{ "id": 8527830, "name": "THOMAS G. EAVES, Plaintiff v. UNIVERSAL UNDERWRITERS GROUP, AMICA MUTUAL INSURANCE COMPANY, and RICHARD GARY SIMS, Defendants", "name_abbreviation": "Eaves v. Universal Underwriters Group", "decision_date": "1992-10-06", "docket_number": "No. 9110SC749", "first_page": "595", "last_page": "600", "citations": [ { "type": "official", "cite": "107 N.C. App. 595" } ], "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": "46 ALR2d 1163", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "67 ALR4th 14", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "332 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506934 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0333-01" ] }, { "cite": "124 F.2d 717", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1090089 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/f2d/124/0717-01" ] }, { "cite": "408 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520858 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0206-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "152 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563605 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0341-01" ] } ], "analysis": { "cardinality": 514, "char_count": 11465, "ocr_confidence": 0.757, "pagerank": { "raw": 2.9454238004238415e-07, "percentile": 0.8484322831176644 }, "sha256": "412859d773ad906644f7d7a94badfb79e1cb8674eb373a0f8e1045e94c6e5c07", "simhash": "1:8d42d4fc844e05af", "word_count": 1764 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and Greene concur." ], "parties": [ "THOMAS G. EAVES, Plaintiff v. UNIVERSAL UNDERWRITERS GROUP, AMICA MUTUAL INSURANCE COMPANY, and RICHARD GARY SIMS, Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nAlthough defendant Universal sets forth three alternative assignments of error for our review, we are limiting our review solely to the dispositive issue of which insurer owes Sims coverage. Universal challenges the trial court\u2019s determination that it was Sims\u2019 primary insurer and ultimately liable for the full coverage limits of its policy. Instead, Universal contends that it owed no insurance coverage to Sims in light of the coverage already afforded him by defendant Arnica. After reviewing the record and controlling case law, we reverse the trial court\u2019s decision.\nIn determining the nature and extent of insurance liability coverage, we must give careful consideration to the construction of the policy terms. Insurance Co. v. Insurance Co., 269 N.C. 341, 152 S.E.2d 436 (1967).\nUniversal\u2019s garage liability policy limits its coverage by the following \u201cMost We Will Pay\u201d clause:\nWith respect to persons or organizations required by law to be an INSURED, the most WE will pay is that portion of such limit needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits after such other insurance has been exhausted.\nBecause Universal\u2019s policy is an owner\u2019s \u201cmotor vehicle liability\u201d policy, its coverage limits must comply with the terms of the Financial Responsibility Act, N.C. Gen. Stat. \u00a7 20-279.21. Universal argues that the \u201cMost We Will Pay\u201d clause effectively limits its coverage to the minimum limits of the Financial Responsibility Act. Next, Universal points to its \u201cOTHER INSURANCE\u201d provision which purports to make its coverage excess or secondary \u201cfor any person or organization who becomes an INSURED under this Coverage Part as required by law.\u201d Universal argues that these two provisions define its policy coverage so as to exclude liability where there is another insurance policy covering the insured and satisfying the minimum limits of the Financial Responsibility Act. Universal reasons that since Arnica\u2019s policy covers the insured and satisfies the minimum coverage requirements of the Act, it owes no coverage to Sims.\nThe problem is that Arnica\u2019s personal liability policy also contains an \u201cOTHER Insurance\u201d provision limiting coverage. The policy stipulates that any insurance Arnica provides for a vehicle the insured does not own shall be excess over any other collectible insurance. Since Sims was not driving a vehicle he owned, Arnica\u2019s \u201cOTHER Insurance\u201d provision applies to the case at hand. The question then becomes, if both Universal\u2019s and Arnica\u2019s policies contain clauses making their insurance excess where other insurance is available, which policy\u2019s terms take precedence?\nUntil recently, our courts have held that the \u201cexcess\u201d language in a non-ownership liability policy such as Arnica\u2019s takes precedence over the excess clause in a garage liability policy like Universal\u2019s policy. Under that interpretation, Universal\u2019s insurance was considered \u201cother collectible insurance\u201d for purposes of excluding Arnica from coverage, but Arnica\u2019s insurance would not constitute \u201cother applicable insurance\u201d which would exempt Universal from coverage. United Services Auto. Assn. v. Universal Underwriters Ins. Co., 104 N.C. App. 206, 408 S.E.2d 876 (1991); see Insurance Co. v. Insurance Co., 269 N.C. 341, 152 S.E.2d 436 (1967).\nIn United Services, our Court faced the precise issue on substantially the same facts as the case before us here. United Services\u2019 policy stipulated under its \u201cOther Insurance\u201d provision that any insurance it provided for a vehicle the insured does not own shall be excess over any other collectible insurance. Universal\u2019s policy also contained an \u201cOTHER INSURANCE\u201d provision purporting to make its coverage excess \u201cfor any person or organization who becomes an INSURED under this Coverage part as required by law.\u201d Universal argued that its garage liability policy coverage, by virtue of its \u201cOTHER Insurance\u201d clause, was rendered secondary to United Services\u2019 personal automobile policy. The court rejected Universal\u2019s position. In interpreting Universal\u2019s \u201cOTHER INSURANCE\u201d provision, the court found the language \u201crequired by law\u201d to be ambiguous and read it out of the policy. It then concluded that after removing the ambiguous language, Universal\u2019s \u201cOTHER INSURANCE\u201d clause clearly provided primary coverage to the insured. Furthermore, the court held that, unlike the language in Universal\u2019s policy, United Services\u2019 non-ownership clause clearly made its policy excess whenever there was other collectible insurance.\nIn the leading case of Zurich General Accident & Liability Ins. Co. v. Clamor, 124 F.2d 717 (1941), the court also interpreted two policies with excess clauses virtually identical to those in question here. In that case, the owner\u2019s policy provided that its coverage did not extend to \u201cany person . . . with respect to any loss against which he has other valid and collectible insurance,\u201d whereas the driver\u2019s policy provided that, as to his use of a non-owned car, the coverage would be \u201cexcess\u201d over other valid and collectible insurance available to him. Id. at 720. The court held that the car owner\u2019s policy was in full force and his insurer was primarily liable because the driver\u2019s excess insurance was not \u201cOTHER INSURANCE\u201d for purposes of setting the owner\u2019s policy limitation into effect.\nOther insurance law authority supports these decisions:\nIt thus has been held that where the owner of an automobile or truck has a policy with an omnibus clause, and the additional insured also has a non-ownership policy which provides that it shall only constitute excess coverage over and above any other valid, collectible insurance, the owner\u2019s insurer has the primary liability.\n8A Appleman, Insurance Law and Practice \u00a7 4909.45 (Emphasis added.)\nRecently, the North Carolina Supreme Court took an entirely different view of existing insurance law in this State by reversing United Services. See United Services Auto. Assn. v. Universal Underwriters Ins. Co., 332 N.C. 333, \u2014 S.E.2d \u2014 (1992). The Supreme Court held that Universal had effectively defined its policy limits to exclude liability in the event there was other collectible insurance which met the minimum standards set by the Financial Responsibility Act. It also found the inclusion by United Services of an \u201cexcess\u201d clause limiting liability where other insurance was available and where the insured was driving a vehicle he did not own, to be immaterial. The Court determined that because the non-ownership policy never said it would not provide coverage if other insurance was available, the insurer automatically contracted for liability under any circumstances, and that Universal, by contrast, had not contracted for any liability in its policy once other insurance was available.\nThus, the precise issue before us has now been decided by the Supreme Court of North Carolina. Required as we are to follow precedent of the Supreme Court, we hold, as we must, that Universal does not provide any coverage to Sims. Accordingly, we reverse the judgment of the trial court and remand the case for judgment consistent with this opinion.\nReversed and remanded.\nJudges ORR and Greene concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Teague, Campbell, Dennis & Gorham, by George W. Dennis, III, for plaintiffappellee.", "Petree Stockton & Robinson, by James H. Kelly, Jr., for defendant-appellant Universal Underwriters Group.", "Young, Moore, Henderson & Alvis, P.A., by Walter E. Brock, Jr. and Knox Proctor, for defendants-appellees AMICA Mutual Insurance Company and Richard Gary Sims." ], "corrections": "", "head_matter": "THOMAS G. EAVES, Plaintiff v. UNIVERSAL UNDERWRITERS GROUP, AMICA MUTUAL INSURANCE COMPANY, and RICHARD GARY SIMS, Defendants\nNo. 9110SC749\n(Filed 6 October 1992)\nInsurance \u00a7 549 (NCI4th)\u2014 two insurance policies \u2014coverage provided by policy of nonowner driver \u2014no coverage provided by owner\u2019s policy\nIn a declaratory judgment action to determine whether insurance coverage was provided by defendant nonowner driver\u2019s personal automobile policy or by the owner\u2019s garage liability policy, the trial court erred in ruling that the owner\u2019s policy provided primary coverage to the driver and that the driver\u2019s policy provided excess coverage, since the non-ownership policy never said it would not provide coverage if other insurance was available and the insurer thus automatically contracted for liability under any circumstances, and the owner\u2019s policy, by contrast, did not contract for any liability in its policy once other insurance was available; therefore, the nonowner driver\u2019s policy provided coverage, while the owner\u2019s policy provided none.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 432, 433.\nAutomobile insurance: umbrella or catastrophe policy automobile liability coverage as affected by primary policy \u201cother insurance\u201d clause. 67 ALR4th 14.\nApportionment of liability between automobile liability insurers one or more of whose policies provide against any liability if there is other insurance. 46 ALR2d 1163.\nAppeal by defendant Universal Underwriters Group from judgment entered 31 May 1991 in WAKE County Superior Court by Judge Robert L. Farmer. Heard in the Court of Appeals 25 August 1992.\nPlaintiff-appellee brought this declaratory judgment action against defendants Arnica Mutual Insurance Company (hereinafter Arnica), Universal Underwriters Group (hereinafter Universal), and Richard Gary Sims (hereinafter Sims), seeking a determination of the extent and order of coverage provided to Sims by the two insurers.\nThe record reveals that the coverage dispute arose out of an automobile accident which occurred on 29 May 1988. Plaintiff was injured when his motorcycle collided with a car owned by Singleton Chevrolet-Buick-Chrysler-Plymouth, Inc. (hereinafter Singleton Chevrolet) and driven by Sims. At the time of the accident, Sims was insured by Arnica under a standard personal automobile liability policy for $300,000, and Singleton Chevrolet had a garage liability policy issued by Universal for $500,000.\nThe facts giving rise to the action are not in dispute. Singleton, one of the owners and officers of Singleton Chevrolet, owned a fishing boat and trailer that was usually towed by a Blazer automobile, a loaner vehicle for the dealership. Prior to the date of the accident, Singleton gave Tommy Leonard (hereinafter Leonard) permission to use the Blazer, the boat and the trailer to go on a fishing trip. Leonard decided to take along his son, his friend Sims, and Sims\u2019 family. On the day of the fishing trip, Leonard was too tired to drive, so he asked Sims to take over the driving for him. At the time of the collision, Sims was operating the vehicle and Leonard was sitting in the passenger seat next to him.\nAll parties moved for summary judgment with regard to the coverage issues. Defendant Universal sought a determination that it provided no coverage to Sims. Defendant Arnica sought a declaration that Universal was the primary insurer up to the limits of its policy or was at least the primary insurer up to the limits required by North Carolina\u2019s Financial Responsibility Act.\nThe trial court granted summary judgment in favor of plaintiff and defendant Arnica. In doing so, the trial court ruled that Universal provided primary coverage to Sims under its policy for $500,000, and Arnica provided excess coverage in the amount of $300,000.\nTeague, Campbell, Dennis & Gorham, by George W. Dennis, III, for plaintiffappellee.\nPetree Stockton & Robinson, by James H. Kelly, Jr., for defendant-appellant Universal Underwriters Group.\nYoung, Moore, Henderson & Alvis, P.A., by Walter E. Brock, Jr. and Knox Proctor, for defendants-appellees AMICA Mutual Insurance Company and Richard Gary Sims." }, "file_name": "0595-01", "first_page_order": 623, "last_page_order": 628 }