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LUPO v. POWELL

No. 7910SC169.

259 S.E.2d 777 (1979)

44 N.C. App. 35

Fulton Reaves LUPO, and W. R. Turner v. Edward L. POWELL, Commissioner of the North Carolina Division of Motor Vehicles, and Nationwide Mutual Insurance Company.

Court of Appeals of North Carolina.

November 20, 1979.

Attorney(s) appearing for the Case

Charles A. Parlato, Raleigh, for plaintiffs-appellants.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray, Raleigh, for defendant-appellee, Com'r of N. C. Div. of Motor Vehicles.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Nigle B. Barrow, Jr., Raleigh, for defendant-appellee, Nationwide.

VAUGHN, Judge.

We first consider whether the court erred when it dismissed plaintiffs' action against Nationwide pursuant to Rule 12(b)(6) on the grounds that the complaint failed to state a claim upon which relief can be granted. The complaint is, in pertinent part, as follows.

"4. On . . . June 26, 1974 a civil action was instituted against the plaintiff. . . for recovery of . . . damage incurred by James Taylor...

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