{ "id": 8526289, "name": "INTEGON GENERAL INSURANCE CORPORATION and DONNIE RAY BRAXTON v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, LEITH OLDSMOBILE-NISSAN, INC., and FILIPPO MANIACI", "name_abbreviation": "Integon General Insurance v. Universal Underwriters Insurance", "decision_date": "1990-08-07", "docket_number": "No. 8921SC1307", "first_page": "64", "last_page": "70", "citations": [ { "type": "official", "cite": "100 N.C. App. 64" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 A.L.R.3d 1199", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "opinion_index": 0 }, { "cite": "19 A.L.R.4th 107", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1988, "opinion_index": 0 }, { "cite": "284 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "214-15", "parenthetical": "under certain circumstances, if the amount for which the insured is sued is within primary coverage, the excess carrier may recover for monies expended in defense from primary carrier" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523988 ], "year": 1981, "pin_cites": [ { "page": "557-58", "parenthetical": "under certain circumstances, if the amount for which the insured is sued is within primary coverage, the excess carrier may recover for monies expended in defense from primary carrier" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0551-01" ] }, { "cite": "152 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "269 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563705 ], "year": 1967, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0358-01" ] }, { "cite": "152 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "105-106" } ], "opinion_index": 0 }, { "cite": "269 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562714 ], "year": 1967, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0235-01" ] } ], "analysis": { "cardinality": 482, "char_count": 11819, "ocr_confidence": 0.758, "pagerank": { "raw": 2.287241403800491e-07, "percentile": 0.7858379002019037 }, "sha256": "b491d79b57bbb78284049b55fb62a5aebf0738ce913b31f7de62555a7eb34741", "simhash": "1:bd6e4f2a77459642", "word_count": 1860 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and LEWIS concur." ], "parties": [ "INTEGON GENERAL INSURANCE CORPORATION and DONNIE RAY BRAXTON v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, LEITH OLDSMOBILE-NISSAN, INC., and FILIPPO MANIACI" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals the trial court\u2019s entry of declaratory judgment. The parties stipulated the facts, and following a non-jury trial the court entered judgment for the plaintiffs, Integon General Insurance Corporation (Integon) and Donnie Ray Braxton (Braxton). Defendant is Universal Underwriters Insurance Company (Universal).\nIntegon and Braxton filed this action to determine the parties\u2019 rights and liabilities as governed by an automobile liability policy of insurance which Integon issued to Braxton and a garage liability policy which Universal issued to Leith Oldsmobile-Nissan, Inc. (Leith). The relevant facts, as stipulated by the parties and adopted in the Findings of Fact of the trial court, are summarized as follows: at all relevant times Integon provided automobile liability insurance coverage for Braxton, and Universal provided such coverage for Leith in a garage liability policy. On 27 March 1988, Filippo Maniaci was allegedly injured in an automobile collision with a Buick owned by Leith and driven by Braxton, Leith\u2019s employee. With Leith\u2019s permission, Braxton had taken the Buick for the weekend \u201cfor the purpose of trying the car out as a prospective buyer.\u201d\nIn Maniaci\u2019s suit against Braxton and Leith, Universal defended Leith, and Integon initially defended Braxton. Prior to trial of that suit, Integon and Braxton brought this declaratory judgment action against Universal to determine whether Universal\u2019s policy with Leith also required it to provide liability coverage and defense for Braxton in the Maniaci suit. After entry of the trial court\u2019s order determining Universal to be Braxton\u2019s primary carrier for the collision involving Leith\u2019s Buick, Universal settled the Maniaci suit on behalf of all parties.\nUniversal\u2019s policy with Leith states in pertinent part:\nInsuring Agreement \u2014 We will pay all sums the Insured legally must pay as damages (including punitive damages where insurable by law) because of INJURY to which this insurance applies caused by an OCCURRENCE arising out of GARAGE Operations or Auto Hazard.\nWe have the right and duty to defend any suit asking for these damages.\n\u201cAUTO Hazard\u201d means the ownership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and:\n(1) used for the purpose of GARAGE OPERATIONS or\n(2) used principally in GARAGE OPERATIONS with occasional use for other business or non-business purposes or\n(3) furnished for the use of any person or organization.\nWho is an Insured-\nWith respect to AUTO HAZARD:\n1. YOU;\n2. Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the Auto must be by YOU or within the scope of YOUR permission-,\n3. Any other person or organization required by law to be an INSURED while using an Auto covered by this Coverage Part within the scope of YOUR permission. [Emphases added.]\nOTHER Insurance \u2014The insurance afforded by this Coverage Part is primary, except it is excess:\n(1) for Product Related Damages and Legal Damages;\n(2) for any person or organization who becomes an INSURED under this Coverage Part as required by law.\nIntegon\u2019s policy with Braxton states in pertinent part:\nInsuring Agreement\nWe will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted.\nOther Insurance\nIf there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.\nBased on the stipulated facts and on the insurance policies\u2019 language, the trial court entered the following Conclusion of Law and Judgment which are pertinent to this appeal:\n3. The policy provided by Universal Underwriters Insurance Company to Leith Oldsmobile-Nissan, Inc. provided automobile liability coverage to Donnie Ray Braxton on March 27, 1988.\nAnd FURTHER based upon the foregoing FINDINGS OF FACT and Conclusions of Law it is hereby Ordered and Adjudged that Universal Underwriters Insurance Company is the primary liability insurance carrier for the damages as a result of personal injuries sought by Filippo Maniaci as a result of the automobile accident on March 27, 1988.\nIt is Further Ordered and Adjudged that Universal Underwriters Insurance Company provide a defense for Donnie Ray Braxton, including attorneys fees and litigation expenses, up to and in accordance with the policy limits provided by the policy issued by Universal Underwriters Insurance Company.\nThe issues presented are: (I) whether Universal provided primary liability insurance coverage for the damages sought by Maniaci against Braxton; and (II) whether Universal had a duty to defend Braxton.\nI\nUniversal argues that the trial court first erred by concluding - that Universal\u2019s policy with Leith covered Braxton while he permissibly drove Leith\u2019s automobile. Second, Universal argues that even if its policy provided such coverage, a comparison of Integon\u2019s and Universal\u2019s policies' shows Universal was not the primary insurer of Braxton. We disagree.\nInsurance contracts are construed according to the intent of the parties, and in the absence of ambiguity, we construe them by the plain, ordinary and accepted meaning of the language used. Williams v. National Mut. Ins. Co., 269 N.C. 235, 238, 152 S.E.2d 102, 105-106 (1967).\nIntegon\u2019s policy insured Braxton himself for the collision at issue, but if Braxton did not own the vehicle, Integon would provide insurance only in \u201cexcess over any other collectible insurance.\u201d\nUniversal was required to provide coverage for automobiles owned by Leith and operated by \u201cpaid employees . . . within the scope of . . . [Leith\u2019s] permission.\u201d The stipulated facts show that Leith furnished Braxton, Leith\u2019s paid employee, the Buick to test-drive it for a weekend, and that Braxton\u2019s actual use of the Buick was within the scope of Leith\u2019s permission. The Universal policy insured Braxton because he falls within the second definition of \u2018insured\u2019 in the Auto Hazard portion of the policy. In this definition of \u2018insured,\u2019 there is no requirement that the employee use the automobile within the scope of his employment; he need only use it permissibly. Moreover, according to the clear language of the \u201cOther Insurance\u201d clause, Universal provided Braxton with primary insurance. Accordingly, we affirm the trial court\u2019s judgment declaring Universal primary carrier of coverage for Braxton, and Integon excess carrier for Braxton in these circumstances.\nII\nUniversal argues that the trial court erred in concluding and ordering that Universal had a duty to provide a defense for Braxton and to pay attorney fees and litigating expenses incurred in that defense. We disagree.\nThe trial court ordered Universal, as primary carrier, to \u201cprovide a defense for Donnie Ray Braxton, including attorney fees and litigation expenses, ... in accordance with the policy limits. .. .\u201d Universal argues \u201cthat because each carrier owed to its named insured a separate duty to defend (separate from the existence of any other coverage)!,] Integon should bear its own expenses with regard to the defense of its insured driver.\u201d Integon has an absolute obligation to provide a defense for Braxton that is separate from its undertaking to pay certain sums for which he might become liable. See Fireman\u2019s F. Ins. Co. v. North Carolina Farm B.M.I. Co., 269 N.C. 358, 361, 152 S.E.2d 513, 516 (1967). Similar to the facts in the Fireman\u2019s Fund case, in Integon\u2019s policy the \u2018other insurance\u2019 clause (which defines Integon\u2019s status here as an excess carrier) relates \u201cto the amount to be paid in discharging the liability, if any, of the insured to a third party claimant.\u201d Id., 162 S.E.2d at 517. In addition, Integon\u2019s own policy gave rise to its duty to provide Braxton\u2019s defense, even though Universal was deemed the primary carrier for discharging Braxton\u2019s liability. Id., at 361-62, 361 S.E.2d at 517. Specifically, the policy provided that Integon \u201csettle or defend . . . any claim or suit asking for . . . damages. In addition to our limit of liability, we will pay all defense costs we incur.\u201d Integon\u2019s obligation to defend is not the issue. Rather, the present issue is whether Universal had an obligation to provide a defense for Braxton.\nAs primary carrier, Universal owed its insured both the duty to insure against liability and a duty to defend. The Universal policy states that it \u201cwill pay all sums the INSURED legally must pay as damages . . . because of INJURY to which this insurance applies. . . .\u201d Furthermore, Universal has the \u201cduty to defend any suit asking for these damages.\u201d Since we have already determined that Braxton is an \u2018insured,\u2019 Universal had the duty to defend him, and the trial court correctly ordered it to do so. Whether Integon is entitled to reimbursement from Universal for defense expenses incurred is an issue not before this court. See Horace Mann Ins. Co. v. Continental Cas. Co., 54 N.C. App. 551, 557-58, 284 S.E.2d 211, 214-15 (1981) (under certain circumstances, if the amount for which the insured is sued is within primary coverage, the excess carrier may recover for monies expended in defense from primary carrier); see generally, Annotation, Defense Costs\u2014 Primary and Excess Insurers, 19 A.L.R.4th 107 (1988); Annotation, Defense by Insurer \u2014 Co-Insurer\u2019s Duty, 90 A.L.R.3d 1199 (1979).\nAffirmed.\nJudges ORR and LEWIS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Greeson & Grace, P.A., by Michael R. Greeson, Jr., for plaintiff-appellee Integon General Insurance Corporation.", "Petree Stockton & Robinson, by James H. Kelly, Jr., for defendant-appellant Universal Underwriters Insurance Company." ], "corrections": "", "head_matter": "INTEGON GENERAL INSURANCE CORPORATION and DONNIE RAY BRAXTON v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, LEITH OLDSMOBILE-NISSAN, INC., and FILIPPO MANIACI\nNo. 8921SC1307\n(Filed 7 August 1990)\n1. Insurance \u00a7 88 (NCI3d)\u2014 garage liability policy \u2014 employee driving employer\u2019s car \u2014 employee\u2019s personal insurer as excess carrier\nThe trial court properly determined that defendant, which provided a garage liability policy for an employer, was the primary carrier for an employee who drove' employer\u2019s car with its permission to test-drive it for a weekend and had a collision while doing so, and that plaintiff, which provided an automobile liability policy to the employee, was the excess carrier for the employee.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 217, 219, 222, 223, 389, 433.\n2. Insurance \u00a7 100 (NCI3d)\u2014 employee driving employer\u2019s car\u2014 employee as \u201cinsured\u201d \u2014 duty of insurer to defend\nDefendant garage liability insurer had a duty to provide a defense for an employee involved in a collision while driving his employer\u2019s car with the employer\u2019s permission, and to pay attorney fees and litigation expenses incurred in that defense, since the employee was an \u201cinsured\u201d within the meaning of the policy issued by defendant, and the policy specifically provided that defendant had the duty to defend an insured.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 217, 219, 222, 223, 389, 433.\nAppeal by defendant Universal Underwriters Insurance Company from judgment entered 19 October 1989 by Judge James A. Beaty, Jr., in FORSYTH County Superior Court. Heard in the Court of Appeals 1 June 1990.\nGreeson & Grace, P.A., by Michael R. Greeson, Jr., for plaintiff-appellee Integon General Insurance Corporation.\nPetree Stockton & Robinson, by James H. Kelly, Jr., for defendant-appellant Universal Underwriters Insurance Company." }, "file_name": "0064-01", "first_page_order": 96, "last_page_order": 102 }