John M. Kirby
Paradigm Consultants v. Builders Mutual | Duty to Defend | Interlocutory Appeal
In Paradigm Consultants v. Builders Mutual, decided by the Court of Appeals on July 16, 2013, the court held that an insurer cannot immediately appeal from a denial of its motion for summary judgment, on a claim by the insured that the insurer had a duty to defend a lawsuit, where that lawsuit is no longer pending. In this case, the builder sued a home-buyer, and the home-buyer filed a counter-claim. The builder's insurer refused to defend that case, asserting several exclusions. The builder later settled with the homeowner, and the builder sued the insurer for damages. (The case also presented interesting issues in that the homeowner would receive some of the proceeds from this suit by the builder. The lower court ruled that this did not violate rules against champerty.) The Court of Appeals ruled that the appeal was interlocutory, and that the appeal should be dismissed. The court distinguished other cases in which the underlying litigation was ongoing, which did affect a substantial right and was immediately appealable.
John Kirby has handled numerous insurance coverage cases and numerous cases on appeal to the North Carolina Court of Appeals.