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STEPHANIE S. JOHNSON and DEBORAH S. GILBERT, Plaintiffs, v. SANDRA V. SCOTT, Defendant No. COA99-71 (Filed 18 April 2000) Emotional Distress--loss of sleep--loss of appetite--not sufficiently severe The trial court did not err by granting summary judgement for defendant on a claim for negligent infliction of emotional distress arising from the shooting of plaintiff's father by defendant, their step-mother. Although the parties' contentions involved the effect of a settlement agreement limiting any recovery to homeowner's insurance proceeds and a prior ruling discharging the insurance company, alternative grounds for upholding the summary judgment exist in that the loss of sleep and loss of appetite described by plaintiffs do not meet the requisite level of severe emotional distress. Appeal by plaintiffs from judgment entered 13 February 1998 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of Appeals 20 October 1999. Hunter Law Firm, by Robert R. Seidel and R. Christopher Hunter, for plaintiffs-appellants. Spears, Barnes, Baker, Wainio & Whaley, L.L.P., by Jessica S. Cook and Alexander H. Barnes, for defendant-appellee. JOHN, Judge. Plaintiffs Stephanie S. Johnson (Johnson) and Deborah S. Gilbert (Gilbert) appeal the trial court's grant of defendant Sandra V. Scott's motion for summary judgment. We affirm.

Plaintiffs are sisters and the daughters of Duke Tyler Scott (Mr. Scott), now deceased. Defendant Scott is the step-mother of Mr. Scott died 19

plaintiffs, having married Mr. Scott in 1982.

March 1993 as a result of a gunshot wound inflicted by defendant. Plaintiffs thereafter filed suit against defendant, asserting, inter alia, claims of wrongful death, negligence, and for the return of personal property. Plaintiffs' initial action was

-2settled 6 April 1994 upon execution by the parties of a

"Stipulation of Settlement" agreement (the settlement agreement). Defendant therein agreed to a monetary and property settlement with plaintiffs in exchange for the latters' promise "to remain silent" during the plea bargaining and sentencing phases of defendant's impending criminal trial. The settlement agreement further provided, however, that any claim of plaintiffs for negligent infliction of emotional distress against defendant would survive insofar as the same may exist against Defendant and Defendant's carrier of the homeowners insurance (believed to be USF&G) on the premises and home of Defendant at which the incident occurred . . . . Plaintiff understands that Defendant may be obliged under her insurance contract with USF&G or said carrier to assist the carrier in the defense of the surviving claim(s) herein described. . . . . . . In the event that Plaintiff is unable to make or prove a case or succeed against Defendant such that Defendant's insurance policy carrier is liable, then Plaintiff shall have no other or further recourse against Defendant except as otherwise agreed upon in this Settlement Agreement. In the event that any judgment shall be entered against Defendant in this surviving issue, then Defendant's real or personal belongings shall not be subject to execution, it being the understanding and agreement by and between the parties that the sole source of collection shall be the Defendant's insurance policy and/or carrier . . . . Defendant shall exercise all reasonable steps and measures to assist Plaintiff in the collection of any such judgment . . . which shall not be in breach of Defendant's contract with the insurance carrier. Plaintiffs filed the instant suit 21 March 1994 alleging

-3negligent infliction of emotional distress. Defendant's 10 August

1995 motion for summary judgment was continued by the trial court pending resolution of a separate suit filed by United States Fidelity & Guaranty Company (USF&G) against defendant, seeking a declaratory judgment (the declaratory judgment action) as to

USF&G's obligation to defend or afford coverage to defendant in the case sub judice. The trial court allowed USF&G's motion for summary judgment in the declaratory judgment action on 28 July 1995 and "relieved [USF&G] of any obligation to defend or afford coverage to the defendant Scott." Defendant filed timely notice of appeal of the

court's 28 July 1995 ruling, but failed to file a supporting brief. USF&G thereupon moved to dismiss defendant's appeal pursuant to N.C.R. App. P. 13(c) ("[i]f an appellant fails to file and serve his brief . . . the appeal may be dismissed"), which motion was allowed 29 February 1996. In the declaratory judgment action, plaintiffs likewise

attempted to appeal the grant of summary judgment in favor of USF&G. This Court held plaintiffs were not real parties in See U.S. Fidelity and

interest and also dismissed their appeal.

Guaranty Co. v. Scott, 124 N.C. App. 224, 226, 476 S.E.2d 404, 406 (1996), disc. review denied, 346 N.C. 185, 486 S.E.2d 220 (1997) (hereinafter USF&G). observed that even if Johnson and Gilbert had the right to appeal, we would affirm the trial court's decision to grant summary judgment in USF&G's favor on the ground that the insurer had no In the course of the opinion, however, we

-4obligation to Johnson and Gilbert where Scott, the insured, was protected by a covenant not to execute. Id. at 227, 476 S.E.2d at 406. The trial court in the case sub judice thereafter reconsidered defendant's motion for summary judgment, and granted her motion 13 February 1998. Plaintiffs timely appealed.

Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. N.C.G.S.

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