Opinion
No. 9021SC911
Filed 4 June 1991
Insurance 69 (NCI3d) — automobile insurance — stacking — nonowner family member The trial court correctly granted summary judgment for plaintiffs in a declaratory judgment action to determine whether plaintiffs were entitled to stack the UIM coverages of three separate vehicles covered under a single Nationwide policy. A distinction between the policy owner and a non-owner family member covered by the policy would not be valid under Sutton v. Aetna Casualty Surety Co., 325 N.C. 259. N.C.G.S. 20-279.21 (b)(4).
Am Jur 2d, Automobile Insurance 329.
Combining or "stacking" uninsured motorist coverages provided in single policy applicable to different vehicles of individual insured. 23 ALR4th 12.
APPEAL by defendant from judgment entered 14 June 1990 in FORSYTH County Superior Court by Judge James M. Long, granting plaintiffs' motion for summary judgment. Heard in the Court of Appeals 13 March 1991.
Womble, Carlyle, Sandridge Rice, by Richard T. Rice, Clayton M. Custer and James P. Hutcherson, for plaintiffs-appellees.
Nichols, Caffrey, Hill, Evans Murrelle, by Paul D. Coates, for defendant-appellant.
Judge GREENE dissenting.
Plaintiff Michelle K. Harris, the minor daughter of plaintiffs David and Ellen Harris, was injured in an automobile accident while traveling as a passenger in a vehicle owned by George Wayne Faust and operated by his daughter, Mary Elizabeth Faust, on 25 September 1989. The Faust vehicle was insured under a State Farm Insurance Company policy having liability limits of $100,000.00. Michelle incurred medical expenses alone in excess of $100,000.00. At the time of the accident, Michelle's parents owned three vehicles insured under a single policy by defendant Nationwide Mutual Insurance Company [hereinafter Nationwide]. In its policy covering the Harris' three vehicles, Nationwide provided uninsured and underinsured motorist [hereinafter UIM] coverage of one hundred thousand dollars ($100,000.00) per person and three hundred thousand dollars ($300,000.00) per accident for each vehicle insured. Plaintiffs paid to Nationwide separate premiums of $10.00 per vehicle for uninsured and UIM coverage.
Plaintiffs filed this action for declaratory judgment on 2 March 1990 requesting the trial court to determine whether plaintiffs were entitled to stack the UIM coverages of three separate vehicles covered under the single Nationwide policy. On 14 May 1990 plaintiffs filed a motion for judgment on the pleadings and summary judgment. Defendant orally cross-motioned for summary judgment pursuant to N.C.R. Civ. P. 56 (b). In a judgment dated 14 June 1990, the trial court granted plaintiffs' motion for summary judgment. The dispositive portions of the trial court's judgment are as follows:
2. That the coverage for the three vehicles listed in the insurance policy referred to in the Complaint and issued by the defendant to the plaintiffs David A. Harris and Ellen E. Harris can be stacked so as to provide underinsured motorist coverage in the amount of $300,000 for injuries and damages sustained by the plaintiffs arising out of the accident described in the Complaint, and that the underinsured motorist coverage available to Michelle Harris is identical to the coverage available to David A. Harris and Ellen E. Harris under the insurance policy issued by the defendant.
3. That the defendant's limit of liability to the plaintiffs shall be $300,000, less the primary coverage paid to the plaintiffs pursuant to N.C. Gen. Stat. 20-279.21 (b)(4).
The court denied defendant's oral motion for summary judgment. Defendant appealed.
Defendant assigns error to the trial court granting plaintiffs' motion for summary judgment and denying defendant's motion for summary judgment. Defendant contends that Michelle K. Harris is not entitled to stack the three vehicles on her parents' single policy because she is not the owner of the insured vehicles.
The decision of our Supreme Court in Sutton v. Aetna Casualty Surety Co., 325 N.C. 259, 382 S.E.2d 759, reh'g denied, 325 N.C. 437, 384 S.E.2d 546 (1989), allows intrapolicy and interpolicy stacking of UIM coverage. In Sutton, the court held that the language of the Motor Vehicle Safety and Financial Responsibility Act is intended to permit both interpolicy and intrapolicy stacking of multiple vehicles for UIM coverage by the policy owner and prevails over any inconsistent language found in a policy. Therefore, the dispositive question in this case is whether a distinction exists for UIM coverage purposes between the policy owner and a nonowner family member covered by the policy.
We perceive that such a distinction would not be valid under Sutton. Although the plaintiff in Sutton was the owner of the insured vehicles, the Court's holding in Sutton is that the benefits contemplated under the applicable statutory provisions in N.C. Gen. Stat. 20-279.21 (b)(4) flow to the insured injured party. (Emphasis supplied). At the time of the accident in this case, Michelle was a household resident and a family member as contemplated by the provisions of defendant's policy, and was therefore included under the policy as a person insured. Under the holding of this Court in Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, disc. rev. denied, 316 N.C. 731, 345 S.E.2d 387 (1986), Michelle falls within the class of persons insured under the provisions of G.S. 20-279.21 (b)(3) for her claims in this case, thus entitling her to UIM coverage under her parents' policy independent of policy provisions. See also Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 400 S.E.2d 44 (1991).
For the reasons stated, the judgment of the trial court is
Affirmed.
Judge WYNN concurs.
Judge GREENE dissents.