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  "name": "SHERRY S. BOYD, Administratrix D.B.N. of the Estate of PATRICK C. BOYD, JR., Deceased, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, L.G. DEWITT TRUCKING COMPANY, INC. and CHARLIE HARTFORD LOCKLEAR, Defendants",
  "name_abbreviation": "Boyd v. Nationwide Mutual Insurance",
  "decision_date": "1993-01-05",
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    "judges": [
      "Judges WELLS and LEWIS concur."
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    "parties": [
      "SHERRY S. BOYD, Administratrix D.B.N. of the Estate of PATRICK C. BOYD, JR., Deceased, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, L.G. DEWITT TRUCKING COMPANY, INC. and CHARLIE HARTFORD LOCKLEAR, Defendants"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nI\nNationwide first contends that the trial court erred by holding that its business auto policy provided coverage for punitive damages. We disagree.\nThis issue is controlled by Collins and Aikman Corp. v. The Hartford Accident & Indemnity Co., 106 N.C. App. 357, 416 S.E.2d 591 (1992). In Collins, the insurance contract in issue provided:\nThe company will pay on behalf of the insured ultimate net loss in excess of the total applicable limit ... of underlying insurance . . . because of bodily injury, personal injury, property damage or advertising injury to which this insurance applies caused by an occurrence.\nId. at 359, 416 S.E.2d at 592. The Collins contract also included the following pertinent definitions: (1) \u201cUltimate net loss\u201d meant \u201call sums which the insured and his or her insurers shall become legally obligated to pay as damages, whether by final adjudication or settlement . . . (2) \u201c \u2018damages\u2019 include damages for [death] which result[s] at any time from bodily injury to which this policy applies. . . and (3) \u201cBodily injury\u201d was defined as \u201cbodily injury, sickness or disease. . . .\u201d Id. at 360, 416 S.E.2d at 592. Finally, the policy explicitly provided that \u201c \u2018damages\u2019 do not include fines or penalties or damages for which insurance is prohibited by the law applicable to the construction of this policy.\u201d Id.\nOn appeal, this Court was faced with resolution of whether the insurance contract in Collins provided punitive damage coverage, and if so, whether the contract\u2019s express provision that damages did not include \u201cfines or penalties or damages for which insurance is prohibited by the law\u201d excluded punitive damages. In Collins, this Court held that \u201cthe punitive damages arose from and were in consequence of the bodily injuries suffered by the Howards.\u201d Id. at 363, 416 S.E.2d at 594. This Court also held there that the definition of damages did not operate to exclude punitive damages from coverage. The Collins opinion held that \u201c[i]f Hartford \u2018intended to eliminate coverage for punitive damages it could and should have inserted a single provision stating \u201cthis policy does not include recovery for punitive damages.\u201d \u2019 \u201d Id. at 364, 416 S.E.2d at 594 (quoting Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 630, 319 S.E.2d 217, 223 (1984)).\nIn the instant case Nationwide\u2019s business auto policy provides in pertinent part:\nWe will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caus\u00e9d by an accident and resulting from the ownership, maintenance or use of a covered auto.\nThe policy defines bodily injury as \u201cbodily injury, sickness or disease including death resulting from any of these.\u201d The policy does not define the term \u201cdamages.\u201d Finally, an endorsement attached to the business auto policy provides that:\nthe company agrees to pay, within the limits of liability prescribed herein, any final judgment recovered against the insured for bodily injury to or death of any person, . . . resulting from negligence in the operation, maintenance, or use of motor vehicles. . . .\nHere, Nationwide argues (1) in the absence of a definition to the contrary, the term \u201cdamages\u201d does not include punitive damages and (2) the punitive damages awarded to the plaintiff were not damages \u201cbecause of bodily injury\u201d and (3) that the policy at issue in Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 319 S.E.2d 217 (1984) is distinguishable from the policy issued here by Nationwide.\nThe insurance contract provisions at issue in this case are substantively identical to those at issue in Collins. The arguments raised here by Nationwide were addressed by Collins, and were decided against the position that Nationwide advocates. We are bound by the result in Collins. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (One panel of this Court is bound by a prior decision of another panel of this Court addressing the same issue, although in a different case, unless the prior decision has been overturned by a higher court). Accordingly, we hold that the business auto policy here provides coverage for punitive damages.\nII\nNationwide next argues that its commercial umbrella policy does not provide coverage for punitive damages. Nationwide\u2019s commercial umbrella policy provides in pertinent part:\nI. Coverage. The Company will indemnify the Insured for all sums which the Insured shall become legally obligated to pay as damages and expenses, all as hereinafter defined as included within the term ultimate net loss, by reason of liability\n(a) imposed upon the Insured by law, . . . because of\n(a) personal injury, . . . caused by or arising out of each occurrence happening anywhere in the world.\nThe policy defines \u201cultimate net loss\u201d as follows:\n\u201cultimate net loss\u201d means the total of the following sums arising with respect to each occurrence to which this policy applies:\n(a) all sums which the Insured, or any organization as his insurer, or both, becomes legally obligated to pay as damages, whether by reason of adjudication or settlement, because of personal injury, property damage or advertising liability; and\n(b) all expenses incurred by the Insured in the investigation, negotiation, settlement and defense of any claim or suit seeking such damages, excluding only the salaries of the Insured\u2019s regular employees.\nThe policy defines personal injury to include, among other things, \u201cbodily injury, sickness, disease, disability or shock, including death arising at any time therefrom, or, if arising out of the foregoing, mental anguish and mental injury[.]\u201d Finally, an endorsement to the policy provides:\nSubject to all other terms and conditions of the policy, it is understood and agreed that the policy stated below is hereby amended as follows:\nAutomobile Liability \u2014 Following Form\nExcept to the extent coverage is available to the Insured in the underlying policies as set forth in the Schedule of Underlying Insurance, this policy does not apply to Personal Injury or Property Damage arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile while away from premises owned by, rented to, or controlled by the Insured.\nNationwide raises essentially the same arguments here that it raised under the business auto policy. Once again, it is clear that the language of the commercial umbrella policy at issue here is substantively identical to that at issue in Collins. Accordingly, this assignment is overruled as well.\nIll\nNationwide next argues that the parties to the insurance contracts \u201cunderstood that the policies did not provide coverage for punitive damages; [and that] their manifestations of that understanding show that the policies are unambiguous.\u201d We have closely examined this argument and find it to be without merit. Accordingly, it is overruled.\nIV\nNationwide also argues that public policy requires that no punitive damage coverage be afforded, and that Mazza does not control this case. In Collins, this court stated:\nIf the terms of an insurance contract provide coverage for punitive damages, public policy does not prohibit such coverage. Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 631, 319 S.E.2d 217, 223 (1984). Thus, the question presented is whether the terms of the Hartford policy provide coverage for punitive damages.\nCollins, 106 N.C. App. at 362, 416 S.E.2d at 594. Here, based on the holding of Collins, we have determined that the insurance contracts at issue provide coverage for punitive damages. Accordingly, here, as in Collins, we find no public policy to prevent coverage for punitive damages.\nV\nNationwide further argues that both the United States Constitution and the North Carolina Constitution require that our holding be given prospective application only. We do not reach this issue because it is not properly before us.\nNationwide attempts to raise this issue under each of its three assignments of error. Those assignments provide:\n1. The Trial Court\u2019s denial of Nationwide\u2019s Motion to Amend its Answer to allege that any ruling that the insurance policies at issue provide coverage for punitive damages should be applied prospectively only, on the grounds that leave to amend should be freely given when justice requires and amendment would not prejudice the Plaintiff in defending this action.\n2. The trial Court\u2019s grant of Plaintiff\u2019s Motion under N.C.R.Civ.P. 56 for Summary Judgment, on the grounds that the pleadings, discovery and affidavits establish that the policies of insurance do not provide coverage for punitive damages and that the Plaintiff was therefore not entitled to judgment as a matter of law.\n3. The Court\u2019s denial of Nationwide\u2019s Motion under N.C.R.Civ.P. 56 for Summary Judgment, on the grounds that the pleadings, discovery and affidavits establish that the policies of insurance do not provide coverage for punitive damages and that Nationwide was entitled to judgment as a matter of law.\nNone of Nationwide\u2019s assignments purports to raise a constitutional challenge concerning prospective application of the holding of this Court. \u201c[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991).\nAssuming arguendo that Nationwide presented a proper assignment of error raising this issue, we believe that their argument fails. Our Supreme' Court held in Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 319 S.E.2d 217 (1984) that no public policy of this State precluded liability insurance coverage for punitive damages in medical malpractice cases and instructed that \u201c[i]f the insurance carrier to this insurance contract intended to eliminate coverage for punitive damages it could and should have inserted a single provision stating \u2018this policy does not include recovery for punitive damages.\u2019 \u201d Id. at 630, 319 S.E.2d at 223. The holding and instruction of Mazza combined with the time honored proposition that insurance policies are construed against the insurer who selected the language of the contract, sufficiently forewarned Nationwide that if it chose not to be explicit in its policies it might be subject to punitive damages in fields other than medical malpractice. Accordingly, this assignment is overruled.\nVI\nBecause of our disposition of the foregoing issues, we do not reach the remaining arguments presented on appeal.\nAffirmed.\nJudges WELLS and LEWIS concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Leath, Bynum, Kitchin & Neal, P.A., hy Henry L. Kitchin and Stephan R. Futrell; and Etheridge, Moser, Gamer & Bruner, P.A., by Terry R. Garner, for the plaintiff-appellee, Sherry Boyd, Administratrix D.B.N. of the Estate of Patrick C. Boyd, Jr.",
      "LeBoeuf Lamb, Leiby & MacRae, by Peter M. Foley and Kristin K. Eldridge, for the defendant-appellant Nationwide Mutual Insurance Company.",
      "Webb, Lee, Gibson, Webb & Saunders, by Hugh Lee and William R. Webb, Jr., for the defendant-appellees L.G. DeWitt Trucking Company, Inc. and Charlie Hartford Locklear."
    ],
    "corrections": "",
    "head_matter": "SHERRY S. BOYD, Administratrix D.B.N. of the Estate of PATRICK C. BOYD, JR., Deceased, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, L.G. DEWITT TRUCKING COMPANY, INC. and CHARLIE HARTFORD LOCKLEAR, Defendants\nNo. 9120SC1216\n(Filed 5 January 1993)\n1. Insurance \u00a7\u00a7 487, 895 (NCI4th)\u2014 business auto policy \u2014 commercial umbrella policy \u2014coverage of punitive damages\nUnder the decision of Collins & Aikman Corp. v. Hartford Accident & Indemnity Co., 106 N.C. App. 357, 416 S.E.2d 591 (1992), a trucking company\u2019s business auto policy and commercial umbrella policy both provided coverage for punitive damages awarded in a wrongful death action arising from a motor vehicle accident.\nAm Jur 2d, Automobile Insurance \u00a7 427.\nLiability insurance coverage as extending to liability for punitive or exemplary damages. 16 ALR4th 11.\n2. Insurance \u00a7\u00a7 487, 895 (NCI4th)\u2014 business auto policy\u2014 commercial umbrella policy \u2014punitive damages \u2014public policy\nPublic policy does not prohibit the coverage of punitive damages by a business auto policy and a commercial umbrella policy.\nAm Jur 2d, Automobile Insurance \u00a7 427.\n3. Insurance \u00a7\u00a7 487, 895 (NCI4th)\u2014 business auto policy\u2014 commercial umbrella policy \u2014coverage of punitive damages \u2014 decision not required to be prospective\nA holding that a business auto policy and a commercial umbrella policy provided coverage for punitive damages is not constitutionally required to be given only prospective application since a prior decision that punitive damages were covered by medical malpractice insurance and the proposition that insurance policies are construed against the insurer who selected the policy language sufficiently warned defendant insurer that it might be subject to punitive damages in fields other than medical malpractice if its policies did not specifically exclude coverage for punitive damages.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 3, 425; Constitutional Law \u00a7\u00a7 682, 685, 703.\nAppeal by defendant Nationwide Mutual Insurance Company from entry of judgment on 26 August 1991 by Judge James C. Davis in Richmond County Superior Court. Heard in the Court of Appeals 1 December 1992.\nOn 1 July 1985 Nationwide Mutual Insurance Company (Nationwide) issued two policies to L.G. DeWitt Trucking Company Inc. (DeWitt), a \u201cbusiness auto policy,\u201d No. 61-BA-707-398-0001-L, and a \u201ccommercial umbrella liability policy,\u201d No. 61-CU-707-398-0004L. The parties stipulated that both policies were in full force and effect on 16 July 1985.\nOn 16 July 1985 the individual defendant, Charlie Locklear, was driving a tractor-trailer owned by DeWitt when he was involved in a collision with a vehicle operated by plaintiff\u2019s decedent, Patrick Boyd, Jr. As a result of the collision Patrick Boyd, Jr. and another passenger were killed. A third passenger was injured. The parties stipulated that Locklear was an agent of DeWitt acting within the course and scope of his authority at the time of the collision.\nThe plaintiff filed a wrongful death action against both DeWitt and Locklear. On 23 March 1990 a jury returned a verdict in favor of the plaintiffs awarding $869,200.00 in compensatory damages, $500,000.00 in punitive damages against DeWitt and Locklear jointly and severally and punitive damages of $3,500,000.00 against DeWitt. On 21 June 1990 the plaintiff filed a petition for declaratory judgment seeking determination of whether Nationwide\u2019s policies provided coverage for punitive damages. Plaintiff later filed a motion for summary judgment on 29 July 1991. Nationwide filed its own motion for summary judgment on 2 August 1991. On 26 August 1991 the trial court entered summary judgment in favor of the plaintiff holding that Nationwide\u2019s policies afforded $2,689,222.00 coverage for punitive damages ($1,689,222.00 under the business auto policy and $1,000,000.00 under the commercial umbrella policy).\nNationwide appeals.\nLeath, Bynum, Kitchin & Neal, P.A., hy Henry L. Kitchin and Stephan R. Futrell; and Etheridge, Moser, Gamer & Bruner, P.A., by Terry R. Garner, for the plaintiff-appellee, Sherry Boyd, Administratrix D.B.N. of the Estate of Patrick C. Boyd, Jr.\nLeBoeuf Lamb, Leiby & MacRae, by Peter M. Foley and Kristin K. Eldridge, for the defendant-appellant Nationwide Mutual Insurance Company.\nWebb, Lee, Gibson, Webb & Saunders, by Hugh Lee and William R. Webb, Jr., for the defendant-appellees L.G. DeWitt Trucking Company, Inc. and Charlie Hartford Locklear."
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