretion who is 

agent for defendant Brunson. The affidavit also stated that 

after learning that this case would proceed as an uninsured 

motorists claim, plaintiff’s counsel mailed a file-stamped Civil 

Summons and Complaint on 16 February 2012 to plaintiff’s 

insurance company and provider of his uninsured motorists 

policy, GMAC Insurance Management Corporation (“GMAC”) or 

previously named Integon National Insurance Company. The 

summons and complaint were sent via United States postal service 

certified mail, addressed to GMAC’s registered agent on file 

with the North Carolina Secretary of State, return receipt 

requested. Plaintiff’s counsel testified that on 17 February 

2012, the summons and complaint were delivered to GMAC’s 
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registered agent and signed for by a person presumably of 

suitable age and discretion who is an agent for GMAC.

On 28 March 2012, Integon National Insurance Company 

(“defendant Integon”) filed an Answer. Defendant Integon moved 

to dismiss plaintiff’s action for lack of jurisdiction over the 

person, insufficiency of process, and insufficiency of service 

of process. Defendant Integon also moved to dismiss plaintiff’s 

action for lack of jurisdiction over defendant Brunson, 

insufficiency of process over defendant Brunson, and 

insufficiency of service of process over defendant Brunson.

On 7 May 2012, plaintiff filed a motion for default 

judgment against defendant Brunson and defendant Integon.

Plaintiff argued that the final day for defendant Brunson to 

timely file an answer to plaintiff’s 10 February 2012 amended 

complaint was 16 March 2012. Plaintiff also asserted that

defendant Integon’s final day to timely file an answer was 22 

March 2012.

On 14 May 2012, the trial court entered an order finding 

the following:

2. [Defendant Brunson and defendant Integon] 

have been legally served with process.

3. [Defendant Brunson and defendant Integon] 

have failed to timely answer in a manner 

allowed by the North Carolina Rules of 
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Civil Procedure, and are adjudged to be 

in default.

4. Plaintiff maintained a policy of 

uninsured motorists coverage with 

Defendant INTEGON.

Accordingly, plaintiff’s motion for default judgment was granted 

and default judgment was entered against defendant Brunson and 

defendant Integon.

On 13 June 2012, defendant Integon filed a “Motion to Set 

Aside Default Judgment” pursuant to Rules 60(b)(1), (3), and (6) 

of the North Carolina Rules of Civil Procedure. Defendant 

Integon argued that plaintiff erroneously proceeded with a 

motion for default judgment on 14 May 2012 against defendant 

Integon, without first obtaining an entry of default against 

defendant Integon. Defendant Integon asserted that no entry of 

default could have been entered against defendant Integon 

because the trial court lacked “authority to enter an Entry of 

Default against a party after that party has filed its Answer.”

Following a hearing held on 16 July 2012 on defendant 

Integon’s motion to set aside the default judgment, the trial 

court entered an “Order Setting Aside Default Judgment Against 

Unnamed Defendant” on 20 July 2012. The trial court concluded, 

inter alia, that defendant Brunson and defendant Integon are two 

separate entities and that an entry of default against defendant 
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Brunson is not binding as an entry of default against defendant 

Integon. Thus, the trial court granted defendant Integon’s 

motion to set aside default judgment pursuant to Rule 60(b)(6)1.

On 30 October 2012, plaintiff filed a motion for summary 

judgment against defendant Brunson. On 20 November 2012, the 

trial court entered an order granting plaintiff partial summary 

judgment against defendant Brunson as to the property damages 

specifically pled in plaintiff’s amended complaint.

The case came on for trial at the 12 March 2013 session of 

Durham County District Court. At the close of plaintiff’s 

evidence, defendant Integon moved for a directed verdict.

On 12 March 2013, the trial court entered an order, finding 

that no summons was ever served on defendant Integon. 

Furthermore, the trial court found that defendant Integon 

preserved its challenge to jurisdiction in its answer and did 

not stipulate in the pre-trial order that the trial court had 

jurisdiction in this action. Thus, defendant Integon’s motion 

for directed verdict was allowed for failure to serve a civil 

summons and complaint as required by Rule 4 of the North 

 

1N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2013) provides that “[o]n 

motion and upon such terms as are just, the court may relieve a 

party or his legal representative from a final judgment, order, 

or proceeding for the following reasons: . . . (6) Any other 

reason justifying relief from the operation of the judgment.”
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Carolina Rules of Civil Procedure and N.C. Gen. Stat. § 20-

279.21(b)(3)(a).

The case continued as a bench trial and judgment was 

entered on 19 March 2013 entitling plaintiff to recover for 

personal injury from defendant Brunson. On 21 March 2013, 

plaintiff filed a “Motion to Alter or Amend Judgment or New 

Trial Pursuant to Rules 59 & 60” which the trial court denied on 

6 June 2013.

Plaintiff appeals the 12 March 2013 granting directed 

verdict in favor of defendant Integon.

II. Standard of Review

“The standard of review of directed verdict is whether the 

evidence, taken in the light most favorable to the non-moving 

party, is sufficient as a matter of law to be submitted to the 

jury.” Scarborough v. Dillard’s, Inc., 363 N.C. 715, 720, 693 

S.E.2d 640, 643 (2009) (citation omitted). “If there is more 

than a scintilla of evidence supporting each element of the 

nonmovant’s case, the motion for directed verdict should be 

denied.” Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 

S.E.2d 847, 850 (2004) (citation omitted).

III. Discussion
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Plaintiff argues that the trial court erred (A) in granting 

defendant Integon’s motion for directed verdict based on the 

finding that defendant Integon was not served with a summons and 

(B) by determining that defendant Integon needed to be served 

with a copy of the complaint and summons to be made a party to 

the action.

A. Directed Verdict

First, plaintiff argues that the trial court erred by 

granting defendant Integon’s motion for directed verdict where 

plaintiff presented evidence that defendant Integon had been 

served with a copy of the summons and amended complaint. 

Plaintiff relies on the 26 March 2012 “Amended Affidavit of 

Service by Certified Mail” filed by plaintiff’s attorney. He 

argues that this affidavit created a presumption of service 

which defendant Integon failed to rebut.

We note that section 20-279.21(b)(3) of the North Carolina 

General Statutes

unequivocally requires that the [uninsured 

motorist] carrier be served with a copy of 

the summons and complaint in order to be 

bound by a judgment against the uninsured 

motorist. Subsection (b)(3) further directs 

that upon service of process, the [uninsured 

motorist] carrier shall become a party to 

the suit and shall have the time allowed by 

statute to file responsible pleadings.
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Liberty Mutual Insurance Co. v. Pennington, 356 N.C. 571, 576, 

573 S.E.2d 118, 122 (2002) (emphasis added); see also Darroch v. 

Lea, 150 N.C. App. 156, 160, 563 S.E.2d 219, 222 (2002).

The filing of an affidavit of service that complies with 

the requirements set out in section 1-75.10 of the North 

Carolina General Statutes creates a rebuttable presumption of

valid service. See Goins v. Puleo, 350 N.C. 277, 280-81, 512 

S.E.2d 748, 750-51 (1999). N.C. Gen. Stat. § 1-75.10 provides:

(a) Where the defendant appears in the 

action and challenges the service of 

the summons upon him, proof of the 

service of process shall be as follows:

. . . . 

(4) Service by Registered or Certified 

Mail. – In the case of service by 

registered or certified mail, by 

affidavit of the serving party 

averring:

a. That a copy of the summons and 

complaint was deposited in the 

post office for mailing by 

registered or certified mail, 

return receipt requested;

b. That it was in fact received as 

evidenced by the attached 

registry receipt or other 

evidence satisfactory to the 

court of delivery to the 

addressee; and 

c. That the genuine receipt or 

other evidence of delivery is 

attached.

N.C. Gen. Stat. § 1-75.10(a)(4) (2013).
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Here, plaintiff’s attorney filed an “Affidavit of Service 

by Certified Mail.” Plaintiff’s affidavit of service stated 

that on 16 February 2012, plaintiff’s attorney mailed a filestamped summons and amended complaint to defendant Integon via 

certified mail, return receipt requested. This affidavit 

complied with the requirements set out in N.C. Gen. Stat. § 1-

75.10, thereby creating a rebuttable presumption of valid 

service.

Defendant Integon argues that the trial court necessarily 

concluded that the affidavit of Andrew Gachaiya, an employee of 

Corporation Service Company (“CSC”) who is the registered agent 

of defendant Integon, rebutted the presumption of valid service. 

We agree.

Gachaiya’s affidavit stated that CSC documents and 

maintains records of “all documents served upon it on behalf of 

the companies for which it is registered agent.” Gachaiya 

stated that he had reviewed its records to identify all 

documents plaintiff had served on it as defendant Integon’s

registered agent. According to Gachaiya, on 17 February 2012, 

“CSC’s North Carolina office received via certified mail an 

Amended Complaint addressed to Corporation Service Company in 

the matter of Jackson Kahihu vs. Raymond Brunson Case Number 
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11CVD05031 in the Durham County District Court[.]” Gachaiya’s 

affidavit made no mention of receiving a copy of the summons. 

In addition, CSC received an affidavit of service and an amended 

affidavit of service on 26 March 2012 and 28 March 2012, 

respectively. Furthermore, Gachaiya’s affidavit stated that 

“prior to March 27, 2012, CSC did not notify or communicate in 

any manner the existence of the [matter of Kahihu v. Brunson 

Case Number 11 CVD 05031 in Durham County District Court] to 

GMAC Insurance Management Corporation.”

Based on the foregoing, we hold that Gachaiya’s affidavit 

rebutted the presumption of service by showing that defendant 

Integon never received a copy of the summons on 17 February 2012

and the trial court could properly find that defendant Integon 

was not served with a copy of the summons as required by N.C. 

Gen. Stat. § 20-279.21(b)(3). Accordingly, the trial court was 

without jurisdiction over defendant Integon and did not err in 

granting defendant Integon’s motion for directed verdict.

B. Insurer as a Separate Party

In his last argument, plaintiff contends that the trial 

court erred in its determination that defendant Integon was 

required to be served with a copy of the complaint and summons 

to be made a party to his action. We disagree.
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Section 20-279.21(b)(3)a (2013) of the North Carolina 

General Statutes provides that all liability insurance policies 

are subject to the following:

A provision that the insurer shall be bound 

by a final judgment taken by the insured 

against an uninsured motorist if the insurer 

has been served with copy of summons, 

complaint or other process in the action 

against the uninsured motorist by registered 

or certified mail, return receipt requested, 

or in any manner provided by law; provided 

however, that the determination of whether a 

motorist is uninsured may be decided only by 

an action against the insurer alone. The 

insurer, upon being served as herein 

provided, shall be a party to the action 

between the insured and the uninsured 

motorist though not named in the caption of 

the pleadings and may defend the suit in the 

name of the uninsured motorist or in its own 

name. The insurer, upon being served with 

copy of summons, complaint or other 

pleading, shall have the time allowed by 

statute in which to answer, demur or 

otherwise plead (whether the pleading is 

verified or not) to the summons, complaint 

or other process served upon it. The 

consent of the insurer shall not be required 

for the initiation of suit by the insured 

against the uninsured motorist: Provided, 

however, no action shall be initiated by the 

insured until 60 days following the posting 

of notice to the insurer at the address 

shown on the policy or after personal 

delivery of the notice to the insurer or its 

agent setting forth the belief of the 

insured that the prospective defendant or 

defendants are uninsured motorists.
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N.C. Gen. Stat. § 20-279.21(b)(3)a establishes that the 

insurer is a separate party to the action between the insured 

plaintiff and an uninsured motorist. Grimsley v. Nelson, 342 

N.C. 542, 546, 467 S.E.2d 92, 95 (1996). It is well established 

that “[N.C. Gen. Stat.] § 20-279.21(b)(3)a unambiguously 

provides that an uninsured motorist carrier may defend in the 

name of the uninsured motorist or in its own name, evincing a 

legislative recognition that the uninsured motorist and the 

insurer providing uninsured motorist coverage are separate 

parties with independent interests.” Reese v. Barbee, 129 N.C. 

App. 823, 826, 501 S.E.2d 698, 700 (1998) (citation omitted). 

Therefore, “in order for the insurer to be bound by a judgment 

against the uninsured motorist, service of process must be 

obtained upon the insurer.” Id. Based on the foregoing 

reasons, we must reject plaintiff’s arguments.

IV. Conclusion

Where the trial court did not err in granting defendant 

Integon’s motion for directed verdict, we affirm the order of 

the trial court.

Affirmed.

Judges HUNTER, Robert C., and GEER concur.