GEER, Judge.
Plaintiff Nanette Herbert, in her capacity as administrator of the Estate of Shirley L. Sykes, appeals from an order denying her demand for arbitration and her motion to stay proceedings in an underinsured motorist ("UIM") action. Plaintiff argues on appeal that the trial court erred in denying her demand for arbitration based on its conclusions (1) that her right to arbitration had not yet accrued, (2) that she had waived her right to demand arbitration, and (3) that she had used discovery procedures not available in arbitration. Based on our review of the record, we hold that the trial court's conclusion that plaintiff waived her right to demand arbitration is supported by its findings of fact regarding the time period that elapsed prior to the filing of the demand, the proceedings that occurred in superior court during that time period, and the prejudice suffered by North Carolina Farm Bureau Mutual Insurance Company, Inc. ("Farm Bureau"). We, therefore, affirm.
On 17 October 2004, Shirley L. Sykes ("Ms. Sykes") was a passenger in a motor vehicle operated by her son, Raymond M. Sykes, Jr. ("Mr. Sykes"). They were involved in an accident at the intersection of Trinity Road and Edwards Mill Road in Raleigh, North Carolina with a vehicle owned by John Douglas Marcaccio and driven by Mr. Marcaccio's wife, Kay Harrison Marcaccio (the "Marcaccios").
At the time of the accident, the Marcaccios were insured under an automobile insurance policy issued by Liberty Mutual Insurance Company ("Liberty Mutual"), which provided liability coverage in the amount of $250,000.00 per person. Mr. Sykes was insured under an automobile insurance policy issued by Farm Bureau which provided UIM in the amount of $750,000.00 per person.
On 9 February 2007, Liberty Mutual tendered its policy limits of $250,000.00 in a settlement offer to Ms. Sykes in full settlement of her claim. On 24 February 2007, Liberty Mutual notified Farm Bureau by letter of its liability coverage limit of $250,000.00 in an effort to resolve the claim. Pursuant to N.C. Gen.Stat. § 20-279.21(b)(4), Farm Bureau had 30 days to advance payment of this limit in order to protect its subrogation rights. Farm Bureau advanced against Liberty Mutual's tender by paying $250,000.00 to Ms. Sykes on 1 March 2007, protecting its subrogation rights against the Marcaccios.
In consideration for this advance payment by Farm Bureau, Ms. Sykes promised:
On 16 October 2007, Ms. Sykes filed suit against the Marcaccios seeking to recover for personal injuries resulting from the accident and demanding a trial by jury. Ms. Sykes was represented by her son, Mr. Sykes. On 17 December 2007, the Marcaccios filed a motion to change venue and an answer. The Marcaccios also asked that "all contested issues of fact be tried by a jury." On 14 November 2007, the Marcaccios served written discovery on Ms. Sykes, including interrogatories, a request for production of documents, and a request for statement of monetary relief sought pursuant to N.C.R. Civ. P. 8. On 25 February 2008, a hearing was held regarding the motion to change venue. On 28 February 2008, the motion was granted and venue was changed from Halifax County to Nash County.
On or about 30 September 2008, while the motion for sanctions was pending, Nanette Herbert filed a motion to intervene, a motion to stay, and a motion for a hearing on the competence of Ms. Sykes. In her motions, Ms. Herbert alleged "that there is a genuine, material, and substantial question as to whether Plaintiff was competent at the time of the filing of this action, as well as at the present time." Ms. Herbert requested the appointment of a guardian if Ms. Sykes was determined to be incompetent. The motions also requested that all proceedings be stayed pending a competency hearing.
Ms. Herbert's motions were heard 6 October 2008 and allowed in an order filed on 28 October 2008. In December 2008, Ms. Sykes died. Ms. Herbert was appointed as Administrator of Ms. Sykes' estate.
On 23 June 2009, Mr. Sykes filed a motion to withdraw from representation of Ms. Sykes' estate. The motion was allowed on 6 August 2009. On or about 9 July 2009, M. Greg Crumpler gave notice of appearance as counsel of record for plaintiff. On 8 October 2009, a consent order was filed substituting Nanette Herbert, in her capacity as administrator of Ms. Sykes' estate, as the plaintiff in this action.
The case was originally scheduled for trial at the civil jury session for 15 June 2009, but was continued at the request of plaintiff. The case was next calendared for trial on 7 December 2009. On 30 November 2009, plaintiff filed a demand for arbitration and a motion to stay proceedings. The trial was then continued until 1 March 2010.
Ms. Herbert was deposed on 4 February 2010 in Rocky Mount, North Carolina. A hearing was held on 1 March 2010 on plaintiff's demand for arbitration, and on 15 March 2010 an order was entered denying plaintiff's demand for arbitration. The trial court made the following conclusions of law.
Plaintiff appealed the order denying her demand for arbitration to this Court.
Plaintiff makes two arguments regarding the 15 March 2010 order.
It is well established that arbitration may be waived because it is a right arising from contract. Douglas v. McVicker, 150 N.C. App. 705, 706, 564 S.E.2d 622, 623 (2002). Whether a party has waived this right is a question of fact, and the trial court's findings of fact are binding on appeal when supported by competent evidence. Id. "`[B]ecause of the strong public policy in North Carolina favoring arbitration, courts must closely scrutinize any allegation of waiver of such a favored right.'" N.C. Farm Bureau Mut. Ins. Co. v. Sematoski, 195 N.C. App. 304, 308, 672 S.E.2d 90, 93 (2009) (quoting Cyclone Roofing Co. v. David M. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984)).
In Servomation Corp. v. Hickory Constr. Co., 316 N.C. 543, 544, 342 S.E.2d 853, 854 (1986), our Supreme Court noted that a party waives the right to compel arbitration if it acts inconsistently with arbitration, and the party opposing arbitration is prejudiced by those actions. The Supreme Court explained that "[a] party may be prejudiced by his adversary's delay in seeking arbitration if (1) it is forced to bear the expense of a long trial, (2) it loses helpful evidence, (3) it takes steps in litigation to its detriment or expends significant amounts of money on the litigation, or (4) its opponent makes use of judicial discovery procedures not available in arbitration." Id. Accord Cyclone Roofing Co., 312 N.C. at 229-30, 321 S.E.2d at 876-77 (finding similar actions may prejudice a party when opposing party delays in requesting arbitration). Filing of pleadings alone does not waive the right to compel arbitration. Id. at 230, 321 S.E.2d at 877.
Here, the trial court concluded that plaintiff waived her right of arbitration by proceeding with litigation "so far and in such a manner" that Farm Bureau was prejudiced by appearing as an unnamed defendant and expending "significant resources." The court alternatively concluded that waiver occurred because plaintiff used judicial discovery procedures that are not available in arbitration, primarily by failing to respond to discovery.
We agree with plaintiff that the trial court erred in reaching the latter conclusion. Neither the findings of fact nor the record contain any indication that plaintiff sought discovery from either the Marcaccios or Farm Bureau. Responding to discovery requests promulgated by an opposing party—or, in this case, failing to respond to discovery requests—does not constitute making use of discovery not available in arbitration.
As for the trial court's conclusion that Farm Bureau was prejudiced by plaintiff's delay in demanding arbitration by having to expend significant resources to defend the suit, plaintiff contends that "there is no record evidence to support the finding or conclusion"
This Court has consistently held that when considering whether a delay in requesting arbitration resulted in significant expense for the party opposing arbitration, the trial court must make findings (1) whether the expenses occurred after the right to arbitration accrued, and (2) whether the expenses could have been avoided through an earlier demand for arbitration. See Culberson v. REO Props. Corp., 194 N.C. App. 793, 798-99, 670 S.E.2d 316, 320 (2009) (remanding for failure to make findings whether expenses could have been avoided if earlier arbitration request made and whether expenses were incurred after the right to request arbitration accrued). See also McCrary v. Byrd, 148 N.C. App. 630, 639-40, 559 S.E.2d 821, 827 (2002) (remanding matter where there was no finding whether legal fees resulted from delay in arbitration or whether they were incurred prior to demand for arbitration), disc. review denied and cert. denied, 356 N.C. 674, 577 S.E.2d 625 (2003); Miller Bldg. Corp. v. Coastline Assocs. Ltd. P'ship, 105 N.C. App. 58, 63, 411 S.E.2d 420, 423 (1992) ("In order to constitute prejudice, plaintiff would have had to expend funds because of defendants' delay in demanding arbitration."); Prime South Homes, Inc. v. Byrd, 102 N.C. App. 255, 261, 401 S.E.2d 822, 826-27 (1991) (affirming trial court's finding of prejudice where defendants spent more than $10,000.00 in legal fees they would not have incurred had arbitration been demanded earlier, and where plaintiff took advantage of discovery not available in arbitration).
Plaintiff contends that the right to demand arbitration accrued on 24 February 2007. Eight months later, Mr. Sykes filed suit on his mother's behalf, requesting a jury trial, necessarily including a jury determination of damages—the issue that plaintiff now seeks to arbitrate. At that time, Mr. Sykes discussed with Farm Bureau's counsel his intent to proceed through a jury trial, including talking about the details of prosecuting the action.
Over the next two years, following the filing of the lawsuit with its jury demand, Mr. Sykes, his mother, and plaintiff did not give any indication that they had changed their minds about proceeding with a jury trial. During that two-year period, the Marcaccios filed multiple motions requiring two separate hearings, and plaintiff filed three motions requiring another hearing. Farm Bureau's counsel attended each hearing. In addition, plaintiff twice obtained a continuance of the trial. None of this time or the related costs would have been expended in an arbitration. It was only on the eve of the second trial date that plaintiff finally demanded arbitration.
Additionally, Timothy W. Wilson, who represents Farm Bureau in this matter, submitted an affidavit to the trial court stating:
While Wilson did not quantify the expenses, the trial court's specific findings regarding what occurred during the superior court proceedings and the Wilson affidavit are sufficient to support the ultimate finding that Farm Bureau expended "significant resources," sufficient to constitute prejudice. We can conclude without specific dollar amounts that attendance by counsel at multiple hearings and defense of a litigation over a two-year period (with the case being twice calendared for trial as well as other hearings) involves "significant resources." As our Supreme Court has stated, "[J]ustice does not require that courts profess to be more ignorant than the rest of mankind." State v. Vick, 213 N.C. 235, 238, 195 S.E. 779, 781 (1938).
In support of her argument that the trial court was required to make specific findings regarding how much money Farm Bureau spent, plaintiff relies on Sullivan v. Bright, 129 N.C. App. 84, 87, 497 S.E.2d 118, 120-21 (1998). In Sullivan, however, Farm Bureau, the plaintiff's UIM carrier, argued that it was prejudiced only because during the time the plaintiff delayed seeking arbitration, the plaintiff proceeded to take two depositions.
Here, we have specific legal proceedings over a two-year period that entailed legal expenses and effort that would have been unnecessary had a demand for arbitration been made earlier. This case is factually similar to Big Valley Home Ctr., Inc. v. Mullican, 774 So.2d 558, 562 (Ala.2000), in which the plaintiff filed a complaint on 24 October 1996, and one of the defendants waited for more than two years before filing a motion to compel arbitration. During that time, the co-defendant had answered the complaint, the plaintiff was deposed, the trial was continued five times, two judges were recused, and a settlement offer was made to the plaintiff. Id. The Alabama Supreme Court held that the plaintiff's attorneys "had invested time and money preparing for a trial on the merits. Had [the co-defendant] desired to arbitrate, then it had ample time and opportunity before the eve of trial for it to seek to do so." Id. The Court, therefore, held that the trial court properly found that the co-defendant had waived its right to arbitration. Id.
We find the reasoning in Big Valley persuasive. We hold that the trial court properly concluded that plaintiff waived the right to arbitrate by waiting until the eve of the second trial date to file a motion to compel arbitration, causing Farm Bureau, over more than two years, to prepare for and attend three court hearings and engage in other defense activities, resulting in an expenditure of resources (including time and expense) that would have been unnecessary had plaintiff moved to compel arbitration earlier.
While the better practice would be for the carrier to provide specific information about the time and expense incurred and for the trial court to make findings of fact based on that information, the findings of fact in this case are minimally sufficient to establish waiver. We hold that the trial court's conclusion of law that Farm Bureau was prejudiced by the delay because it was required to spend a significant amount of resources to defend the suit is supported by competent findings of fact.
Affirmed.
Judges STEELMAN and STEPHENS concur.
