{
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  "name": "DALLAS L. ISENHOUR and wife, SANDRA K. ISENHOUR v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, and UNIVERSAL UNDERWRITERS GROUP",
  "name_abbreviation": "Isenhour v. Universal Underwriters Insurance",
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    "judges": [
      "Judges WELLS and EAGLES concur."
    ],
    "parties": [
      "DALLAS L. ISENHOUR and wife, SANDRA K. ISENHOUR v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, and UNIVERSAL UNDERWRITERS GROUP"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Chief Judge.\nPlaintiffs contend the trial court erred in allowing defendants\u2019 motion for summary judgment. Defendants, on the other hand, contend that summary judgment should be affirmed because the trial court correctly applied this Court\u2019s decision in Watson. Defendants are correct.\nDefendants submitted two affidavits in support of their motion for summary judgment. In the first affidavit, Universal\u2019s underwriting manager stated that Universal\u2019s policy issued to Far East Motors was a fleet policy that insured a multiple and changing number of motor vehicles used in Far East Motor\u2019s business. In the second affidavit, Nationwide, which had issued policies to both Clark, the tortfeasor, and the Isenhours, stated that both policies were nonfleet personal automobile insurance policies.\nOn the basis of these two affidavits and this Court\u2019s decision in Watson, the trial court granted summary judgment. At all times pertinent to this appeal, G.S. \u00a7 20-279.21(b)(4), relating to underin-sured motorist stacking, contained a proviso stating \u201cthis paragraph shall apply only to nonfleet private passenger motor vehicle insurance.\u201d The paragraph referred to in the proviso allows the owner, \u201cin instances where more than one policy may apply, the benefit of all limits of liability of underinsured motorist coverage under all such policies.\u201d G.S. \u00a7 20-279.21(b)(4).\nIn Watson, this Court, relying on the language in the proviso, held that fleet policies may not be stacked onto nonfleet policies under G.S. \u00a7 20-279.21(b)(4). Watson v. American National Fire Insurance Co., 106 N.C. App. 681, 417 S.E.2d 814 (1992), aff\u2019d on other grounds, 333 N.C. 338, 425 S.E.2d 696 (1993). In Watson, this Court stated that\nthe appellee\u2019s policy is a fleet policy under Sutton and excluded from inter-policy stacking, since the stacking provisions of N.C.G.S. \u00a7 20-279.21(b)(4) cover only nonfleet private passenger motor vehicle insurance. Aetna Casualty and Sur. Co. v. Fields, 105 N.C. App. 563, 414 S.E.2d 69 (1992). We recognize that inter-policy stacking is permitted so as to provide the innocent victim of an inadequately insured driver with an additional source of recovery; however, to allow stacking of a victim\u2019s fleet policy onto the nonfleet policy of the insured-tortfeasor is a result contemplated neither by the insurer when it wrote the fleet policy nor the legislature when it wrote the statute.\nId. at 686, 417 S.E.2d at 818. But see Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 382 S.E.2d 759, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989) (stating that no reason exists to distinguish between fleet and nonfleet policies under interpolicy stacking).\nOur Supreme Court granted discretionary review of Watson. On review, that Court determined that the insurance policy at issue was exempt, via N.C. Gen. Stat. \u00a7 20-279.32 (1993), from the requirements of the Financial Responsibility Act, encompassing G.S. \u00a7 20-279.21(b)(4), entitling the plaintiff to \u201conly such coverage as is provided in the policy.\u201d Watson, 333 N.C. 338, 340, 425 S.E.2d 696, 697 (1993). The Supreme Court affirmed this Court\u2019s decision without modification or reversal, despite conflicting language in Sutton indicating approval of the type of stacking barred by this Court in Watson. Thus, we must assume Watson is still binding on this Court.\nWatson, therefore, bars the coverage sought in this case and the trial court correctly granted summary judgment. In light of this determination, it is unnecessary to address plaintiffs\u2019 specific contentions regarding summary judgment.\nAffirmed.\nJudges WELLS and EAGLES concur.",
        "type": "majority",
        "author": "ARNOLD, Chief Judge."
      }
    ],
    "attorneys": [
      "Pritchett, Cooke & Burch, hy David J. Irvine, Jr., and Lovekin & Ingle, P.A., by Stephen L. Lovekin and John D. Ingle, for plaintiff appellants.",
      "Hutchins, Tyndall, Doughton & Moore, by Richard Tyndall and Kent L. Hamrick, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "DALLAS L. ISENHOUR and wife, SANDRA K. ISENHOUR v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, and UNIVERSAL UNDERWRITERS GROUP\nNo. 9325SC97\n(Filed 21 December 1993)\nInsurance \u00a7 528 (NCI4th(\u2014 automobile insurance \u2014 UIM coverage \u2014 no stacking of personal and fleet policies\nAn injured motorist was not entitled to interpolicy stacking of the underinsured motorist benefits under his nonfleet personal automobile policy and his employer\u2019s fleet insurance coverage.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nAppeal by plaintiffs from judgment entered 10 November 1992 by Judge Robert M. Burroughs in Catawba County Superior Court. Heard in the Court of Appeals 1 December 1993.\nOn 29 April 1989, Dallas Isenhour (Isenhour) was injured when his vehicle collided with a vehicle driven by Willie Kate Clark (Clark). On 12 March 1990, Isenhour filed a complaint against Clark alleging, among other things, negligence in failing to keep a proper lookout and driving in a reckless manner. Isenhour\u2019s wife, Sandra, asserted a claim for loss of consortium. At the time of the accident, both Clark and Isenhour were insured by Nationwide Mutual Insurance Company (Nationwide) under nonfleet personal automobile insurance policies. Isenhour\u2019s employer, Far East Motors, also had a fleet policy which may have covered Isenhour as a Far East Motors employee. The fleet policy was issued by the defendants, Universal Underwriters Insurance Company and Universal Underwriters Group, collectively, Universal.\nClark\u2019s policy with Nationwide had coverage limits of $50,000.00. As a result, plaintiffs\u2019 attorney notified Universal of their intent to seek additional compensation under the underinsured provision in Universal\u2019s policy with Far East Motors. Plaintiffs\u2019 attorney informed Universal in a 17 July 1991 letter of their demand for settlement of $1,200,000.00 and sent Universal copies of the complaint and other pertinent documents.\nOn 1 October 1991, plaintiffs\u2019 attorney notified Universal that the case was set on the 14 October 1991 trial calendar and that Universal did not appear represented. Universal sent plaintiffs\u2019 attorney a letter in which it denied it was a party to the suit and produced its insurance policy for review. The trial court entered judgment in the underlying case on 10 March 1992 in the amount of $750,000.00 for Isenhour and $150,000.00 for Sandra. The judgment stated that plaintiffs could recover from Clark to \u201cthe extent of underinsured motorist\u2019s coverage provided by an underinsured motorist carrier other than Nationwide Mutual Insurance Company,\u201d as per a partial release negotiated by the parties. This partial release limited Nationwide\u2019s total liability under both policies to $75,000.00.\nIn subsequent correspondence, Universal stated that the maximum that may be available to Isenhour under their policy was $60,000.00 and denied that an umbrella provision in the policy applied to Isenhour\u2019s claim. Universal explained that the coverage parts for the underlying policy and the umbrella policy were separate and distinct forms of coverage, adding that underinsured motorist coverage is added only by specific endorsement. Universal stated that only $60,000.00 in underinsured motorist coverage existed via specific endorsement and underinsured motorist coverage had not been endorsed onto the umbrella provision. Accordingly, Universal claimed Isenhour was entitled to recover, if anything, $60,000.00 in underinsured motorist coverage.\nOn 8 June 1992, the Isenhours filed suit against Universal alleging (1) gross negligence, (2) violation of N.C. Gen. Stat. \u00a7 58-63-15(11) (1991), unfair and deceptive acts or practices, and N.C. Gen. Stat. \u00a7 75-16 (1988), and (3) liability by virtue of N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (1989). The Isenhours further alleged the policy provided $1,060,000.00 in underinsured motorist coverage. Universal responded, denying liability and defending on the basis that (1) the policy is a fleet policy under G.S. \u00a7 20-279.21(b)(4) and cannot be stacked onto a nonfleet policy, (2) plaintiffs are not insureds under the policy, and (3) Universal was not a party to the judgment action, nor did it participate in the settlement agreement, and cannot be bound by that agreement.\nUniversal moved for summary judgment on 25 August 1992. On 10 November 1992, the trial court granted defendants\u2019 motion for summary judgment and dismissed the plaintiffs\u2019 claims. Judgment was based on this Court\u2019s holding in Watson v. American National Fire Insurance Company, 106 N.C. App. 681, 417 S.E.2d 814 (1992), aff\u2019d on other grounds, 333 N.C. 338, 425 S.E.2d 696 (1993). From the entry of summary judgment, plaintiffs appeal.\nPritchett, Cooke & Burch, hy David J. Irvine, Jr., and Lovekin & Ingle, P.A., by Stephen L. Lovekin and John D. Ingle, for plaintiff appellants.\nHutchins, Tyndall, Doughton & Moore, by Richard Tyndall and Kent L. Hamrick, for defendant appellees."
  },
  "file_name": "0152-01",
  "first_page_order": 182,
  "last_page_order": 185
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