Opinion
No. COA10-1311
Filed 19 July 2011 This case not for publication
Appeal by defendants from order entered 29 March 2010 by Judge Ted Royster in Rowan County Superior Court. Heard in the Court of Appeals 23 March 2011.
Smith Anderson Blount Dorsett Mitchell Jernigan LLP, by Robert E. Desmond and John D. Madden, for plaintiff-appellee. Cranford Buckley Schultze Tomchin Allen Buie, PA, by Paul I. Klein, for defendants-appellants.
Rowan County No. 08 CVS 3978.
Where the insurance policy was not ambiguous, and it was clear that a corporation, and not an individual was the insured, the trial court did not err in holding that the corporation's underinsured motorist coverage was not applicable to an accident involving an automobile not insured under the policy that was being operated for a non-corporate purpose.
I. Factual and Procedural Background
In October 2002, Billy Woodie (Woodie) procured a commercial automobile liability insurance policy from Erie Insurance Exchange (plaintiff) covering vehicles used in his painting company, Woodie's Painting, Inc. The policy named Woodie's Painting, Inc. as the insured and listed several vehicles used in the business as covered by the policy. This policy had underinsured motorist coverage of $1,000,000.00.
In addition to this commercial policy, Woodie maintained a separate, personal automobile insurance policy for his personal vehicles with Farm Bureau Mutual Insurance Company (Farm Bureau), which included coverage for a Mercury Cougar automobile (Mercury). Woodie's daughter, Tiffany Woodie (Tiffany), worked part-time after school for Woodie's Painting, Inc. and occasionally drove the Mercury for business-related errands.
On 25 December 2005, Tiffany was a passenger in the Mercury vehicle and was delivering Christmas presents to family members when she was seriously injured in an automobile accident. The Mercury was being operated by Tiffany's boyfriend and the other vehicle involved in the accident was operated by Michael Self (Self). Self failed to stop at a duly erected stop sign. Self's insurance policy had only $50,000.00 in liability coverage. Tiffany sought recovery pursuant to the underinsured motorist coverage under both the Farm Bureau, and Erie policies. The Farm Bureau policy only provided an additional $50,000.00 in coverage.
On 9 December 2008, plaintiff instituted this action seeking a declaratory judgment that its underinsured coverage was not applicable to Tiffany's injuries.
On 9 March 2010, plaintiff filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. On 29 March 2010, the trial court entered an order declaring that plaintiff's policy "does not afford underinsured motorist (UIM) coverage to [d]efendant Tiffany Woodie for her claims in the underlying tort action."
Defendants appeal.
II. Ambiguity of Terms in Insurance Policy
In their first argument, defendants contend that there is an ambiguity in the Erie policy as to whether the insured was Woodie's Painting, Inc. or Billy Woodie, individually. We disagree.
A. Standard of Review
This Court reviews summary judgment motions for "whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Cornett v. Watauga Surgical Group, P.A., 194 N.C. App. 490, 499, 669 S.E.2d 805, 811 (2008) (citation omitted); Woods v. Mangum, 200 N.C. App. 1, 5, 682 S.E.2d 435, 438 (2009), aff'd, 363 N.C. 827, 689 S.E.2d 858 (2010); see also N.C. Gen. Stat. § 1A-1, Rule 56(c) (2009). "The question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is genuine issue as to any material fact." Woods, 200 N.C. App. at 4, 682 S.E.2d at 438 (citation omitted). In conducting this review, the evidence is viewed in the light most favorable to the non-moving party. Love v. Singleton, 145 N.C. App. 488, 491, 550 S.E.2d 549, 551 (2001) (citation omitted).
B. Analysis
Long-standing principles of construction applied to insurance policies dictate that "[t]his Court resolve[] any ambiguity in the words of an insurance policy against the insurance company. We do so because the insurance company is the party that selected the words used." Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C., 364 N.C. 1, 9, 692 S.E.2d 605, 612 (2010).
However, these principles are only applied when a provision of the policy is ambiguous. Id. Ambiguity exists when "in the opinion of the court, the language of the policy is fairly and reasonably susceptible to either of the constructions for which the parties contend." Wachovia Bank Tr. Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). If the policy, as a contract between the parties, is not ambiguous, "the court must enforce the contract as the parties have made it and may not, under the guise of interpreting an ambiguous provision, remake the contract and impose liability upon the company which it did not assume and for which the policyholder did not pay." Id.
The portion of the insurance policy questioned by defendants reads:
" Subscriber" means the person who signed, or the organization that authorized the signing of, the Subscriber's Agreement. (R 115)
" Subscriber's Agreement" means the agreement, including limited power-of-attorney, among the Subscribers and the Erie Indemnity Company,. . . .
(Emphasis in original).
Defendants assert that an ambiguity arises because of the use of the word "or" in the policy definition of "Subscriber." Defendants argue that this could be construed to mean Billy Woodie, individually, was the insured under the policy and not Woodie's Painting, Inc. Defendants then go on to suggest several different rephrasings of the policy language that would have made it absolutely clear that the insured was the corporation and not the individual. We find these arguments unpersuasive.
The application for insurance clearly stated that the applicant was Woodie's Painting, Inc. The application had boxes to check as to whether the applicant was an individual, a partnership or a corporation. The box for a corporation was checked. (R 95) The application was signed by Billy Woodie as "owner." (R 97) All of the declarations pages, for the policy commencing in 2002, and running through 2005 show the insured to be "Woodie's Painting, Inc., P.O. Box 2374, Salisbury, NC 28145-2374." In addition, the policy contains a "Policy Change Endorsement — North Carolina" which provides that:
" you", " your" or " Named Insured" means the Subscriber named in Item 1. on the Declarations and others named in Item 1. on the Declarations. Except under the GENERAL POLICY CONDITIONS Section, these words include the spouse of an individual(s) named in Item 1. on the Declarations, provided the spouse is a resident of the same household.
(Emphasis in original).
As noted above, the only entity named on any of the Declarations was the corporation, Woodie's Painting, Inc. Since no individual was named, the language referring to the spouse of an individual is not applicable.
It is clear from the application and the policy that the only insured under the policy was the corporation, Woodie's Painting, Inc. There was no ambiguity, nor was there any genuine issue of material fact. The trial court properly granted summary judgment in favor of plaintiff.
This argument is without merit.
III. Defendant's Remaining Arguments
Defendants' remaining arguments are predicated upon a holding that Woodie, individually, was the named insured under the Erie policy. Since we have held that the insured under the policy was the corporation, we need not address these arguments.
AFFIRMED.
Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).