{ "id": 8521726, "name": "THELMA L. BEAVERS, Executrix of the Estate of Alan B. Beavers, Deceased, Plaintiff v. FEDERAL INSURANCE COMPANY, Defendant", "name_abbreviation": "Beavers v. Federal Insurance", "decision_date": "1994-01-04", "docket_number": "No. 9210SC879", "first_page": "254", "last_page": "259", "citations": [ { "type": "official", "cite": "113 N.C. App. 254" } ], "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": "192 N.Y.S.2d 647", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1959, "opinion_index": 0 }, { "cite": "9 A.D.2d 829", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3043661 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ad2d/9/0829-01" ] }, { "cite": "181 N.Y.S.2d 994", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "pin_cites": [ { "page": "999" } ], "opinion_index": 0 }, { "cite": "15 Misc.2d 471", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1039102 ], "weight": 2, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/misc2d/15/0471-01" ] }, { "cite": "297 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0 }, { "cite": "250 Ga. 352", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1190956 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ga/250/0352-01" ] }, { "cite": "110 S.E. 16", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "152 Ga. 369", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 93097, 93887 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ga/152/0369-02", "/ga/152/0369-01" ] }, { "cite": "3 F.3d 441", "category": "reporters:federal", "reporter": "F.3d", "year": 1993, "opinion_index": 0 }, { "cite": "993 F.2d 516", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10514596 ], "weight": 2, "pin_cites": [ { "page": "523" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/f2d/993/0516-01" ] }, { "cite": "194 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557775 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0104-01" ] }, { "cite": "192 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "631", "parenthetical": "\"A common carrier . . . may be defined as a person . . . who holds himself out to the general public to engage in transportation . . . .\"" }, { "page": "632" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552460 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "479", "parenthetical": "\"A common carrier . . . may be defined as a person . . . who holds himself out to the general public to engage in transportation . . . .\"" }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0475-01" ] }, { "cite": "273 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "239" }, { "page": "302" }, { "page": "239" } ], "opinion_index": 0 }, { "cite": "302 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563691 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "26" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0014-01" ] }, { "cite": "110 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "251 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622965 ], "year": 1959, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0105-01" ] }, { "cite": "116 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1960, "pin_cites": [ { "page": "824" }, { "page": "824" }, { "page": "824" }, { "page": "825" }, { "page": "824" } ], "opinion_index": 0 }, { "cite": "253 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624718 ], "weight": 3, "year": 1960, "pin_cites": [ { "page": "300" }, { "page": "300" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0291-01" ] }, { "cite": "436 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526565 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0091-01" ] }, { "cite": "226 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552787 ], "year": 1976, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0155-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] } ], "analysis": { "cardinality": 751, "char_count": 12730, "ocr_confidence": 0.753, "pagerank": { "raw": 2.3563648015312304e-07, "percentile": 0.7937825718796733 }, "sha256": "f62b412a7765ec34f64cdefe62b9cfabbfef5d39e2abc34fc2178e9de60199fb", "simhash": "1:8f39155e042f5063", "word_count": 2035 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "THELMA L. BEAVERS, Executrix of the Estate of Alan B. Beavers, Deceased, Plaintiff v. FEDERAL INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant contends the trial court erred (1) by granting plaintiff\u2019s motion for summary judgment and (2) by denying defendant\u2019s motion for summary judgment. We agree, reverse the decision of the trial court, and remand with direction to enter summary judgment for defendant.\nEvidence before the court indicated the following: on 2 November 1987, Federal Insurance Company (defendant) issued an \u201cAccident\u201d policy to Wachovia Bank and Trust Company (Wachovia). The policy insured all persons maintaining a Wachovia Crown account; at all relevant times, Alan B. Beavers (decedent) was an insured. The policy, which allowed for recovery of benefits in the event of accidental death, provided in pertinent part:\nSection III \u2014 Hazards Insured Against\n* * =H *\nSubject to the terms of the policy, the hazards insured against are all those to which the Insured may be exposed while: riding as a passenger (not as the operator, pilot or crew member) in or on, or boarding or alighting from:\na) any conveyance operated by a common carrier licensed for the transportation of passengers for hire; or\nb) any transport type aircraft operated by a military air transport service.\nOn 6 May 1989, decedent took part in a white-water rafting excursion offered by Adventures, Inc., d/b/a Rivers (Rivers) on the Bluestone River in West Virginia. During the expedition, decedent fell overboard and drowned.\nPlaintiff, decedent\u2019s widow and executrix, timely submitted a proof of claim to defendant which denied the claim. Thereafter, plaintiff filed suit and ultimately both parties moved for summary judgment. On 6 April 1992, the trial court entered summary judgment in favor of plaintiff.\nDefendant argues its insurance policy provided decedent no coverage under the circumstances of his death, and consequently it was under no obligation to honor plaintiff\u2019s claim. Based upon this argument, defendant urges us to reverse the trial court and direct summary judgment to be entered in its favor. We find defendant\u2019s contentions persuasive.\nUnder N.C.R. Civ. P. 56(c), summary judgment should be granted only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d The party moving for summary judgment must establish the lack of any triable issue, and may meet this burden by showing (1) an essential element of the opposing party\u2019s claim is nonexistent; (2) discovery indicates the opposing party cannot produce evidence to support an essential element; or (3) the opposing party cannot surmount an affirmative defense. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992).\nSection III of the \u201caccident policy\u201d at issue specifies the \u201cHazards Insured Against.\u201d In pertinent part, coverage is afforded only if the insured is injured while a passenger in either (1) a \u201cconveyance operated by a common carrier\u201d or (2) a transport-type aircraft operated by the military. As decedent\u2019s death was unrelated to military air travel, summary judgment for plaintiff was proper only if decedent was killed while a passenger in a conveyance operated by a common carrier.\nWe note initially decedent\u2019s policy was \u201cmade\u201d in North Carolina, see Suitt Construction Co. v. Seaman\u2019s Bank for Savings, 30 N.C. App. 155, 159, 226 S.E.2d 408, 410 (1976), and insured decedent who resided in this state. Under these circumstances, North Carolina substantive law governs construction of the policy and any terms contained therein. N.C.G.S. \u00a7 58-3-1 (1991); Collins & Aikman Corp. v. Hartford Accident & Indemnity Co., 335 N.C. 91, 436 S.E.2d 243 (1993).\nUnder North Carolina law, what constitutes a common carrier is a question of law, but whether one is acting as a common carrier is ordinarily a question of fact. Jackson v. Stancil, 253 N.C. 291, 300, 116 S.E.2d 817, 824 (1960). However, if the facts are undisputed, it is a question of law whether the evidence is sufficient to show one is a common carrier. Id. at 301, 116 S.E.2d at 824.\nThe term \u201ccommon carrier\u201d is not defined in the insurance contract and thus we turn to other sources for explication. Under N.C.G.S. \u00a7 62-3(6) (1989), a common carrier:\nmeans any person which holds itself out to the general public to engage in transportation of persons or property for compensation, including transportation by train, bus, truck, boat or other conveyance ....\nOur common law provides a similar definition:\n\u201cA common carrier is one who holds himself out to the public as engaged in the public business of transporting persons ... for compensation from place to place, offering his services to such of the public generally as choose to employ him and pay his charges. The distinctive characteristic of a common carrier is that he undertakes as a business to carry for all people indifferently . . . .\u201d\nJackson v. Stancil, 253 N.C. at 300, 116 S.E.2d at 824 (quoting Utilities Comm\u2019n v. Gulf-Atlantic Towing Corp., 251 N.C. 105, 109, 110 S.E.2d 886, 889 (1959)); see also Utilities Comm\u2019n v. Bird Oil Co., 302 N.C. 14, 26, 273 S.E.2d 232, 239 (1981). In Jackson v. Stancil, the question was whether the carrier \u201cheld out\u201d its transportation service to the public. Id. at 302, 116 S.E.2d at 825. In the case sub judice, however, the issue is even more basic: whether the services being provided by RIVERS to decedent at the time of his death, qualify RIVERS as a common carrier.\nUnder both statutory and common law, the fundamental service which a common carrier renders is transportation. See G.S. \u00a7 62-3(6) (wherein the legislature used the term \u201ctransportation\u201d twice in defining who is a common carrier); Utilities Commission v. J.D. McCotter, Inc., 16 N.C. App. 475, 479, 192 S.E.2d 629, 631 (1972) (\u201cA common carrier . . . may be defined as a person . . . who holds himself out to the general public to engage in transportation . . . .\u201d), aff\u2019d, 283 N.C. 104, 194 S.E.2d 859 (1973); Woolsey v. National Transp. Safety Board, 993 F.2d 516, 523 (\u201c[T]he crucial determination ... is whether the carrier has held itself out to the public ... as being willing to transport . . . .\u201d), reh\u2019g denied, 3 F.3d 441 (5th Cir. 1993). The vital import of \u201ctransportation\u201d may also be discerned by examining those entities which have been held to be common carriers: (1) petroleum carriers, Utilities Commission v. Bird Oil Co., 302 N.C. at 27, 273 S.E.2d at 239; (2) an aircraft transporter of musicians, Woolsey, 993 F.2d at 525; (3) a company which hauls boats and lumber, Utilities Comm\u2019n v. McCotter, 16 N.C. App. at 480, 192 S.E.2d at 632; and (4) an operator of passenger elevators, Bullard v. Rolader, 152 Ga. 369, 110 S.E. 16 (1921). Considering these entities judicially determined to be common carriers, it is evident the basic function of a common carrier is the provision of safe and secure transportation of persons or property. See Harlan v. Six Flags Over Georgia, Inc., 250 Ga. 352, 297 S.E.2d 468 (1982).\nSince every division of a business need not involve the provision of transportation services, an entity may be a common carrier as to only a portion of its operations. See 13 C.J.S. Carriers \u00a7 2 (1990); see also Grauer v. State of New York, 15 Misc.2d 471, 476, 181 N.Y.S.2d 994, 999 (Ct. Cl.) (The State of New York \u201cwas a common carrier in the operation of [a] chair lift.\u201d), aff\u2019d, 9 A.D.2d 829, 192 N.Y.S.2d 647 (1959). Because decedent died while whitewater rafting, we need only determine whether RIVERS was providing the requisite transportation services at this time. The facts necessary to resolve this question are undisputed; thus it is a question of law whether the evidence is sufficient to show RIVERS was acting as a common carrier. See Jackson v. Stancil, 253 N.C. at 301, 116 S.E.2d at 824.\nAccording to RIVERS\u2019 president, it was \u201cin the outdoor recreation business, primarily a whitewater rafting outfitter\u201d and offered \u201call kinds of adventure sports activities\u201d; \u201cthe nature of our business [is] to promote come and have a good time, let us enjoy some camaraderie on the river, enjoy nature, run a wild river . . . .\u201d Advertising brochures contained colorful, full action photographs of white-water rafting and announced RIVERS\u2019 equipment was designed for \u201crunning wild rivers\u201d and \u201chaving wild fun.\u201d RIVERS\u2019 president further described its business as \u201cselling fun [and] camaraderie.\u201d\nFocusing more specifically upon the white-water rafting services being provided at the time of decedent\u2019s death, the un-controverted evidence shows RIVERS offered \u201cruns\u201d on several different rivers; however, RIVERS\u2019 advertizing brochure proclaimed it took \u201cevery available opportunity to raft the Gauley [river] when river conditions allow.\u201d The Gauley river contains over 75 rapids which are Class III or above. A Class III rapid, according to international standards, is one which is difficult to navigate because of numerous waves. Moreover, decedent died while rafting the Bluestone river which contained a number of Class III rapids. The fatal section of the river was known as \u201cMile Long Rapid.\u201d A video tape of the trip in question, introduced as an exhibit at the summary judgment hearing, portrayed rafts plunging down nearly vertical drops, with everyone drenched with water and paddling furiously. The narrator described participants as \u201cwhite-water animals\u201d and \u201cwhite-water assassins.\u201d Finally, RIVERS\u2019 rafting customers were required to wear life jackets and safety helmets during white-water rafting trips.\nIn a case involving analogous factual circumstances, the Georgia Supreme Court distinguished between an amusement park ride known as the \u201cWheelie\u201d and common carriers such as railroads and bus-lines. Harlan v. Six Flags Over Georgia, Inc., 250 Ga. 352, 297 S.E.2d 468 (1982). The court reasoned persons using the transportation services of a common carrier \u201cexpect to be carried safely, securely, and without incident to their destination.\u201d Id. at 353, 297 S.E.2d at 469. The \u201cWheelie,\u201d on the other hand, did not involve transportation, rather \u201c[i]ts riders seek a sensation of speed and movement for the sake of entertainment and thrills.\u201d Id. at 353-54, 297 S.E.2d at 469; see also Grauer v. State of New York, 15 Misc.2d 471, 181 N.Y.S.2d 994 (operator of a ski lift was a common carrier because, unlike a roller coaster, passengers used the lift primarily for transportation to the top of a mountain, and not to be amused or thrilled in the ascent thereto).\nWe find the logic underlying Harlan applicable to the case sub judice. The undisputed facts show RIVERS\u2019 white-water rafting excursions (including decedent\u2019s fatal rafting trip), were offered to provide participants with outdoor adventure, camaraderie, excitement and thrills. Any \u201ctransportation\u201d was merely incidental to this primary purpose. Accordingly, as a matter of law, RIVERS was not operating as a common carrier at the time of decedent\u2019s death.\nBecause Rivers was not operating as a common carrier, decedent\u2019s fatal accident was not covered under the terms of the insurance policy and plaintiff is not entitled to any proceeds thereunder. We therefore reverse the entry of summary judgment in favor of plaintiff and remand with instruction that summary judgment be entered for defendant.\nReversed and remanded.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Young, Moore, Henderson & Alvis, P.A., by R. Michael Strickland and David M. Duke, for plaintiff-appellee.", "LeBoeuf Lamb, Leiby & MacRae, by George R. Ragsdale and Stephanie H. Autry, for defendant-appellant." ], "corrections": "", "head_matter": "THELMA L. BEAVERS, Executrix of the Estate of Alan B. Beavers, Deceased, Plaintiff v. FEDERAL INSURANCE COMPANY, Defendant\nNo. 9210SC879\n(Filed 4 January 1994)\nInsurance \u00a7 377 (NCI4th)\u2014 coverage for injuries while passenger on common carrier \u2014drowning while white water rafting\u2014 excursion company not common carrier \u2014summary judgment improperly entered\nWhere a policy of insurance issued by defendant provided coverage for accidental death sustained by insured while a passenger in a conveyance operated by a common carrier, the trial court erred in granting summary judgment for plaintiff and should have entered it for defendant where insured drowned while white water rafting, since the company which provided white water excursions did so for recreational purposes; any transportation was merely incidental to this primary purpose; and the excursion company was therefore not a common carrier. N.C.G.S. \u00a7 62-3(6).\nAm Jur 2d, Insurance \u00a7\u00a7 559 et seq.\nAppeal by defendant from order entered 6 April 1992 by Judge George R. Greene in Wake County Superior Court. Heard in the Court of Appeals 31 August 1993.\nYoung, Moore, Henderson & Alvis, P.A., by R. Michael Strickland and David M. Duke, for plaintiff-appellee.\nLeBoeuf Lamb, Leiby & MacRae, by George R. Ragsdale and Stephanie H. Autry, for defendant-appellant." }, "file_name": "0254-01", "first_page_order": 284, "last_page_order": 289 }