{ "id": 8523607, "name": "ANDRE LEONARD and RENEE LEONARD v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY", "name_abbreviation": "Leonard v. North Carolina Farm Bureau Mutual Insurance", "decision_date": "1991-12-17", "docket_number": "No. 917SC153", "first_page": "665", "last_page": "675", "citations": [ { "type": "official", "cite": "104 N.C. App. 665" } ], "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": "412 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511313, 2508242, 2508118, 2508667, 2510653 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0193-01", "/nc/330/0193-05", "/nc/330/0193-02", "/nc/330/0193-04", "/nc/330/0193-03" ] }, { "cite": "406 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522609 ], "year": 1991, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0629-01" ] }, { "cite": "410 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "404" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523186 ], "year": 1991, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0601-01" ] }, { "cite": "408 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0 }, { "cite": "329 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553443, 2555141, 2552921, 2556123, 2555932 ], "year": 1991, "pin_cites": [ { "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0788-04", "/nc/329/0788-05", "/nc/329/0788-01", "/nc/329/0788-02", "/nc/329/0788-03" ] }, { "cite": "404 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "503-04", "parenthetical": "Greene, J., dissenting" }, { "page": "504" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519696 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "108", "parenthetical": "Greene, J., dissenting" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0101-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "337 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 542", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522631 ], "year": 1985, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0542-01" ] }, { "cite": "192 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565633, 8565602, 8565539, 8565699, 8565561 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0425-04", "/nc/282/0425-03", "/nc/282/0425-01", "/nc/282/0425-05", "/nc/282/0425-02" ] }, { "cite": "192 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549827 ], "year": 1972, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0194-01" ] }, { "cite": "141 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1965, "pin_cites": [ { "page": "503" }, { "page": "506" }, { "page": "505" }, { "page": "505" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "264 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572733 ], "year": 1965, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0303-01" ] }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774", "parenthetical": "presume that legislature intended words of statute to be given ordinary meaning" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "500", "parenthetical": "presume that legislature intended words of statute to be given ordinary meaning" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294", "parenthetical": "primary task in statutory construction is to ensure legislative purpose is accomplished" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656", "parenthetical": "primary task in statutory construction is to ensure legislative purpose is accomplished" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "329 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555126 ], "year": 1991, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "345 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695400, 4696174, 4696632, 4699005, 4702879 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0731-02", "/nc/316/0731-05", "/nc/316/0731-04", "/nc/316/0731-03", "/nc/316/0731-01" ] }, { "cite": "340 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521993 ], "year": 1986, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0551-01" ] }, { "cite": "384 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491072, 2489257, 2490993, 2488279, 2491871 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0437-04", "/nc/325/0437-01", "/nc/325/0437-02", "/nc/325/0437-05", "/nc/325/0437-03" ] }, { "cite": "382 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "762" }, { "page": "763", "parenthetical": "legislature intended \"to compensate the innocent victims of financially irresponsible motorists\"" }, { "page": "763" }, { "page": "763" } ], "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "263" }, { "page": "265" }, { "page": "265" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "403 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "because N.C.G.S. \u00a7 20-279.21(b)(4) incorporates the definition of \"persons insured\" under N.C.G.S. \u00a7 20-279.21(b)(3), N.C.G.S. \u00a7 20-279.21(b)(3) defines \"persons insured\" for UIM coverage" } ], "opinion_index": 0 }, { "cite": "328 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537537, 2539785, 2542308, 2540999 ], "year": 1991, "pin_cites": [ { "parenthetical": "because N.C.G.S. \u00a7 20-279.21(b)(4) incorporates the definition of \"persons insured\" under N.C.G.S. \u00a7 20-279.21(b)(3), N.C.G.S. \u00a7 20-279.21(b)(3) defines \"persons insured\" for UIM coverage" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0577-01", "/nc/328/0577-02", "/nc/328/0577-03", "/nc/328/0577-04" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "47", "parenthetical": "because N.C.G.S. \u00a7 20-279.21(b)(4) incorporates the definition of \"persons insured\" under N.C.G.S. \u00a7 20-279.21(b)(3), N.C.G.S. \u00a7 20-279.21(b)(3) defines \"persons insured\" for UIM coverage" }, { "page": "47" }, { "page": "47", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "143", "parenthetical": "because N.C.G.S. \u00a7 20-279.21(b)(4) incorporates the definition of \"persons insured\" under N.C.G.S. \u00a7 20-279.21(b)(3), N.C.G.S. \u00a7 20-279.21(b)(3) defines \"persons insured\" for UIM coverage" }, { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] }, { "cite": "191 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "plaintiff was not \"occupying\" the insured vehicle at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0 }, { "cite": "282 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563360, 8563399, 8563432, 8563338, 8563321 ], "year": 1972, "pin_cites": [ { "parenthetical": "plaintiff was not \"occupying\" the insured vehicle at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0153-03", "/nc/282/0153-04", "/nc/282/0153-05", "/nc/282/0153-02", "/nc/282/0153-01" ] }, { "cite": "190 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "407", "parenthetical": "plaintiff was not \"occupying\" the insured vehicle at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552791 ], "year": 1972, "pin_cites": [ { "page": "580", "parenthetical": "plaintiff was not \"occupying\" the insured vehicle at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0579-01" ] }, { "cite": "94 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "844", "parenthetical": "deceased was not \"entering\" a truck at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0 }, { "cite": "244 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219582 ], "year": 1956, "pin_cites": [ { "page": "692", "parenthetical": "deceased was not \"entering\" a truck at time of accident for purposes of medical payments provision of automobile insurance policy" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0691-01" ] }, { "cite": "352 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "251" }, { "page": "251" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168282 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "270" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0268-01" ] }, { "cite": "251 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "447-48" }, { "page": "447" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "491-92" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "411 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "104 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524286 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/104/0783-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1989, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" }, { "page": "(b)(3)" } ], "opinion_index": 1 }, { "cite": "410 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "104 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523186 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/104/0601-01" ] }, { "cite": "404 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "501" } ], "opinion_index": 1 }, { "cite": "103 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519696 ], "year": 1991, "pin_cites": [ { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/nc-app/103/0101-01" ] }, { "cite": "345 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "316 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695400, 4696174, 4696632, 4699005, 4702879 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/316/0731-02", "/nc/316/0731-05", "/nc/316/0731-04", "/nc/316/0731-03", "/nc/316/0731-01" ] }, { "cite": "340 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 1 }, { "cite": "79 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521993 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/79/0551-01" ] }, { "cite": "403 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537537, 2539785, 2542308, 2540999 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0577-01", "/nc/328/0577-02", "/nc/328/0577-03", "/nc/328/0577-04" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "47" } ], "opinion_index": 1 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "year": 1991, "pin_cites": [ { "page": "143" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0139-01" ] } ], "analysis": { "cardinality": 883, "char_count": 22939, "ocr_confidence": 0.772, "pagerank": { "raw": 5.419948155878779e-07, "percentile": 0.9447127998582157 }, "sha256": "6cc80358f3406c19dec0838622c3d6c3852fc2b19491c4745d9f6351914d4f97", "simhash": "1:1d09a172947f04da", "word_count": 3826 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and WYNN concur in the above opinion except on the issue of stacking, and as to that issue Judge PARKER concurs in the following opinion of Judge WYNN." ], "parties": [ "ANDRE LEONARD and RENEE LEONARD v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals from an order entered 6 December 1990 granting partial summary judgment for the plaintiffs on the issues of whether Andre Leonard (plaintiff) is covered under his brother\u2019s automobile insurance policy issued by the defendant and whether the plaintiff is entitled to \u201cstack\u201d the limits of liability of underin-sured motorist (UIM) coverage under that policy.\nOn 20 February 1988, the defendant issued an automobile insurance policy to Jimmy Leonard (Leonard), the plaintiff\u2019s brother. The policy covered three vehicles and provided liability and UIM coverage for bodily injury in the amount of $50,000.00 per person and $100,000.00 per accident. In August, 1988, Leonard and the plaintiff worked for the Department of Sanitation in Raleigh, North Carolina. Leonard lived in Spring Hope, North Carolina, and the plaintiff lived somewhere nearby with his mother-in-law. To get to work in Raleigh, Leonard usually drove them both to work in his van, one of the three vehicles covered by his automobile insurance policy.\nAt approximately 5:30 a.m. on 11 August 1988, Leonard, the plaintiff, and several other people left Spring Hope to go to work in Raleigh. Leonard drove the van, and the plaintiff rode in the back seat. After driving along U.S. Highway 264 for about fifteen minutes, the left rear tire of the van went flat. Leonard drove the van onto the right shoulder of the road to change the tire. Because the shoulder of the road was not wide enough to park the van entirely off the road, Leonard parked the van so that the left front and rear tires remained on the white line of the paved portion of the shoulder of the road. He then turned on the emergency flashers, and he and the plaintiff exited the van to change the tire. After the plaintiff loosened the lug nuts, Leonard jacked up the van and removed the lug nuts. Leonard then asked the plaintiff to bring him the spare tire from the back of the van. The plaintiff got the tire for Leonard and began rolling it around the left side of the van. As he rolled the tire towards his brother, he was struck by a vehicle driven by Christopher Wilkerson (Wilkerson) and sustained severe and disabling injuries. He also incurred medical bills in excess of $53,000.00.\nAt the time of the accident, Wilkerson\u2019s vehicle was covered by an automobile insurance policy issued by Allstate Insurance Company with limits of liability of $25,000.00 per person and $50,000.00 per accident. On 12 December 1988, the plaintiff and his wife filed a personal injury action against Wilkerson. On 21 March 1990, the plaintiffs released their claims against Wilkerson in exchange for $25,000.00, the limit of liability under Wilkerson\u2019s automobile insurance policy, and voluntarily dismissed with prejudice their action against Wilkerson.\nOn 23 March 1990, the plaintiffs filed a complaint against the defendant seeking UIM coverage under Leonard\u2019s automobile insurance policy in an amount of $150,000.00, the aggregate of the three $50,000.00 coverages provided by the policy, less the $25,000.00 paid by Wilkerson\u2019s insurance carrier. The defendant filed an answer on 18 June 1990. The plaintiffs and the defendant made summary judgment motions, and on 6 December 1990, the trial court entered partial summary judgment for the plaintiffs on the issues of coverage and stacking and denied the defendant\u2019s motion.\nThe record reflects and the defendant\u2019s counsel conceded at oral argument that Wilkerson\u2019s liability for the accident and the plaintiff\u2019s damages have not been determined. Therefore, we note that the trial court\u2019s partial summary judgment order from which the defendant appeals is an interlocutory order not affecting a substantial right. Tridyn Indus. v. American Mut. Ins. Co., 296 N.C. 486, 491-92, 251 S.E.2d 443, 447-48 (1979); Coleman v. Interstate Cas. Ins. Co., 84 N.C. App. 268, 270, 352 S.E.2d 249, 251 (1987). Furthermore, although the trial court certified in this multiple plaintiff action \u201cthat there is no just reason for delay in obtaining appellate review\u201d of its order, the partial summary judgment order as to the plaintiff is not a final order and therefore not immediately appealable. Tridyn, 296 N.C. at 491, 251 S.E.2d at 447. In our discretion, however, we treat the purported appeal as a petition for certiorari and address its merits. N.C.R. App. P. 21(a)(1); N.C.G.S. \u00a7 7A-32(c) (1989); Coleman, 84 N.C. App. at 270, 352 S.E.2d at 251.\nThe issues are (I) whether the plaintiff (A) is an insured under Leonard\u2019s automobile insurance policy, and if not (B) is a \u201cperson insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3) (1989); and (II) whether N.C.G.S. \u00a7 20-279.21(b)(4) (1989) permits intrapolicy stacking to determine an insurer\u2019s limit of liability where the injured person is a member of the second class of \u201cpersons insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3).\nI\n(A) Policy\nUnder the UM/UIM provision of the automobile insurance policy, the defendant contracted to \u201cpay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle [and an underinsured motor vehicle] because of . . . [b]odily injury sustained by an insured and caused by an accident . . . .\u201d Furthermore, \u201c[t]he owner\u2019s or operator\u2019s liability for these damages must arise out of the ownership, maintenance or use of the\u201d underinsured motor vehicle. The defendant does not deny that Wilkerson\u2019s vehicle was an underinsured motor vehicle, nor does it deny that Wilkerson\u2019s alleged liability for the plaintiff\u2019s injuries arose out of Wilkerson\u2019s use of his vehicle. The defendant argues, however, that the plaintiff is not an \u201cinsured\u201d person under the policy and therefore is not entitled to the policy\u2019s UIM coverage.\nWith regard to UM/UIM coverage, the policy defines an \u201cinsured\u201d as being the named insured shown in the declarations, that person\u2019s spouse if a resident of the named insured\u2019s household, any family member if a resident of the named insured\u2019s household, and \u201c[a]ny other person occupying . . . your covered auto . . . or . . . any other auto operated by you.\u201d \u201cYour covered auto\u201d generally means \u201c[a]ny vehicle shown in the Declarations.\u201d Here, the plaintiff was not a named insured, that person\u2019s spouse, or a family member residing in the named insured\u2019s household. Accordingly, the only way the plaintiff can be classified as an \u201cinsured\u201d under the policy is if he was \u201coccupying\u201d Leonard\u2019s van, a vehicle shown in the declarations. The policy defines \u201coccupying\u201d as meaning \u201cin; upon; getting in, on, out or off.\u201d When the plaintiff was struck by Wilkerson\u2019s vehicle, the plaintiff was doing none of these things. To the contrary, he was outside the van helping his brother change a flat tire. Accordingly, because the plaintiff was not \u201coccupying\u201d the vehicle at the time of the accident, he is not an \u201cinsured\u201d under the policy for purposes of UIM coverage. Cf. Jarvis v. Pennsylvania Threshermen & Farmers\u2019 Mut. Cas. Ins. Co., 244 N.C. 691, 692, 94 S.E.2d 843, 844 (1956) (deceased was not \u201centering\u201d a truck at time of accident for purposes of medical payments provision of automobile insurance policy); Lautenschleger v. Royal Indent. Co., 15 N.C. App. 579, 580, 190 S.E.2d 406, 407, cert. denied, 282 N.C. 153, 191 S.E.2d 602 (1972) (plaintiff was not \u201coccupying\u201d the insured vehicle at time of accident for purposes of medical payments provision of automobile insurance policy).\n(B) Statute\nAlthough the plaintiff is not an \u201cinsured\u201d under the applicable policy provisions for UIM coverage, the plaintiff may nonetheless fall into the category of \u201cpersons insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3) for purposes of UIM coverage. See Smith v. Nationwide Mut. Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47, reh\u2019g denied, 328 N.C. 577, 403 S.E.2d 514 (1991) (because N.C.G.S. \u00a7 20-279.21(b)(4) incorporates the definition of \u201cpersons insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3), N.C.G.S. \u00a7 20-279.21(b)(3) defines \u201cpersons insured\u201d for UIM coverage). This is true because our courts have consistently held\nthat when a statute is applicable to the terms of a policy of insurance, the provisions of that statute become part of the terms of the policy to the same extent as if they were written in it, and if the terms of the policy conflict with the statute, the provisions of the statute will prevail.\nSutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 263, 382 S.E.2d 759, 762, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989).\nFor purposes of UIM coverage, N.C.G.S. \u00a7 20-279.21(b)(3) defines \u201cpersons insured\u201d as follows:\nthe named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above or any other person or persons in lawful possession of such motor vehicle.\nOur courts have repeatedly stated that this statute essentially \u201cestablishes two \u2018classes\u2019 of \u2018persons insured\u2019: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle.\u201d Crowder v. N. C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 554, 340 S.E.2d 127, 129, disc. rev. denied, 316 N.C. 731, 345 S.E.2d 387 (1986); see also Sproles v. Greene, 329 N.C. 603, 608, 407 S.E.2d 497, 500 (1991); Smith, 328 N.C. at 143, 400 S.E.2d at 47. Although \u201cMembers of the .first class are \u2018persons insured\u2019 even where the insured vehicle is not involved in the insured\u2019s injuries,\u201d members of the second class are \u201cpersons insured\u201d \u201conly when the insured vehicle is involved in the insured\u2019s injuries.\u201d Smith, 328 N.C. at 143, 400 S.E.2d at 47 (emphasis added). Here, the plaintiff and the defendant agree that the plaintiff is not a member of the first class of \u201cpersons insured.\u201d They disagree, however, as to whether the .plaintiff is a member of the second class. Because the van, an insured vehicle under the policy, was involved in the plaintiff\u2019s injuries, the plaintiff qualifies as a person insured under the second class of \u201cpersons insured\u201d if he was \u201cusing\u201d the van with Leonard\u2019s consent or he was a guest in the van at the time of the accident.\nWith regard to whether the plaintiff was \u201cusing\u201d the van as that term is used in N.C.G.S. \u00a7 20-279.21(b)(3), we must examine what the legislature intended by its choice of that term. Electric Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991) (primary task in statutory construction is to ensure legislative purpose is accomplished). \u201cWhere words in a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning.\u201d State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984); Lafayette Transp. Serv., Inc. v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973) (presume that legislature intended words of statute to be given ordinary meaning). Furthermore, we must liberally construe the verb \u201cuse\u201d to ensure that the beneficial purpose of the Financial Responsibility Act will be accomplished. Sutton, 325 N.C. at 265, 382 S.E.2d at 763 (legislature intended \u201cto compensate the innocent victims of financially irresponsible motorists\u201d).\nThe ordinary meaning of the verb \u201cuse\u201d is \u201cto put into action or servicef,] ... to carry out a purpose or action by means of[, or] . . . [to] make instrumental to an end or process . . . .\u201d Webster\u2019s Third New International Dictionary 2523-24 (1968). When compared to its synonyms such as \u201capply,\u201d \u201cavail,\u201d \u201cemploy,\u201d and \u201cutilize,\u201d the verb \u201cuse\u201d \u201cis general and indicates any putting to service of a thing, . . . [usually] for an intended or fit purpose . . . .\u201d Id. at 2524. Given this ordinary meaning of the verb \u201cuse,\u201d we conclude that the plaintiff was using the van with Leonard\u2019s consent both before and at the time of the accident.\nIn Whisnant v. Aetna Cas. & Sur. Ins. Co., 264 N.C. 303, 305, 141 S.E.2d 502, 503 (1965), a motor vehicle struck the plaintiff as he was trying to push onto the shoulder of the road the insured vehicle he had been driving before it stopped working. Our Supreme Court held that for purposes of a medical payments provision in an automobile insurance policy taken out by the owner of the insured vehicle, the plaintiff was \u201cusing\u201d the vehicle at the time he was injured. Id. at 308,141 S.E.2d at 506. In reaching its decision, our Supreme Court recognized that a person \u201cuses\u201d a motor vehicle when he purposefully uses it as his \u201cmeans of transportation\u201d to a destination. Id. at 308, 141 S.E.2d at 505. Furthermore, in other cases not involving UM or UIM coverage, this Court has recognized broader meanings of the word \u201cuse.\u201d This Court has held that a person \u201cuses\u201d a motor vehicle when loading and unloading it even when the person is not the driver, Fidelity & Cas. Co. v. N.C. Farm Bureau Mut. Ins. Co., 16 N.C. App. 194, 199, 192 S.E.2d 113, 118, cert. denied, 282 N.C. 425, 192 S.E.2d 840 (1972), and in another case, that a hunter \u201cuses\u201d a motor vehicle while hunting when he reaches into it to get a rifle. State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 78 N.C. App. 542, 548, 337 S.E.2d 866, 869 (1985), aff'd, 318 N.C. 534, 350 S.E.2d 66 (1986). Accordingly, because the plaintiff was traveling in the van before the accident with Leonard\u2019s consent, and because the plaintiff was purposefully using the van as his means of transportation to his job, the plaintiff was \u201cusing\u201d his brother\u2019s van before the accident as that term is used in N.C.G.S. \u00a7 20-279.21(b)(3).\nThe plaintiff was also \u201cusing\u201d the van at the time Wilkerson\u2019s vehicle struck him. At the time of the accident, the plaintiff was helping Leonard change the van\u2019s flat tire. In Whisnant, our Supreme Court recognized that a person \u201cuses\u201d a motor vehicle when he changes a flat tire during a trip. Id. at 308, 141 S.E.2d at 505. This is true because the changing of a tire during a trip is\n\u2018just as much a part of the use of the automobile for that journey as stopping to replenish the gasoline or oil, or for the change of a traffic light, or to remove ice, snow, sleet, or mist from the windshield. By such acts, the journey would not be abandoned. Such adjustments are a part of the use of the automobile \u2014 as much as the manipulation of the mechanism by the operator.\u2019\nId. (citation omitted). Accordingly, though not the driver of the van, the plaintiff was nonetheless \u201cusing\u201d the van both before and at the time of the accident pursuant to N.C.G.S. \u00a7 20-279.21(b)(3). This construction of the verb \u201cuse\u201d is consistent with its ordinary meaning and the legislature\u2019s purpose in seeking \u201cto compensate the innocent victims of financially irresponsible motorists.\u201d Sutton, 325 N.C. at 265, 382 S.E.2d at 763.\nThe defendant argues that this construction of the verb \u201cuse\u201d will render meaningless the \u201cguest in such motor vehicle\u201d provision of N.C.G.S. \u00a7 20-279.21(b)(3). We disagree. Without attempting to define who qualifies as a \u201cguest in such motor vehicle,\u201d we believe that the legislature intended this category of the second class of \u201cpersons insured\u201d to include those people riding in an insured vehicle at the invitation of the driver without any particular purpose. Furthermore, although the defendant would have this Court adopt the position that such a person must actually be \u201cin\u201d the insured vehicle at the time of the accident to be considered a member of the \u201cguest\u201d category, we do not decide the issue. We note, however, that such a narrow construction would appear to violate the remedial purpose of the statute. Sutton, 325 N.C. at 265, 382 S.E.2d at 763.\nIn summary, we hold that the plaintiff is a \u201cperson insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3) for purposes of UIM coverage.\nII\nThe defendant argues that even if the plaintiff is properly found to be a \u201cperson insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3), both the automobile insurance policy and N.C.G.S. \u00a7 20-279.21(b)(4) prohibit the plaintiff from stacking the three $50,000.00 UIM coverages to determine the defendant\u2019s limit of liability. At oral argument the plaintiff conceded, and we agree, that the automobile insurance policy at issue prevents the stacking of multiple coverages in this case. See Harris v. Nationwide Mut. Ins. Co., 103 N.C. App. 101, 108, 404 S.E.2d 499, 503-04, disc. rev. allowed on additional issues, 329 N.C. 788, 408 S.E.2d 521 (1991) (Greene, J., dissenting). Therefore, we must consider whether N.C.G.S. \u00a7 20-279.21(b)(4) permits the plaintiff to intrapolicy stack the UIM coverages to determine the defendant\u2019s limit of liability.\nConsistent with my dissents in Manning v. Tripp, 104 N.C. App. 601, 607, 410 S.E.2d 401, 404 (1991), Amos v. N.C. Farm Bureau Mut. Ins. Co., 103 N.C. App. 629, 632, 406 S.E.2d 652, 653, disc. rev. allowed, 330 N.C. 193, 412 S.E.2d 52 (1991), and Harris, 103 N.C. App. at 109, 404 S.E.2d at 504, I conclude that only \u201cowners\u201d may stack intrapolicy coverages under N.C.G.S. \u00a7 20-279.21(b)(4). Accordingly, I would reverse the trial court\u2019s order allowing the plaintiff, a non-owner, to stack the three $50,000.00 UIM coverages contained in Leonard\u2019s automobile insurance policy. As is apparent from the opinion of Judge Wynn that follows, and the concurrence in it by Judge Parker, my opinion on the issue of stacking is a dissent, and Judge Wynn\u2019s opinion is the majority opinion.\nIn summary, on the issue of coverage, the trial court\u2019s order is affirmed. On the issue of stacking, although I would reverse the trial court\u2019s order, the majority of this panel affirms the trial court\u2019s order.\nAffirmed.\nJudges PARKER and WYNN concur in the above opinion except on the issue of stacking, and as to that issue Judge PARKER concurs in the following opinion of Judge WYNN.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge WYNN\nconcurring in part and dissenting in part.\nI agree with the majority on Section I. However, I respectfully dissent from Section II of Judge Greene\u2019s opinion in which he concludes that N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (1989) does not permit a member of the second class of \u201cpersons insured\u201d to intrapolicy stack UIM coverages to determine an insurer\u2019s limit of liability.\nIn Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, disc. review denied, 316 N.C. 731, 345 S.E.2d 387 (1986), this Court explained the term \u201cperson insured,\u201d\n.In essence, N.C. Gen. Stat. 20-279.21(b)(3) establishes two \u201cclasses\u201d of \u201cpersons insured\u201d: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle.\nId. at 554, 340 S.E.2d at 129-30. A member of the second class is a person insured \u201conly when the insured vehicle is involved in the insured\u2019s injuries.\u201d Smith v. Nationwide Mut. Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47, reh\u2019g denied, 328 N.C. 577, 403 S.E.2d 514 (1991). The statute and cases merely define and develop the \u201cperson insured\u201d; they do not distinguish between the two classes for stacking purposes.\nIn Harris v. Nationwide Mut. Ins. Co., 103 N.C. App. 101, 103, 404 S.E.2d 499, 501 (1991), this Court stated that \u201cthe benefits contemplated under the applicable statutory provisions in N.C. Gen. Stat. \u00a7 20-279.21(b)(4) flow to the insured injured party.\u201d This Court relied on this language in Manning v. Tripp, 104 N.C. App. 601, 410 S.E.2d 401 (1991), and held that a first class \u201cperson insured,\u201d who is not the owner of a vehicle, is entitled to aggregate the limits of liability for UIM coverage. In my opinion, these recent cases establish that stacking of UIM coverage is allowable if an injured party qualifies as a \u201cperson insured\u201d under N.C. Gen. Stat. \u00a7 20-279.21(b)(3). See also Nationwide Mut. Ins. Co. v. Silverman, 104 N.C. App. 783, 411 S.E.2d 153 (1991).", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge WYNN" } ], "attorneys": [ "Duffus & Coleman, by J. David Duffus, Jr., for plaintiff-appellee Andre Leonard.", "No brief filed for plaintiff-appellee Renee Leonard.", "Nichols, Caffrey, Hill, Evans & Murrelle, by Paul D. Coates and Tonola D. Brown, for defendant-appellant." ], "corrections": "", "head_matter": "ANDRE LEONARD and RENEE LEONARD v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY\nNo. 917SC153\n(Filed 17 December 1991)\n1. Appeal and Error \u00a7 119 (NCI4th)\u2014 partial summary judgment \u2014 not immediately appealable\nAn order granting partial summary judgment for plaintiff on the issues of whether plaintiff is covered under his brother\u2019s automobile insurance policy issued by defendant and whether plaintiff is entitled to \u201cstack\u201d the limits of liability of underin-sured motorist coverage under that policy did not affect a substantial right and was not immediately appealable where the alleged tortfeasor\u2019s liability for the accident and plaintiff\u2019s damages have not been determined.\nAm Jur 2d, Appeal and Error \u00a7 104; Summary Judgment \u00a7 40.\n2. Insurance \u00a7 69 (NCI3d)\u2014 underinsured motorist coverage \u2014 changing tire \u2014not occupancy of vehicle\nPlaintiff was not \u201coccupying\u201d his brother\u2019s insured van at the time of an accident and thus was not an \u201cinsured\u201d under the brother\u2019s automobile insurance policy for purposes of underinsured motorist coverage where he was outside the van helping his brother change a flat tire when he was struck by another vehicle.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 312, 314, 322.\n3. Insurance \u00a7 69 (NCI3d)\u2014 underinsured motorist coverage\u2014 changing tire \u2014 use of vehicle \u2014 person insured under statute\nWhere plaintiff was riding to work as a p\u00e1ssenger in his brother\u2019s van and was struck by another vehicle while outside the van helping his brother change a flat tire on the van, plaintiff was \u201cusing\u201d the van both before and at the time of the accident and was thus a member of the second class of \u201cpersons insured\u201d pursuant to N.C.G.S. \u00a7 20-279.21 for purposes of underinsured motorist coverage under his brother\u2019s automobile insurance policy.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 311-314, 332.\n4. Insurance \u00a7 69 (NCI3d)\u2014 underinsured motorist coverage \u2014 second class of persons insured \u2014intrapolicy stacking\nN.C.G.S. \u00a7 20-279.21(b)(4) permits intrapolicy stacking of underinsured motorist coverages to determine an insurer\u2019s limit of liability when the injured person is a member of the second class of \u201cpersons insured\u201d under N.C.G.S. \u00a7 20-279.21(b)(3).\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 326, 329.\nJudge WYNN concurring in part and dissenting in part.\nJudge PARKER concurs in this concurring and dissenting opinion.\nAPPEAL by defendant from order entered 6 December 1990 in NASH County Superior Court by Judge Leon Henderson, Jr. Heard in the Court of Appeals 13 November 1991.\nDuffus & Coleman, by J. David Duffus, Jr., for plaintiff-appellee Andre Leonard.\nNo brief filed for plaintiff-appellee Renee Leonard.\nNichols, Caffrey, Hill, Evans & Murrelle, by Paul D. Coates and Tonola D. Brown, for defendant-appellant." }, "file_name": "0665-01", "first_page_order": 693, "last_page_order": 703 }