{ "id": 8524340, "name": "THE AETNA CASUALTY AND SURETY COMPANY v. LARRY DENNIS FIELDS, MARY LOU SILVERS, DONNA MARIE BEAM, EDWARD NORMAN PETERSON, VIRGINIA ROBINSON BUCHANAN, LINDA CATHERINE HOLLOWAY, JANICE GROVE, BARBARA ANN BUCHANAN, HAZEL VIRGINIA FOX, TINA LEIGH McPETERS, and FRANCIS LOUISE WILSON", "name_abbreviation": "Aetna Casualty & Surety Co. v. Fields", "decision_date": "1992-03-03", "docket_number": "No. 9126SC175", "first_page": "563", "last_page": "569", "citations": [ { "type": "official", "cite": "105 N.C. App. 563" } ], "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": "25 ALR4th 896", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "158 S.E. 386", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1931, "opinion_index": 0 }, { "cite": "200 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625785 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/200/0722-01" ] }, { "cite": "127 So.2d 220", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9859505 ], "year": 1961, "pin_cites": [ { "parenthetical": "Commercial automobile has a meaning readily ascertainable in the plain, ordinary, and popular sense of the language used, and truck used for transporting pulpwood for sale was a commercial automobile." } ], "opinion_index": 0, "case_paths": [ "/so2d/127/0220-01" ] }, { "cite": "119 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "648" }, { "page": "648" } ], "opinion_index": 0 }, { "cite": "254 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627665 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "656" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0651-01" ] }, { "cite": "53 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "parenthetical": "Operating a restaurant or dining-room for profit is a commercial activity, as it is an undertaking relating to commerce or trade." } ], "opinion_index": 0 }, { "cite": "230 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630265 ], "year": 1949, "pin_cites": [ { "parenthetical": "Operating a restaurant or dining-room for profit is a commercial activity, as it is an undertaking relating to commerce or trade." } ], "opinion_index": 0, "case_paths": [ "/nc/230/0404-01" ] }, { "cite": "345 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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, "opinion_index": 0 }, { "cite": "79 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521993 ], "year": 1986, "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", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "266 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] } ], "analysis": { "cardinality": 704, "char_count": 14329, "ocr_confidence": 0.774, "pagerank": { "raw": 3.6265619899462544e-07, "percentile": 0.888929238731679 }, "sha256": "a167d5a9eb68c61d988e182d171438110dca3627b38ef0b9a4ac130cd0c8d96b", "simhash": "1:b555d39e34aac211", "word_count": 2293 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Orr concur." ], "parties": [ "THE AETNA CASUALTY AND SURETY COMPANY v. LARRY DENNIS FIELDS, MARY LOU SILVERS, DONNA MARIE BEAM, EDWARD NORMAN PETERSON, VIRGINIA ROBINSON BUCHANAN, LINDA CATHERINE HOLLOWAY, JANICE GROVE, BARBARA ANN BUCHANAN, HAZEL VIRGINIA FOX, TINA LEIGH McPETERS, and FRANCIS LOUISE WILSON" ], "opinions": [ { "text": "JOHNSON, Judge.\nAppellee, The Aetna Casualty and Surety Company, (hereinafter Aetna), issued a policy of business auto coverage to Mayland Transportation, Incorporated, (hereinafter Mayland), with a policy period from 7 August 1988 through 7 August 1989, providing coverage for liability, uninsured motorists, and underinsured motorists. The vehicles covered were four 15 passenger Dodge vans. The limits of bodily injury liability were $100,000 for each person and $300,000 for each accident. The underinsured motorist coverage had the same limits.\nMayland is a for profit North Carolina corporation with its principal place of business in Spruce Pines, North Carolina. Its sole business is that of transporting employees of Baxter Health Care to and from their residences to Baxter\u2019s place of business near Marion, North Carolina, for a fee. The drivers of the vans were also Baxter employees, and received free transportation and a salary of $65 per month from Mayland. The other employees paid a fee based on the distance of their homes from Baxter.\nFortner Insurance Agency, Inc. wrote the policy. The risk was ceded to the North Carolina Reinsurance Facility. Because the passengers were charged, the drivers and passengers were transported to the same place of employment, and the vans were not furnished by the employer, Fortner rated the risk under the \u201cvan pool\u201d classification contained in the Facility\u2019s \u201cCommercial Automobile Manual of Rules and Rates.\u201d The Manual defines van pools as \u201c[a]n automobile of the station wagon, van truck, or bus type used to provide prearranged commuter transportation for employees to and from work and is not otherwise used to transport passengers for a charge.\u201d\nOn 12 May 1989, one of the insured vehicles was being driven by appellant Fields to transport the other appellants to Baxter. The insured vehicle was involved in a collision with an automobile, and as a proximate result of the negligence of the driver of the automobile, all the appellants sustained severe bodily injuries. The negligent driver of the automobile had liability insurance with Nationwide Mutual Insurance Company, with liability limits in the aggregate amount of $100,000 for all claims arising out of any one accident. Aetna admits that each appellant sustained compen-sable damages in excess of all sums available from the Nationwide policy, and any other liability insurance policies or bonds applicable to their claims. Thus, appellants seek to \u201cstack\u201d the underinsured coverages for each of Mayland\u2019s four vans.\nEach appellant has made claims upon Aetna for benefits under the underinsured motorist provision of the policy. Aetna admits that it is liable to appellants but contends that its aggregate limit of $300,000 applies. Aetna denies that the law requires intra-policy stacking of the aggregate limits of U.I.M. coverage of all four vans insured under its policy.\nThe issue on appeal is whether the trial court correctly granted summary judgment for plaintiff. Summary judgment is properly granted if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to summary judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). In granting summary judgment for Aetna, the trial court held that Aetna\u2019s maximum liability is limited to $100,000 for any one claimant and $300,000 for any one accident, regardless of the number of vehicles or insureds covered by the policy, or claims made pursuant to the policy.\nFirst, we note that appellants and appellee raise issues as to whether the appellants, as class 1 or class 2 insureds, can avail themselves of intra-policy stacking. See Sutton v. Aetna, 325 N.C. 259, 382 S.E.2d 759, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989); See also Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, cert. denied, 316 N.C. 731, 345 S.E.2d 387 (1986). Our disposition of whether stacking is allowed in the case sub judice, however, does not rest upon the classification of the insureds, but rather upon the type of vehicle the insureds were occupying at the time of the accident.\nGeneral Statute \u00a7 20-279.21(b)(4) instructs this Court as to whether intra-policy stacking for underinsured motorist coverage is applicable to any claim:\nIn any event, the limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant pursuant to the exhausted liability policy and the total limits of the owner\u2019s underinsured motorist coverages provided in the owner\u2019s policies of insurance; it being the intent of this paragraph to provide to the owner, in instances where more than one policy may apply, the benefit of all limits of liability of underinsured motorist coverage under all such policies: Provided that this paragraph shall apply only to nonfleet private passenger motor vehicle insurance as defined in G.S. \u00a7 58-^0-15(9) and (10). (Emphasis added).\nThe language of this statute makes it clear that intra-policy stacking is only available when the coverage is nonfleet and the vehicle covered is of the private passenger type.\nGeneral Statute \u00a7 58-40-10(2) provides that fleet coverage is available only if five or more vehicles are owned by a named insured. Aetna\u2019s policy afforded coverage for only four vans; therefore, the first requirement of G.S. \u00a7 20-279.21(b)(4) is met. Although the vans are by definition nonfleet, they are not of the private passenger type also required by the statute. General Statute \u00a7 58-40-10(l)a, b and c state that a private passenger motor vehicle means:\na. A motor vehicle of the private passenger or station wagon type that is owned or hired under a long-term contract by the policy named insured and that is neither used as a public or livery conveyance for passengers nor rented to others without a driver; or\nb. A motor vehicle with a pickup body, a delivery sedan or a panel truck that is owned by an individual or by husband and wife who are residents of the same household and that is not customarily used in the occupation, profession, or business of the insured other than farming or ranching. Such vehicles owned by a family farm co-partnership or corporation shall be considered owned by an individual for purposes of this Article; or\nc. A motorcycle, motorized scooter or other similar vehicle not used for commercial purposes.\nWe find that the insured vehicle in question was not a private passenger vehicle because its use was commercial. Black\u2019s Law Dictionary defines commercial as \u201cconnected with trade and traffic or commerce in general; occupied with business and commerce.\u201d 245 (5th ed. 1979). Commercial use has also been defined as \u201chaving financial profit as the primary aim.\u201d 15A C.J.S. 1 (1979). In its broad sense, \u201ccommercial\u201d encompasses \u201call business and industrial enterprises, and in a comprehensive sense it includes occupations and recognized forms of business enterprise which do not necessarily involve trading in merchandise[.]\u201d Id. Commercial activity in its broad sense \u201cincludes any type of business activity which is carried on for a profit.\u201d Id. at 2; See Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949) (Operating a restaurant or dining-room for profit is a commercial activity, as it is an undertaking relating to commerce or trade.).\nThe North Carolina Supreme Court stated in Kirk v. Insurance Co., 254 N.C. 651, 656, 119 S.E.2d 645, 648 (1961), that the test as to whether an automobile is commercial \u201cis the character of the use of the vehicle taken into consideration with the form of the car.\u201d In Kirk, the Court held that the truck in question, used principally in the business of Southern Railway Co., was a commercial automobile. Id.; See Hardee v. Southern Farm Bureau Casualty Ins. Co., 127 So.2d 220 (1961) (Commercial automobile has a meaning readily ascertainable in the plain, ordinary, and popular sense of the language used, and truck used for transporting pulpwood for sale was a commercial automobile.). The Kirk Court also opined, \u201cThe words \u2018commercial use\u2019 connote use in a business in which one is engaged for profit.\u201d 254 N.C. at 656, 119 S.E.2d at 648.\nIn Lloyd v. Insurance Co., 200 N.C. 722, 158 S.E. 386, (1931), the insurance policy included a provision for indemnity for fatal injury sustained while riding in or driving in a pleasure type automobile. The vehicle in question was a IV2 ton Ford truck used principally on a milk route. The Court found that the vehicle was by intention, use, and construction a commercial vehicle. Coverage was denied, as the vehicle was not of the pleasure type specified in the policy provision. Id.\nIn the case sub judice, Mayland was a for profit organization, created solely for the purpose of transporting Baxter\u2019s employees for a fee. The use of the van generated profit for the business, and without such use, no business would have existed. The only purpose for which Mayland existed was to provide transportation for Baxter\u2019s employees. Mayland\u2019s use of the insured van provided a service for a fee and thereby generated a profit. As in Lloyd, the van in the case sub judice was by intention, use, and construction a commercial vehicle, as it was engaged in a business for profit.\nTo further illustrate that the vehicle in question is not of the private passenger type required by statute, we look to G.S. \u00a7 20-4.01(27)(g). There, the General Assembly defined \u201cprivate passenger vehicles\u201d as \u201c[a]ll other passenger vehicles not included in the above definitions.\u201d Included in the \u201cabove definitions\u201d is a \u201cfor hire passenger vehicle.\u201d G.S. \u00a7 20-4.01(27)(b) defines \u201cfor hire passenger vehicles\u201d as:\nVehicles transporting persons for compensation. This classification shall not include vehicles operated as ambulances; vehicles operated by the owner where the costs of operation are shared by the passengers; vehicles operated on behalf of any employer pursuant to a ridesharing arrangement as defined in G.S. 136-44.21; vehicles transporting students for the public school system under contract with the State Board of Education or vehicles leased to the United States of America or any of its agencies on a nonprofit basis; or vehicles used for human service or volunteer transportation.\nThe ridesharing exception found in G.S. \u00a7 136-44.21 does not apply in this case because to constitute ridesharing, the transportation must be \u201cincidental to another purpose of the driver\u201d and \u201cnot operated or provided for profit.\u201d Here, appellants concede that Mayland Transportation, Inc. operated the vans exclusively for transporting employees to and from work at Baxter Health Care. Thus, the vehicle in question fails to meet the threshold requirement of G.S. \u00a7 20-279.21(b)(4) which requires vehicles to be of the private passenger type before intra-policy stacking can occur.\nIn addition, the policy in question is by acknowledgement of all parties captioned \u201cBusiness Auto Coverage Form\u201d and appears on its face to be a type of insurance coverage that is excluded from the stacking provisions of G.S. \u00a7 20-279.21(b)(4) which covers only nonfleet private passenger motor vehicle insurance.\nAccordingly, defendants-appellants are denied the benefits of stacking because the insured vehicle is not of the private passenger type required by G.S. \u00a7 20-279.21(b)(4). Under the facts of this case, the law does not require intra-policy stacking. The decision of the trial court limiting Aetna\u2019s liability for underinsurance coverage to $300,000 is therefore\nAffirmed.\nJudges Eagles and Orr concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Bailey and Bailey, by G. D. Bailey and J. Todd Bailey, for defendant-appellant, Virginia Robinson Buchanan.", "Duffus & Coleman, by Robert C. Younce, Jr., for defendants-appellants, Larry Dennis Fields, Edward Norman Peterson, and Mary Lou Silvers.", "Donny J. Laws for defendant-appellant, Janice Grove.", "Elmore & Powell, P.A., by Bruce A. Elmore, Jr., for defendants-appellants, Tina Leigh McPeters and Linda Catherine Holloway.", "Norris & Peterson, P.A., by Staunton Norris, for defendant-appellant, Francis Louise Wilson.", "Scott E. Jarvis & Associates, by Scott E. Jarvis, for defendants-appellees, Donna Marie Beam, Barbara Ann Buchanan, and Hazel Virginia Fox.", "Underwood Kinsey Warren & Tucker, P.A., by Kenneth S. Cannaday and Frank W. Snepp, for plaintiff-appellee." ], "corrections": "", "head_matter": "THE AETNA CASUALTY AND SURETY COMPANY v. LARRY DENNIS FIELDS, MARY LOU SILVERS, DONNA MARIE BEAM, EDWARD NORMAN PETERSON, VIRGINIA ROBINSON BUCHANAN, LINDA CATHERINE HOLLOWAY, JANICE GROVE, BARBARA ANN BUCHANAN, HAZEL VIRGINIA FOX, TINA LEIGH McPETERS, and FRANCIS LOUISE WILSON\nNo. 9126SC175\n(Filed 3 March 1992)\nInsurance \u00a7 69 (NCI3d)\u2014 automobile insurance \u2014 underinsured coverage \u2014 stacking\u2014not a private passenger vehicle\nSummary judgment was correctly granted for plaintiff insurance company in an action arising from an accident involving a van transporting defendants to work where the van in which defendants were riding when injured was owned by Mayland Transportation and insured by Aetna; Mayland\u2019s sole business was transporting employees of Baxter Health Care to and from Baxter\u2019s place of business; the policy issued by Aetna covered four 15 passenger vans; and defendants sought to stack UIM coverage. The language of N.C.G.S. \u00a7 20-279.21(b)(4) makes it clear that intra-policy stacking is only available when the coverage is nonfleet and the vehicle is of the private passenger type. Although the vans are by definition nonfleet because N.C.G.S. \u00a7 58-40-10(2) provides that fleet coverage is available only if five or more vehicles are owned by a named insured, the insured vehicle here was not a private passenger vehicle because its use was commercial.\nAm Jur 2d, Automobile Insurance \u00a7 329.\nCombining or \u201cstacking\u201d uninsured motorist coverages provided in fleet policy. 25 ALR4th 896.\nAPPEAL by defendants from order entered 5 December 1990, by Judge Chase B. Saunders, in MECKLENBURG County Superior Court. Heard in the Court of Appeals 14 November 1991.\nThe order entered allowed plaintiff\u2019s motion for summary judgment and declared underinsurance coverage of $100,000 available to any single defendant and $300,000 for all appellants in this accident.\nBailey and Bailey, by G. D. Bailey and J. Todd Bailey, for defendant-appellant, Virginia Robinson Buchanan.\nDuffus & Coleman, by Robert C. Younce, Jr., for defendants-appellants, Larry Dennis Fields, Edward Norman Peterson, and Mary Lou Silvers.\nDonny J. Laws for defendant-appellant, Janice Grove.\nElmore & Powell, P.A., by Bruce A. Elmore, Jr., for defendants-appellants, Tina Leigh McPeters and Linda Catherine Holloway.\nNorris & Peterson, P.A., by Staunton Norris, for defendant-appellant, Francis Louise Wilson.\nScott E. Jarvis & Associates, by Scott E. Jarvis, for defendants-appellees, Donna Marie Beam, Barbara Ann Buchanan, and Hazel Virginia Fox.\nUnderwood Kinsey Warren & Tucker, P.A., by Kenneth S. Cannaday and Frank W. Snepp, for plaintiff-appellee." }, "file_name": "0563-01", "first_page_order": 591, "last_page_order": 597 }