CONTENTS 21 SEPTEMBER 1993 AUTOMOBILES AND OTHER VEHICLES 359 (NCI4th). In an action to recover for injuries sustained by plaintiff pedestrian when defendants collided at a city intersection, the evidence was sufficient for the jury on the issue of the first defendant's negligence in failing to maintain a proper lookout where it tended to show that the first defendant was looking to his right and waving at a person in a taxi cab as he entered the intersection on a green light and such defendant failed to see the second defendant entering the intersection from his left against a red light. Frugard v. Pritchard, 440 (NCI4th). Where allegations of the complaint were based on the doctrine of respondeat superior and negligent entrustment and the agency relationship was admitted, the liability of defendant employer would rest on the doctrine of respondeat superior only and the negligent entrustment allegation would become irrelevant. Frugard v. Pritchard, COURTS 143 (NCI4th). The statute providing that the amount of workers' compensation benefits paid on account of an injury shall be admissible in any proceeding against the alleged tortfeasor governs in all actions by a plaintiff employee against a third party as a matter of law in North Carolina even where plaintiff has recovered workers' compensation under the laws of another state. Frugard v. Pritchard, CRIMINAL LAW 730 (NCI4th). The trial court did not commit plain error by referring to the prosecuting witnesses as "victims" in the charge. State v. Richardson, 817 (NCI4th). The trial court did not err in instructing the jury that testimony "is being offered by the state to corroborate the testimony of a witness who has already testified" rather than limiting such testimony to the corroboration of certain child witnesses. State v. Richardson, 1060 (NCI4th). The trial court did not err at defendant's resentencing hearing in allowing evidence concerning other codefendants since formal rules of evidence do not apply and the evidence dealt directly with the circumstances surrounding the crimes for which defendant was convicted. State v. Smallwood, 1133 (NCI4th). The evidence was sufficient to support the trial court's finding as an aggravating factor for trafficking in cocaine that defendant induced others to participate in the commission of the offense. State v. Smallwood, 1182 (NCI4th). There was no merit to defendant's contention that he was never convicted of a resisting arrest charge in the district court because the case was appealed where the official record contained no indication that the conviction was ever appealed to the superior court. State v. Smallwood, 1269 (NCI4th). The trial court did not err in failing to find as a mitigating factor for trafficking in cocaine that defendant had a good reputation in the community where defendant's evidence consisted of letters stating that defendant was "a very good boy" who "got caught up with the wrong people" and who had "had some misfortune" and a letter from the Program Supervisor of the prison unit where defendant was incarcerated. State v. Smallwood, DAMAGES 56 (NCI4th). Evidence of workers' compensation benefits recovered by plaintiff pedestrian were admissible in an action to recover for injuries sustained when defendants collided at a city intersection. Frugard v. Pritchard, DIVORCE AND SEPARATION 112 (NCI4th). The statute providing for the interim transfer of "the use and possession" of a marital asset does not grant the trial court the authority to order the spouse in control of the marital assets to pay to the other spouse a lump sum cash award where such cash is not an existing marital asset. Brown v. Brown, 132 (NCI4th). The trial court properly classified stock in a family-owned business as entirely marital property where the stock was purchased outright by plaintiff husband during the marriage with proceeds from a loan made by his mother rather than over time and the debt incurred to purchase the stock was thus a marital debt. King v. King, 290 (NCI4th). The evidence was sufficient to support the trial court's determination that a previous order and consent judgment entered into by the parties was not integrated and that the support provisions were modifiable. Lemons v. Lemons, EMINENT DOMAIN 287 (NCI4th). The obstruction of view of plaintiff's billboards due to the vegetation and trees planted by DOT as part of a highway beautification project did not amount to a taking of plaintiff's property by inverse condemnation. Adams Outdoor Advertising v. N.C. Dept. of Transportation, EVIDENCE AND WITNESSES 962 (NCI4th). Statements made by child sexual assault victims to a mental health consultant at the UNC Children's Hospital were admissible under the medical diagnosis and treatment exception to the hearsay rule where the witness's interviews of the children were conducted to assist a physician who diagnosed both children as being victims of sexual trauma. State v. Richardson, 2332 (NCI4th). The trial court did not err in admitting expert testimony concerning general characterics of sexually abused children, behavioral problems in those who have been abused, and children's disclosure patterns. State v. Richardson, 2335 (NCI4th). The trial court did not err in admitting the testimony of a pediatrician who was an expert in the diagnosis of child sexual abuse that the victims had been sexually molested. State v. Richardson, FIDUCIARIES 29 (NCI4th). When a trustee of a deed of trust who is also a licensed attorney performs extraordinary services as described in G.S. 32-51 in connection with a foreclosure proceeding, the trustee is entitled under G.S. 45-21.20 to an award of attorney's fees as an expense incurred with respect to the sale or proposed sale, but the trial court must make findings as to the attorney's skill, his hourly rate, its reasonableness, what he did, and the hours he spent. In re Foreclosure of Newcomb, HIGHWAYS, STREETS, AND ROADS 32 (NCI4th). The temporary exposure of a junkyard to view by highway construction work was sufficient to render an unzoned area commercial for purposes of the Outdoor Advertising Control Act even though the junkyard would eventually have to be screened from view or removed under the Junkyard Control Act. Naegele Outdoor Advertising v. Harrelson, INSURANCE 509 (NCI4th). The workers' compensation carrier for a plaintiff who was injured in an automobile accident while driving a truck within the course and scope of his employment had a subrogation lien on the UM policy proceeds in the case. Bailey v. Nationwide Mutual Ins. Co. Defendant Nationwide's liability to plaintiffs for UM benefits could not be reduced by the amount of workers' compensation benefits paid to or for the benefit of plaintiff husband by Aetna, the workers' compensation carrier. Ibid. Where plaintiffs' damages were established at an amount in excess of insurance available to plaintiffs under defendant insurer's UM policy, and plaintiffs were therefore entitled to the total policy amount, the issue of judgment interest did not apply. Ibid. 514 (NCI4th). The language of plaintiffs' auto liability policy prohibited stacking of the UM coverages on the three separate vehicles covered by the policy. Bailey v. Nationwide Mutual Ins. Co. 528 (NCI4th). Plaintiff's recovery against a board of education pursuant to the Tort Claims Act for the death of a decedent who was struck by a school bus did not bar plaintiff's claims against the bus driver or decedent's UIM carrier for damages in excess of the maximum recovery allowable under the Tort Claims Act, but a stipulation by the board of education that plaintiff's damages were in excess of $100,000 did not bind the bus driver or decedent's insurance carrier. Oakley v. Thomas, A Class II insured could not intrapolicy stack the UIM coverages for two vehicles listed in the owner's policy but could stack the UIM coverages for the two vehicles listed in his own policy even though the accident occurred prior to the enactment of the 1985 amendment to G.S. 20-279.21(b)(4) which added an interpolicy stacking requirement. Wiggins v. Nationwide Mutual Ins. Co., Plaintiff was entitled to recover costs and prejudgment interest from defendant UIM insurer. Ibid. 530 (NCI4th). Defendant insurance company was not entitled to a credit under one UIM policy for payments made under another UIM policy. Wiggins v. Nationwide Mutual Ins. Co., 532 (NCI4th). Since G.S. 20-279.21(b)(4) required UIM limits to equal bodily injury liability limits, the applicable UIM coverage was $100,000 rather than $50,000 as the policy provided. Wiggins v. Nationwide Mutual Ins. Co., LIENS 35 (NCI4th). A second tier subcontractor's notice of claim of lien failed to comply with statutory notice requirements where it was not titled in a manner which made it unmistakable that the lien was being claimed by way of subrogation or by a subcontractor, it failed to name the general contractor, and it failed to make specific reference to the relationships connecting the landowner, general contractor, subcontractor, and plaintiff. Cameron & Barkley Co. v. American Insurance Co., MASTER AND SERVANT 68 (NCI3d). The Industrial Commission properly found that plaintiff's spontaneous tear of the rotator cuff while operating a power sweeper constituted an occupational disease. Gibbs v. Leggett and Platt, Inc. 87 (NCI3d). Plaintiff's complaint failed to state a claim against defendant employer under Woodson v. Rowland where plaintiff alleged that he was injured by a co-worker's negligence, that the co-worker had previously engaged in a negligent act resulting in serious injury to another employee, and that defendant employer had retained the co-worker without retraining him or providing safety instructions to him. Bynum v. Fredrickson Motor Express Corp., MORTGAGES AND DEEDS OF TRUST 120 (NCI4th). A trustee who commenced but did not complete foreclosure was entitled to a partial commission computed under the deed of trust as five percent of the outstanding indebtedness. In re Foreclosure of Newcomb, Where the mortgagor defaulted on a note secured by a deed of trust, the trustee commenced but did not complete foreclosure, and the mortgagor satisfied the debt by selling the property at a private sale, that portion of the trial court's order determining that the mortgagor waived his right to contest payment of legal expenses and commission to the trustee by virtue of his signing a HUD-1 settlement form reflecting the payment of the legal fees was erroneous. Ibid. NEGLIGENCE 19 (NCI4th). Emotional distress suffered by parents who arrived at an accident scene shortly after their son was struck and killed by defendant's automobile was foreseeable by defendant. Butz v. Holder, TAXATION 22.1 (NCI3d). Where the ACC requested a property tax exemption for its property used for the operation of its administrative offices, the Property Tax Commission did not err in finding that the property is owned by an educational institution, is of a kind commonly employed in activities incident to an educational institution, and is wholely and exclusively used for educational purposes, but the proceeding must be remanded for a determination as to whether the ACC is operated for profit and whether any person was entitled to receive any "pecuniary profit" except reasonable compensation. In re Appeal of Atlantic Coast Conference,