{
  "id": 8525287,
  "name": "ELIJAH TOM TURNAGE, Guardian Ad Litem for THOMAS PAUL TURNAGE, and ELIJAH TOM TURNAGE, Individually, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant",
  "name_abbreviation": "Turnage v. Nationwide Mutual Insurance",
  "decision_date": "1993-03-02",
  "docket_number": "No. 913SC995",
  "first_page": "300",
  "last_page": "303",
  "citations": [
    {
      "type": "official",
      "cite": "109 N.C. App. 300"
    }
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  "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": "358 S.E.2d 92",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1987,
      "opinion_index": 0
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    {
      "cite": "86 N.C. App. 466",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        12134273
      ],
      "year": 1987,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/86/0466-01"
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    {
      "cite": "61 J 307239",
      "category": "reporters:state",
      "reporter": "Johns.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T20:43:31.464788+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges WELLS and EAGLES concur."
    ],
    "parties": [
      "ELIJAH TOM TURNAGE, Guardian Ad Litem for THOMAS PAUL TURNAGE, and ELIJAH TOM TURNAGE, Individually, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nThe question presented by this appeal is whether or not under these facts an uninsured motorist carrier is liable for attorney\u2019s fees and costs in tort actions though not a named defendant in those tort actions. We answer in the affirmative.\nThe plaintiff, individually and as guardian ad litem for his son, brought tort actions against Phines James McDowell for bodily injuries and for medical bills. Thomas Paul Turnage, who was a minor at the time, was involved in an automobile accident with McDowell, an uninsured motorist. Thomas Paul Turnage and his father Elijah Tom Turnage were insured under a policy by Nationwide Mutual Insurance Company (hereinafter \u201cNationwide\u201d). This policy provided uninsured motorist coverage (\u201cUM\u201d) with limits of $50,000.00 per person, $100,000.00 per accident.\nNationwide defended McDowell in the tort actions pursuant to N.C.G.S. \u00a7 20-279.21 (Cum. Supp. 1992). The jury found for plaintiff and awarded damages for both the personal injuries and the resulting medical bills. Plaintiff also sought to recover his attorney\u2019s fees under N.C.G.S. \u00a7 6-21.1 (1986). On 19 September 1990 Judge Herbert 0. Phillips, III entered an order allowing the plaintiff to recover his attorney\u2019s fees and costs.\nNationwide paid the damages ordered by the court in the tort actions, but refused to pay the attorney\u2019s fees and costs. Therefore, on 8 November 1990 plaintiff brought a declaratory action against Nationwide, seeking a ruling that the defendant was liable for the fees and costs assessed against it in the tort actions. Both parties in the action filed motions for summary judgment with the court. The trial court denied defendant\u2019s motion and granted the plaintiff\u2019s motion. The defendant appeals.\nDefendant argues that the policy it issued to the Turnages \u2014 policy number 61 J 307239 \u2014controls the disposition of this case. Defendant\u2019s argument focuses on a rather narrow and literal reading of the language of the policy. In the \u201cLiability Coverage\u201d section of the policy, Nationwide specifically agreed to pay for costs incurred in the defense of suits seeking damages for bodily injury or property damage. However, no such language exists in the \u201cUninsured Motorist Coverage\u201d section. Nationwide contends the contract obligates it only for \u201cdamages which a covered person is legally entitled to recover.\u201d\nFurther, defendant argues, the UM section of the policy does not include a \u201cSupplementary Payments\u201d provision as does the liability section. \u201cSupplementary payments\u201d include other costs additional to its limit of liability such as bail bonds and premiums on appeal bonds, interest, loss of earnings up to $50.00 a day, emergency first aid expenses to others at the accident, and other reasonable expenses. Defendant argues that because the UM section includes neither this provision nor the language obligating it to pay costs, the parties clearly did not intend that Nationwide be liable for anything other than damages in a UM action.\nNationwide argues that it is the language of the policy and the underlying intention of the parties that are controlling, not N.C.G.S. \u00a7 6-21.1. This statute allows attorney\u2019s fees to be awarded in \u201csuit[s] against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff.\u201d N.C.G.S. \u00a7 6-21.1 (1986) (emphasis added). Nationwide contends that it was not a defendant in the tort actions, and therefore attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-21.1 cannot be assessed against it.\nIn this case Nationwide utilized N.C.G.S. \u00a7 20-279.21(b)(3)a to provide a defense to the uninsured defendant. Under that statute, an insurer, if given proper notice, \u201cshall be a party to the action between the insured and the uninsured motorist though not named in the caption of the pleadings and may defend the suit in the name of the uninsured motorist or in its own name.\u201d N.C.G.S. \u00a7 20-279.21(b)(3)a (Cum. Supp. 1992). It is clear to us that Nationwide was indeed a party, and can properly be characterized as a defendant de facto and de jure, though unnamed. The trial court did not err when it held that N.C.G.S. \u00a7 6-21.1 applies and controls this case. Defendant contends that it was error for the trial court to hold it responsible for fees, costs, and interest because the order held \u201cthe Defendant\u201d liable therefor. We reiterate that pursuant to N.C.G.S. \u00a7 20-279.21(b)(3)a Nationwide was a party in the tort actions, although unnamed. Nationwide was not required to defend the lawsuit, but chose to do so, and by so doing became a defendant.\nThe award of attorney\u2019s fees under N.C.G.S. \u00a7 6-21.1 is discretionary with the trial judge, and such an award will not be overturned absent a showing of abuse. Whitfield v. Nationwide Mut. Ins. Co., 86 N.C. App. 466, 358 S.E.2d 92 (1987). Even though the trial judge erroneously concluded in his order that Nationwide was not a defendant in the tort actions, this cannot be construed as an abuse of discretion. We therefore, for the foregoing reasons, uphold the trial court\u2019s award of attorney\u2019s fees and costs against Nationwide.\nAffirmed.\nJudges WELLS and EAGLES concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Hiram J. Mayo, Jr. for plaintiff-appellee.",
      "LeBoeuf, Lamb, Leiby & MacRae, by Peter M. Foley and Stephanie Hutchins Autry, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "ELIJAH TOM TURNAGE, Guardian Ad Litem for THOMAS PAUL TURNAGE, and ELIJAH TOM TURNAGE, Individually, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant\nNo. 913SC995\n(Filed 2 March 1993)\nCosts \u00a7 35 (NCI4th)\u2014 defense by UM carrier \u2014 liability for attorney\u2019s fees and costs\nAn uninsured motorist carrier which defended the uninsured motorist in a tort action pursuant to N.C.G.S. \u00a7 20-279.21(b)(3)a may be required to pay attorney\u2019s fees under N.C.G.S. \u00a7 6-21.1 and other costs in the action even though not named a defendant since the UM carrier was a party to the action pursuant to N.C.G.S. \u00a7 20-279.21(b)(3)a though not named in the caption of the pleadings.\nAm Jur 2d, Automobile Insurance \u00a7 311.\nAppeal by defendant from order granting plaintiff\u2019s motion for summary judgment entered 22 July 1991 by Judge G. K. Butterfield in Craven County Superior Court. Heard in the Court of Appeals 17 November 1992.\nHiram J. Mayo, Jr. for plaintiff-appellee.\nLeBoeuf, Lamb, Leiby & MacRae, by Peter M. Foley and Stephanie Hutchins Autry, for defendant-appellant."
  },
  "file_name": "0300-01",
  "first_page_order": 328,
  "last_page_order": 331
}