{
  "id": 8521168,
  "name": "SHANTA' L. RAY and GEORGE STANLEY ROYAL, JR., by his Guardian Ad Litem, RICHARD M. PRICE and SAUDRA BARBOUR v. ATLANTIC CASUALTY INSURANCE COMPANY, a North Carolina Corporation",
  "name_abbreviation": "Ray v. Atlantic Casualty Insurance",
  "decision_date": "1993-10-05",
  "docket_number": "No. 9211SC1013",
  "first_page": "259",
  "last_page": "262",
  "citations": [
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      "cite": "112 N.C. App. 259"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:specialty",
      "reporter": "A.L.R. 4th",
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      "year": 1992,
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      "cite": "332 N.C. 184",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1992,
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          "page": "188"
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    {
      "cite": "N.C. Gen. Stat. \u00a7 20-279.21",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "weight": 2,
      "pin_cites": [
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          "page": "(b)(4)"
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          "page": "(b)(4)"
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  "last_updated": "2023-07-14T15:48:17.524906+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges EAGLES and ORR concur."
    ],
    "parties": [
      "SHANTA\u2019 L. RAY and GEORGE STANLEY ROYAL, JR., by his Guardian Ad Litem, RICHARD M. PRICE and SAUDRA BARBOUR v. ATLANTIC CASUALTY INSURANCE COMPANY, a North Carolina Corporation"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nShanta\u2019 L. Ray (Ray), George Stanley Royal, Jr. (Royal), and Saudra Barbour (Barbour) appeal from an order entered 21 August 1992, granting Atlantic Casualty Insurance Company\u2019s (Atlantic Casualty) motion for summary judgment because \u201cthere is no underin-sured motorist coverage as a matter of law.\u201d\nThe parties stipulated to these facts: On 16 September 1988, Ray was driving her 1986 Dodge in Johnston County, North Carolina. Royal, Ray\u2019s one-year-old son, and Barbour were occupants in Ray\u2019s Dodge. Around 7:00 p.m., they were involved in a head-on collision with a 1976 Chevrolet Camaro owned and operated by Ronnie Rufus Pollard, Jr. (tortfeasor). Randy Hall (Hall) was an occupant in the Camaro which allegedly crossed the centerline and hit Ray\u2019s car head-on in its own lane of travel.\nAt the time of the collision, Aetna Insurance Company (Aetna) insured the tortfeasor under an automobile liability policy with limits of liability of $100,000 per person for bodily injury, $300,000 per occurrence for bodily injury, and $50,000 for property damage. Atlantic Casualty insured Ray at the time of the collision under automobile liability insurance policy No. 001-455514. The policy insured one vehicle, the 1986 Dodge involved in the collision, and provided underinsured policy limits for bodily injury in the amount of $100,000 per person and $300,000 per accident.\nAetna settled Hall\u2019s claim for $99,000. Of this amount, $1,000 was paid from the medical payments provision and $98,000 was paid from the liability coverage provision of the Aetna policy insuring the tortfeasor\u2019s car. Therefore, $202,000 of the Aetna per occurrence liability coverage is available to Ray, Royal, and Barbour.\nOn 5 September 1991, Ray and Royal, by his guardian ad litem Richard M. Price, filed a complaint against Atlantic Casualty in Johnston County Superior Court under the North Carolina Declaratory Judgment Act, seeking a declaratory judgment that Atlantic Casualty\u2019s liability insurance policy provides for underin-sured motorist (UIM) coverage for Ray and Royal in the amount of $98,000. Pursuant to a Consent Order dated 5 February 1992, Ray and Royal filed an amended complaint on 13 February 1992 identical to the original complaint with the exception of adding Barbour as an additional party plaintiff.\nOn 14 April 1992, Atlantic Casualty moved for and was granted summary judgment based on the pleadings, responses to request for production of documents, and affidavits.\nThe single issue is whether an underinsured vehicle, as that term is used in N.C. Gen. Stat. \u00a7 20-279.21(b)(4), includes a tort-feasor\u2019s vehicle whose available liability insurance is less than the relevant UIM coverage.\nUIM coverage applies under Section 20-279.21(b)(4) when \u201call liability bonds or insurance policies providing coverage for bodily injury caused by . . . the underinsured highway vehicle have been exhausted.\u201d N.C.G.S. \u00a7 20-279.21(b)(4) (Supp. 1989) (emphasis added). Thus, UIM coverage under Atlantic Casualty\u2019s policy necessarily depends on whether the tortfeasor\u2019s vehicle is an underinsured highway vehicle.\nAn underinsured highway vehicle is N.C.G.S. \u00a7 20-279.21(b)(4) (emphasis added). Construing this statute, our Supreme Court has held that the appropriate comparison is between the tortfeasor\u2019s liability coverage and the victim\u2019s UIM coverage. Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 188, 420 S.E.2d 124, 127 (1992). That is, if the tortfeasor\u2019s liability coverage is less than the UIM coverage, the tortfeasor\u2019s vehicle is an underinsured vehicle. Under the plain language of N.C. Gen. Stat. \u00a7 20-279.21(b)(4), the comparison between the tortfeasor\u2019s liability coverage and the UIM coverage is to be made \u201cat the time of the accident.\u201d N.C.G.S. \u00a7 20-279.21(b)(4).\na highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the owner\u2019s policy.\nPlaintiffs argue that because only $202,000 was available to them from the tortfeasor\u2019s liability insurance, the $202,000 must be measured against the $300,000 UIM coverage and in so doing, qualify them for UIM coverage of $98,000. We disagree. In this case, \u201cat the time of the accident,\u201d the tortfeasor\u2019s liability coverage was identical to Ray\u2019s UIM coverage. Any payments the liability company made to an injured party after the date of the accident and which reduced the liability insurance available to these plaintiffs is not relevant to our inquiry. Thus, by definition, the tort-feasor\u2019s vehicle was not an underinsured vehicle, and the trial court correctly entered summary judgment for Atlantic Casualty.\nAffirmed.\nJudges EAGLES and ORR concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Allen R. Tew for plaintiff-appellants.",
      "Wallace, Morris, Barwick & Rochelle, P.A., by P.C. Barwick, Jr. and Martha B. Beam, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "SHANTA\u2019 L. RAY and GEORGE STANLEY ROYAL, JR., by his Guardian Ad Litem, RICHARD M. PRICE and SAUDRA BARBOUR v. ATLANTIC CASUALTY INSURANCE COMPANY, a North Carolina Corporation\nNo. 9211SC1013\n(Filed 5 October 1993)\nInsurance \u00a7 528 (NCI4th)\u2014 underinsured coverage \u2014 multiple parties \u2014 tortfeasor\u2019s coverage less than UIM coverage after settlement with one party\nThe tortfeasor\u2019s vehicle was not an underinsured vehicle and the trial court correctly entered summary judgment for defendant Atlantic Casualty Insurance where plaintiffs were injured in a head-on collision with a vehicle insured by Aetna; defendant Atlantic Casualty insured plaintiff Ray, who owned the car; the tortfeasor\u2019s policy with Aetna provided limits of liability of $100,000 per person for bodily injury, $300,000 per occurrence for bodily injury, and $50,000 for property damage; Aetna settled the claim of the passenger in the tort-feasor\u2019s vehicle, leaving $202,000 of the per occurrence liability coverage available to pay plaintiffs; plaintiff Ray\u2019s policy with defendant Atlantic Casualty provided underinsured policy limits of $100,000 per person and $300,000 per accident; and plaintiffs Ray and Royal sought a declaratory judgment that Atlantic Casualty\u2019s policy provides for underinsured motorist coverage for Ray and Royal in the amount of $98,000. At the time of the accident, the tortfeasor\u2019s liability coverage was identical to Ray\u2019s UIM coverage and the tortfeasor\u2019s vehicle was not an underinsured vehicle. Any payments made after the date of the accident which reduced the insurance available to plaintiffs are not relevant to this inquiry.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nUninsured and underinsured motorist coverage: recoverability, under uninsured or underinsured motorist coverage, of deficiencies in compensation afforded injured party by tortfeasor\u2019s liability coverage. 24 ALR4th 13.\nAppeal by plaintiffs from order entered 21 August 1992 in Johnston County Superior Court by Judge Knox V. Jenkins. Heard in the Court of Appeals 17 September 1993.\nAllen R. Tew for plaintiff-appellants.\nWallace, Morris, Barwick & Rochelle, P.A., by P.C. Barwick, Jr. and Martha B. Beam, for defendant-appellee."
  },
  "file_name": "0259-01",
  "first_page_order": 289,
  "last_page_order": 292
}