{
  "id": 8522051,
  "name": "MARILYN W. BOWSER, Administrator of the Estate of Milton Bernard Bowser, Deceased, Plaintiff v. DEBORAH DELORES WILLIAMS and GLEN ADAM POWELL, Defendants",
  "name_abbreviation": "Bowser v. Williams",
  "decision_date": "1992-11-03",
  "docket_number": "No. 911SC797",
  "first_page": "8",
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    "judges": [
      "Judges Johnson and Parker concur."
    ],
    "parties": [
      "MARILYN W. BOWSER, Administrator of the Estate of Milton Bernard Bowser, Deceased, Plaintiff v. DEBORAH DELORES WILLIAMS and GLEN ADAM POWELL, Defendants"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nBoth Continental and Mann have appealed from the judgment below. We address Continental\u2019s appeal first.\nContinental\u2019s Appeal\nContinental argues that the trial court erred by concluding that its policy provided plaintiff $750,000 UIM coverage. We disagree.\nContinental concedes in its statement of facts contained in its brief as appellant that it provided UM coverage of $25,000 per person and $50,000 per accident on the truck that Mr. Bowser was driving. Continental then states that its \u201cpolicy was not issued with underinsured motorist coverage.\u201d This statement does not withstand close scrutiny of the Continental policy.\nThe Continental policy contains an endorsement on UM coverage. The following language appears at the top of that endorsement: \u201cThis endorsement changes the policy. Please read IT CAREFULLY.\u201d The endorsement then defines uninsured motor vehicle as follows:\nThe definition of \u201cuninsured motor vehicle\u201d in this endorsement applies in its entirety unless an \u201cX\u201d is entered below:\n\u25a1 If an \u201cX\u201d is entered in this box paragraph b. of the definition of \u201cuninsured motor vehicle\u201d does not apply.\nA. Words and phrases with special meaning\n' In addition to the WORDS AND PHRASES WITH SPECIAL MEANING in the policy, the following words and phrases have special meaning for UNINSURED MOTORISTS INSURANCE:\n* * *\n4. \u201cUninsured motor vehicle\u201d means a land motor vehicle or trailer:\n* * *\nb. For which the sum of all bodily injury liability bonds or policies at the time of an accident provides at least the amounts required by the North Carolina Motor Vehicle Safety and Responsibility Act but their limits are less than the limits of this insurance, or ... .\nThe language contained in paragraph b. essentially provides the conventional definition of an underinsured motor vehicle. See Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 420 S.E.2d 124, 126 (1992). There is no \u201cX\u201d in the box which would remove paragraph b. from the definition of an uninsured motor vehicle. Accordingly, Continental\u2019s policy defines uninsured motor vehicle to include an underinsured motor vehicle. It also follows, then, that Continental\u2019s policy purports on its face to provide UIM coverage of $25,000 per person and $50,000 per accident.\n\u201c \u2018The provisions of the Financial Responsibility Act are \u201cwritten\u201d into every automobile liability policy as a matter of law, and, when the terms of the policy conflict with the statute, the provisions of the statute will prevail.\u2019 \u201d Ohio Casualty Ins. Co. v. Leon, 59 N.C. App. 621, 622, 298 S.E.2d 56, 57 (1982), cert. denied, 307 N.C. 698, 301 S.E.2d 101 (1983) (quoting Insurance Co. v. Chantos, 293 N.C. 431, 441, 238 S.E.2d 597, 604 (1977)). \u201cThe primary purpose of the compulsory motor vehicle liability insurance required by North Carolina\u2019s Financial Responsibility Act is to compensate innocent victims who have been injured by financially irresponsible motorists. Furthermore, the Act is to be liberally construed so that the beneficial purpose intended by its enactment may be accomplished.\u201d South Carolina Ins. Co. v. Smith, 67 N.C. App. 632, 636, 313 S.E.2d 856, 860, disc. review denied, 311 N.C. 306, 317 S.E.2d 682 (1984) (citations omitted).\nThe Financial Responsibility Act in G.S. 20-279.21 provides in pertinent part:\n(b) Such owner\u2019s policy of liability insurance:\n\u2756 * *\n(4) Shall, in addition to the coverages set forth in subdivisions (2) and (3) of this subsection, provide underinsured motorists coverage, to be used only with policies that are written at limits that exceed those prescribed by subdivision (2) of this section and that afford uninsured motorist coverage as provided by subdivision (3) of this subsection, in an amount equal to the policy limits for automobile bodily injury liability as specified in the owner\u2019s policy.\n(Emphasis ours.)\nContinental concedes that it provided liability coverage of $750,000, well in excess of that required by subdivision (b)(2). However, Continental argues that their UM coverage was not issued under subsection (3), but was instead issued pursuant to the Reinsurance Facility\u2019s rules. This argument fails. The provisions of the Financial Responsibility Act, including G.S. \u00a7 20-279.21 are written into every automobile liability policy as a matter of law. Accordingly, Continental\u2019s policy provided UM coverage as specified under G.S. 20-279.21.\nEven though Continental\u2019s policy met the statutory requirements for UIM coverage, the policy purports to provide UIM coverage of only $25,000 per person and $50,000 per accident. G.S. \u00a7 20-279.21(b)(4) mandates that where UIM coverage is issued, it must be issued in an amount equal to the liability policy limits for bodily injury. Accordingly, Continental is liable for $750,000 UIM coverage on the truck driven by Mr. Bowser.\nDespite the express language of the policy and the mandate of G.S. \u00a7 20-279.21(b)(4), Continental argues that it did not provide UIM coverage and was not required to obtain a written waiver of UIM coverage pursuant to G.S. \u00a7 20-279.21(b)(4) because its policy was ceded through the Reinsurance Facility. We note, again, that the provisions of the Financial Responsibility Act including G.S. \u00a7 20-279.21(b)(4) are written into every automobile liability policy as a matter of law. G.S. \u00a7 20-279.21(b)(4) requires that when a policy is eligible for UIM coverage, UIM coverage must be issued in an amount equal to bodily injury liability unless a written waiver is obtained. Here, Continental failed to obtain a written waiver of UIM coverage. This omission is fatal to Continental\u2019s appeal. See Proctor v. N.C. Farm Bureau Mutual Ins. Co., 324 N.C. 221, 376 S.E.2d 761 (1989) (insurance company\u2019s failure to comply with former G.S. \u00a7 20-279.21 resulted in UIM coverage in an amount equal to liability coverage). We note in passing that Continental argues that Proctor is distinguishable from the instant case. We disagree and find no merit in this assignment of error.\nHorace Mann\u2019s Appeal\nMann raises two issues on appeal. First, Mann argues that the trial court erred by holding that Continental and Mann were co-primary UIM carriers. Second, Mann argues that the trial court erred by holding that Mann was not entitled to a set off from its UIM coverage to the extent that worker\u2019s compensation benefits are paid to the plaintiff. We address the arguments in tandem.\nI\nIn its first argument Mann contends the trial court erred by ruling that both Mann and Continental provided primary UIM coverage. We agree and reverse.\nBoth the Continental and the Mann policies provide \u201cother insurance\u201d clauses. The Continental clause provides:\nB. Other insurance-primary and excess insurance PROVISIONS.\n1. This policy\u2019s liability coverage is primary for any covered auto while hired or borrowed by you and used exclusively in your business and pursuant to operating rights granted to you by a public authority. This policy\u2019s liability coverage is excess over any other collectible insurance for any covered auto while hired or borrowed from you by another trucker. However, while a covered auto which is a trailer is connected to a power unit, this policy\u2019s liability coverage:\na. Is on the same basis, primary or excess, as for the power unit if the power unit is a covered auto.\nb. Is excess if the power unit is not a covered auto.\n2. Any trailer interchange insurance provided by this policy is primary for any covered auto.\n3. Except as provided in paragraphs 1 and 2 above, this policy provides primary insurance for any covered auto you own and excess insurance for any covered auto you don\u2019t own.\n4. When two or more policies cover on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total of the limits of all the policies covering on the same basis.\n(Emphasis ours.) The Continental policy defines \u201cyou\u201d and \u201cyour\u201d to \u201cmean the person or organization shown as the named insured in ITEM One of the declarations.\u201d Both B & B Lines, Inc. and Cecil Barnes are named insureds. It is undisputed that the tractor trailer involved in the wreck was owned by B & B Lines, Inc.\nThe Mann insurance policy provides:\nOther Insurance\n* * *\nIn addition, if there is other applicable similar 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 with respect to a vehicle you do not own shall be excess over any other collectible insurance.\n(Emphasis ours.) The Mann policy defines \u201cyou\u201d to include the named insured and his spouse. Both Milton Bowser and his wife Marilyn Bowser are named insureds under the Mann policy.\nMann argues that determination of primary and secondary UIM coverage in the instant case is governed by subsections 3 and 4 of Continental\u2019s \u201cother insurance\u201d clause and by the \u201cexcess\u201d clause found in its own \u201cother insurance\u201d provision. Mann contends that the two contracts\u2019 provisions may be read together. We agree.\nContinental argues that the \u201cother insurance\u201d clause in its contract is not applicable here because it did not provide UIM coverage to the plaintiff. Specifically, Continental argues that \u201call references to the Continental \u2018other insurance\u2019 clause refers specifically to the \u2018liability\u2019 coverage that Continental provided . . .\u201d It is true that the plain language of subsection 1 of the \u201cother insurance\u201d clause expressly refers to liability coverage. However, subsection 3 states: \u201c[efxcept as provided in Paragraphs 1 and 2 above, this policy provides primary insurance coverage for any covered auto you own and excess insurance for any covered auto you don\u2019t own.\u201d It is clear from the language of this section that it applies to coverages other than liability coverage. Furthermore, we note that the \u201cother insurance\u201d provision is not contained within Part IV of the Continental policy designated for liability insurance. Rather, the other insurance clause is found in Part VII of the policy titled \u201cCONDITIONS.\u201d It is clear that this section applies to UIM coverage.\nIn Fidelity & Casualty Co. of New York v. North Carolina Farm Bureau Mutual Ins. Co., 16 N.C. App. 194, 192 S.E.2d 113, cert. denied, 282 N.C. 425, 192 S.E.2d 840 (1972), this Court addressed a similar issue. In Fidelity, the Court was confronted with interpretation of an excess clause and a pro rata clause in the context of liability insurance coverage. Id. at 203, 192 S.E.2d at 121. There the court stated:\nThe terms \u201cprorate\u201d and \u201cexcess\u201d do not have, and were not meant by the insurers to have identical meanings. A construction which will give a fair meaning to both terms as used in the \u201cother insurance\u201d clauses is preferable to finding repugnancy.\nId. at 204, 192 S.E.2d at 121. Accordingly, the Court found that the insurance carrier\u2019s policy which contained the pro rata clause provided primary coverage while the carrier\u2019s policy containing the excess clause provided secondary coverage. Id.\nContinental contends that Fidelity is distinguishable from the instant case because it dealt with liability coverage and not UIM coverage. We believe, however, that the Fidelity analysis holds true here despite its origin in the context of liability coverage.\nContinental also argues that this case is controlled by North Carolina Farm Bureau v. Hilliard, 90 N.C. App. 507, 369 S.E.2d 386 (1988). However, Hilliard involved two policies which contained identical \u201cother insurance\u201d provisions. Accordingly, it is factually distinguishable.\nII\nMann next argues that it is entitled to a set off from its UIM coverage to the extent that worker\u2019s compensation benefits are paid or payable to Mr. Bowser\u2019s estate. Mann concedes that two cases have already decided this issue against the position it advocates. See Ohio Casualty Ins. Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990); Sproles v. Green, 100 N.C. App. 96, 394 S.E.2d 691 (1990), affirmed in part, reversed in part, 329 N.C. 603, 407 S.E.2d 497 (1991). Accordingly, we overrule this assignment of error.\nConclusion\nIn conclusion we hold that Continental provides $750,000 UIM coverage on the truck Mr. Bowser was driving; that the Continental policy provides primary UIM coverage; that the Mann policy provides only secondary UIM coverage; and that Mann is not entitled to a set off from its UIM coverage to the extent that worker\u2019s compensation benefits are paid or payable to Mr. Bowser\u2019s estate. Accordingly, we affirm in part and reverse in part.\nAffirmed in part; reversed in part.\nJudges Johnson and Parker concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "C. Everett Thompson, II xmd Ronald G. Penny for plaintiff-appellee Marilyn W. Bowser.",
      "Hedrick, Eatman, Gardner & Kincheloe, by John P. Barringer, for defendant-appellant Continental Insurance Company.",
      "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Theodore B. Smyth, for defendant-appellant Horace Mann Insurance Company."
    ],
    "corrections": "",
    "head_matter": "MARILYN W. BOWSER, Administrator of the Estate of Milton Bernard Bowser, Deceased, Plaintiff v. DEBORAH DELORES WILLIAMS and GLEN ADAM POWELL, Defendants\nNo. 911SC797\n(Filed 3 November 1992)\n1. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 terms of policy \u2014 application of Financial Responsibility Act\nThe trial court did not err in concluding that Continental Insurance Company provided plaintiff $750,000 UIM coverage, since the policy defined uninsured motor vehicle to include an underinsured motor vehicle; the policy provided uninsured motorist coverage as specified under N.C.G.S. \u00a7 20-279.21; and pursuant to N.C.G.S. \u00a7 20-279.21(b)(4) UIM coverage was issued in an amount equal to the liability policy limits for bodily injury, which were $750,000, rather than the UM limits of $25,000 per person and $50,000 per accident.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 293-339.\n2. Insurance \u00a7 551 (NCI4th)\u2014 two insurance companies as primary UIM carriers \u2014one pro rata clause \u2014one excess clause \u2014error\nThe trial court erred in holding that two insurance companies were co-primary UIM carriers, since Continental\u2019s policy which contained a pro rata clause provided primary coverage, while Horace Mann\u2019s policy which contained an excess clause provided secondary coverage.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 326, 329.\nApportionment of liability between liability insurers each of whose policies provide that it shall be \u201cexcess\u201d insurance. 69 ALR2d 1122.\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.\n3. Insurance \u00a7 530 (NCI4th) \u2014 workers\u2019 compensation benefits \u2014 no set off from UIM coverage\nAn insurance company was not entitled to a set off from its UIM coverage to the extent that workers\u2019 compensation benefits were paid or payable to the deceased driver\u2019s estate.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 291, 326, 328, 368.\nUninsured motorist coverage: validity and effect of policy provision purporting to reduce coverage by amount paid under workmen\u2019s compensation law. 24 ALR3d 1369.\nAppeal by defendants from order of judgment entered 21 March 1991 by Judge Thomas S. Watts in GATES County Superior Court. Heard in the Court of Appeals 27 August 1992.\nOn 11 July 1988 the plaintiff\u2019s intestate, Milton Bowser, was driving a tractor trailer truck owned by B & B Lines, Inc. on U.S. Highway 13 in Hertford County. At the same time Deborah Williams was driving a 1975 Buick automobile owned by Glenn Powell. Ms. Williams allegedly pulled her car into the path of Mr. Bowser\u2019s truck from a private driveway. The two vehicles collided. Mr. Bowser died from injuries he received in the accident.\nThe tractor trailer driven by Mr. Bowser was insured by Continental Insurance Company (Continental) under a policy ceded through the North Carolina Reinsurance Facility (Reinsurance Facility). That policy provided liability limits of $750,000 and uninsured motorist (UM) limits of $25,000 per person and $50,000 per accident. Continental contends that its policy did not provide underinsured motorist (UIM) coverage. The car driven by Williams was insured under a policy issued to Powell by State Farm Mutual Automobile Insurance Company (State Farm) with liability limits of $25,000 per person and $50,000 per accident. At the time of the accident, Mr. Bowser also had a personal insurance policy issued by Horace Mann Insurance Company (Mann) which provided liability and UIM limits of $100,000 per person and $300,000 per accident.\nPlaintiff filed suit and subsequently entered into a \u201cRELEASE IN FULL OF ALL CLAIMS\u201d against Williams and Powell in exchange for payment of $25,000 by State Farm to the Administrator of Bowser\u2019s estate. The settlement and release was approved by the trial court on 19 June 1990. On 11 February 1991 the plaintiff filed a motion for summary judgment seeking resolution of whether Continental\u2019s policy provided UIM coverage and the priority of coverage between Continental and Mann. On 13 February 1991 Continental filed a motion for summary judgment seeking inter alia a ruling that Continental\u2019s policy does not provide UIM coverage. Finally, on 25 February 1991 Mann filed a motion for partial summary judgment seeking resolution of these issues and a ruling that if the Mann policy does provide UIM coverage, Mann should receive a set off to the extent any amount was paid or payable by any third parties.\nOn 21 March 1991 the trial court entered an order of summary judgment ruling as follows: (1) the Continental policy provides $750,000 UIM coverage; (2) the Mann policy provides $100,000 of UIM coverage; (3) that as between Continental and Mann any payments available to the plaintiff should be prorated according to their policy limits, including the $25,000 payment by State Farm; and (4) that Continental is entitled to a credit for worker\u2019s compensation benefits received by the plaintiff. From entry of judgment both Continental and Mann appeal.\nC. Everett Thompson, II xmd Ronald G. Penny for plaintiff-appellee Marilyn W. Bowser.\nHedrick, Eatman, Gardner & Kincheloe, by John P. Barringer, for defendant-appellant Continental Insurance Company.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Theodore B. Smyth, for defendant-appellant Horace Mann Insurance Company."
  },
  "file_name": "0008-01",
  "first_page_order": 36,
  "last_page_order": 45
}
