{ "id": 8527953, "name": "UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff v. JACK F. GAMBINO and WILLIAM F. JOHNSON, Defendants", "name_abbreviation": "United Services Automobile Ass'n v. Gambino", "decision_date": "1994-05-17", "docket_number": "No. 9310SC294", "first_page": "701", "last_page": "711", "citations": [ { "type": "official", "cite": "114 N.C. App. 701" } ], "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": "23 ALR4th 12", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "96 ALR2d 804", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "434 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519967 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0026-01" ] }, { "cite": "430 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "898-899" } ], "opinion_index": 0 }, { "cite": "334 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531661 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0001-01" ] }, { "cite": "435 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521339 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0295-01" ] }, { "cite": "420 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] }, { "cite": "384 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491072, 2489257, 2490993, 2488279, 2491871 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0437-04", "/nc/325/0437-01", "/nc/325/0437-02", "/nc/325/0437-05", "/nc/325/0437-03" ] }, { "cite": "382 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "year": 1989, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "420 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "332 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505733 ], "year": 1992, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0309-01" ] }, { "cite": "319 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685095 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0679-01" ] }, { "cite": "434 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531602 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0586-01" ] }, { "cite": "295 N.W. 63", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1940, "opinion_index": 0 }, { "cite": "209 Minn. 19", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 225715 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/minn/209/0019-01" ] }, { "cite": "61 A.2d 163", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1948, "opinion_index": 0 }, { "cite": "26 N.J. Misc. 300", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 436482 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nj-misc/26/0300-01" ] }, { "cite": "311 S.W.2d 723", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10177327 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/sw2d/311/0723-01" ] }, { "cite": "251 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633425 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0431-01" ] }, { "cite": "267 N.E.2d 39", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "130 Ill. App.2d 933", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2822709 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0933-01" ] }, { "cite": "386 A.2d 433", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1978, "opinion_index": 0 }, { "cite": "158 N.J.Super. 424", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 874919 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nj-super/158/0424-01" ] }, { "cite": "847 S.W.2d 150", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9996857 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/sw2d/847/0150-01" ] }, { "cite": "313 Or. 323", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2197216 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "329" }, { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/or/313/0323-01" ] }, { "cite": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "378 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487717, 2483120, 2483891, 2484408, 2486073 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0342-01", "/nc/324/0342-03", "/nc/324/0342-04", "/nc/324/0342-02", "/nc/324/0342-05" ] }, { "cite": "374 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 313", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526851 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0313-01" ] }, { "cite": "243 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560959 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0039-01" ] } ], "analysis": { "cardinality": 864, "char_count": 22840, "ocr_confidence": 0.763, "pagerank": { "raw": 2.466580288323691e-07, "percentile": 0.8060574187915975 }, "sha256": "4cf0559b9cc2bf5b6c79416878200233b97699433ea1dfef4efe9051e0841ce3", "simhash": "1:0cef80266433144e", "word_count": 3751 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge WYNN concur." ], "parties": [ "UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff v. JACK F. GAMBINO and WILLIAM F. JOHNSON, Defendants" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff\u2019s Appeal\nPlaintiff contends that the trial court erred by concluding that Jack is a \u201ccovered person\u201d under the terms of plaintiff\u2019s policy on the ground that he is the Johnsons\u2019 \u201cfoster child.\u201d For the reasons set forth herein, we hold that summary judgment in favor of defendants was improper.\nThe policy issued by plaintiff provides in pertinent part that it provides UIM coverage to \u201ccovered persons.\u201d For purposes of UIM coverage, the policy defines \u201ccovered person\u201d as \u201c[y]ou or any family member.\u201d \u201cFamily member\u201d is defined by the policy as \u201ca person related to you by blood, marriage, or adoption who is a resident of your household. This includes a ward or foster child.\u201d The policy does not, however define the term \u201cfoster child.\u201d\nWhen an insurance policy fails to define a nontechnical term, the term is given its ordinary meaning unless the context in which the term is used in the policy requires that it be given a different meaning. Grant v. Insurance Co., 295 N.C. 39, 243 S.E.2d 894 (1978). In addition, an insurance contract is to be construed as a reasonable person in the position of the insured would have understood it. W & J Rives, Inc. v. Kemper Insurance Group, 92 N.C. App. 313, 374 S.E.2d 430 (1988), disc. review denied, 324 N.C. 342, 378 S.E.2d 809 (1989). If the language of the policy is ambiguous or reasonably susceptible to different constructions, it must be given the interpretation most favorable to the insured. Id.; Maddox v. Insurance Co., 303 N.C. 648, 280 S.E.2d 907 (1981). Applying the foregoing principles, we attempt to ascertain the meaning of the term \u201cfoster child\u201d as used in plaintiff\u2019s policy.\nThe Random House Dictionary of the English Language 560 (1966) defines the term \u201cfoster child\u201d as \u201ca child raised by someone not its own mother or father.\u201d Webster\u2019s Third New International Dictionary, 897 (1976), defines foster (as the first constituent part of the term foster child) as \u201caffording, receiving, or sharing nourishment, upbringing, or parental care though not related by blood or legal ties; as . . . brought up by someone other than one\u2019s natural parent . . . .\u201d Black\u2019s Law Dictionary 656 (6th ed. 1990) defines \u201cfoster child\u201d as a \u201cchild whose care, comfort, education and upbringing has been left to persons other than his natural parents.\u201d\nIn Joseph v. Utah Home Fire Ins. Co., 313 Or. 323, 329, 835 P.2d 885, 888 (1992), the court defined \u201cfoster child\u201d as \u201ca child reared by a person other than its biological or adoptive parent[.]\u201d The court defined a foster parent as \u201ca person who has performed the duties of a parent to the child of another by rearing that child as the foster parent\u2019s own.\u201d Id. The same or similar definitions have been utilized by courts in other jurisdictions. See, Hayes v. American Standard Ins. Co., 847 S.W.2d 150 (Mo. App. S.D. 1993); Brokenbaugh v. New Jersey Mfrs. Ins. Co., 158 N.J.Super. 424, 386 A.2d 433 (1978); Illinois v. Parris, 130 Ill. App.2d 933, 267 N.E.2d 39 (1971); Ellis v. Ellis, 251 Ark. 431, 472 S.W.2d 703 (1971); Trotter v. Pollan, 311 S.W.2d 723 (Tex. Civ. App. 1958); Cicchino v. Biarsky, 26 N.J. Misc. 300, 61 A.2d 163 (1948); In re Norman\u2019s Estate, 209 Minn. 19, 295 N.W. 63 (1940). None of these courts have limited the definition of \u201cfoster child\u201d to those situations where a person\u2019s \u201cfoster child\u201d status was conferred by legal appointment or placement.\nPlaintiff argues that the term \u201cfoster child\u201d can only apply to a person less than eighteen years of age and that Gambino, who was nineteen at the time of the accident, therefore would not fall within the policy definition of \u201cfoster child.\u201d We disagree.\nFirst, we believe that the word \u201cchild,\u201d when used as part of the term \u201cfoster child,\u201d refers to a sociological relationship between two persons rather than to a person\u2019s biological age. Second, under plaintiff\u2019s interpretation, a \u201cfoster child\u201d would be covered under the policy\u2019s UIM provisions only if he or she was under the age of majority. However, under the terms of the policy, a \u201cfoster child\u201d is included within the definition of \u201cfamily member\u201d which is defined as \u201ca person related to you by blood, marriage or adoption who is a resident of your household.\u201d Coverage for family members is not restricted to family members below the age of majority. Rather, a family member living in the insured\u2019s household would be included under the policy\u2019s UIM coverage regardless of his or her age. See, Harrington v. Stevens, 334 N.C. 586, 434 S.E.2d 212 (1993). Thus, limiting coverage for foster children to those foster children below the age of eighteen would result in disparate treatment for members of the same class of insureds. We therefore reject plaintiff\u2019s contention that \u201cfoster child\u201d includes only persons under the age of majority.\nWe hold that the term \u201cfoster child,\u201d as used in plaintiff\u2019s policy, means a person whose upbringing, care and support has been provided by someone not related by blood or legal ties and who has reared the person as his or her own child. We must now decide whether the trial court erred by entering summary judgment in favor of defendants.\nA party is entitled to summary judgment if the pleadings and forecast of evidence before the court, taken in the light most favorable to the non-moving party, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Speck v. N.C. Dairy Foundation, 311 N.C. 679, 319 S.E.2d 139 (1984). Plaintiff contends that the evidence before the trial court was sufficient to create a question of fact as to whether Gambino was the Johnsons\u2019 \u201cfoster child\u201d as herein defined. We agree.\nViewed in the light most favorable to plaintiff, the evidence was insufficient to establish, as a matter of law, that Jack is the Johnsons\u2019 foster child. The evidence showed that the Johnsons assumed no parental responsibilities for Jack until he was approximately seventeen and one half years old. Prior to that time, Jack was reared and supported by his natural parents, or by his natural father and his stepmother. Even after leaving his father\u2019s home, Jack maintained a part-time job and earned income which he used to purchase his own clothing. In addition, Jack testified that his natural mother sent him money whenever she could afford to and that during a school year she sent him a total of approximately $500.00.\nOther evidence showed that the Johnsons listed their natural child as a driver on their automobile insurance policy, but that Jack was not similarly listed even though he was regularly allowed to drive at least one of the family\u2019s vehicles. Although there was evidence that the Johnsons purchased supplies and equipment to facilitate Jack\u2019s recuperation, there was also evidence which showed that Jack\u2019s stepmother sought payment of his medical expenses under a health insurance policy insuring her and her dependent children. Finally, following his recuperation, in the spring of 1990, Jack moved back to the home of his father.\nWe believe that this evidence, when considered in the light most favorable to plaintiff, creates a jury question as to whether Jack falls within the definition of a \u201cfoster child\u201d as that term is herein defined. Therefore, we hold that the trial court erred by entering summary judgment in favor of defendants.\nDefendants\u2019 Appeal\nDefendants first contend that the trial court erred by ruling that Jack is not entitled to aggregate or stack the UIM coverage for each of the three vehicles insured under the policy. We disagree.\n\u201cLanguage in a policy of insurance is the determining factor in resolving coverage questions unless the language is in conflict with applicable statutory provisions governing such coverage.\u201d Lanning v. Allstate Insurance Co., 332 N.C. 309, 312, 420 S.E.2d 180, 182 (1992).\n[W]hen a statute is applicable to the terms of a policy of insurance, the provisions of that statute become part of the terms of the policy to the same extent as if they were written in it, and if the terms of the policy conflict with the statute, the provisions of the statute will prevail.\nSutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 263, 382 S.E.2d 759, 762, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989). UIM insurance is governed by G.S. \u00a7 20-279.21(b)(4). Therefore, we must first look to the statute to determine whether it mandates that Jack, if found to be the Johnsons\u2019 foster child, is permitted to stack the UIM coverages for the three vehicles insured by the policy.\nAt the time this action arose, G.S. \u00a7 20-279.21(b)(4) permitted persons insured of the first class to stack UIM coverages, both interpolicy and intrapolicy. Harrington v. Stevens, 334 N.C. 586, 434 S.E.2d 212 (1993); Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 420 S.E.2d 124 (1992); Miller v. Nationwide Mutual Ins. Co., 112 N.C. App. 295, 435 S.E.2d 537 (1993). G.S. \u00a7 20-279.21(b)(3) defines insureds of the first class as \u201cthe named insured and, while a resident of the same household, the spouse of any named insured and relatives of eitherf.]\u201d\nIn the present case, Mr. Johnson was the named insured in the policy issued by plaintiff. Jack, the party seeking to stack the UIM coverages provided by the policy, is not the named insured nor the named insured\u2019s spouse. Thus, to be entitled to stack the coverages at issue, Jack must be a \u201crelative\u201d of Mr. Johnson or Mrs. Johnson.\nAs we held above, there is evidence from which a jury could reasonably find that Jack is the named insured\u2019s \u201cfoster child.\u201d However, a foster child is not a \u201crelative\u201d of the foster parent. The word \u201crelative\u201d as ordinarily understood, means \u201ca person connected with another by blood or affinity.\u201d Webster\u2019s Ninth New Collegiate Dictionary, 994 (1983). \u201cAffinity\u201d means \u201c[relationship by marriage.\u201d The American Heritage Dictionary of the English Language, 22 (1981). Clearly, Jack is not connected to the Johnsons by either blood or marriage. Thus, Jack is not a person insured of the first class as defined by G.S. \u00a7 20-279.21(b)(3) and may not take advantage of the stacking provisions in G.S. \u00a7 20-279.21(b)(4).\nJack\u2019s right to aggregate the UIM benefits of plaintiff\u2019s policy, where stacking is not mandated by the applicable statutory provision, must therefore be found, if at all, in the language of plaintiff\u2019s policy. Plaintiff\u2019s policy provides in pertinent part:\nThe limit of bodily injury liability shown in the Declarations for \u201ceach person\u201d for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident . . . . This is the most we will pay for bodily injury and property damage regardless of the number of:\n1. Covered persons;\n2. Claims made;\n3. Vehicles or premiums shown in the Declarations; or\n4. Vehicles involved in the accident.\nPlaintiff contends that this policy language prohibits intrapolicy stacking of UIM coverages. We agree.\nIn Lanning, supra, the Supreme Court reviewed policy language virtually identical to the foregoing language from plaintiffs policy and held that it unambiguously prohibited stacking of the uninsured motorists benefits. Thus, we hold that the trial court correctly ruled that the language of the policy prohibits aggregation of the UIM benefits for the Johnsons\u2019 three vehicles. Therefore, the UIM benefits available to Jack, in the event he is found to be a foster child, amount to $100,000.00 reduced by the $25,000.00 paid by the tortfeasor\u2019s liability insurer.\nNext, defendants contend that the trial court erred by ruling that the policy\u2019s UIM benefits do not cover prejudgment interest or costs taxed. This issue was recently addressed in Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 430 S.E.2d 895 (1993) and Wiggins v. Nationwide Mutual Ins. Co., 112 N.C. App. 26, 434 S.E.2d 642 (1993). The policy in the present case, like the policies at issue in Baxley and Wiggins, provides that the insurer promises to pay, up to its UIM policy limit,\ndamages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:\n1. Bodily injury sustained by a covered person and caused by an accident; and\n2. Property damage caused by an accident.\nThe decisions in Baxley and Wiggins interpreted this language, as obligating the insurer to pay prejudgment interest and costs up to its UIM policy limits. Baxley at 9, 430 S.E.2d at 898-899.\nIn the present case, Jack obtained a judgment against the tortfeasor for $325,000.00. This amount far exceeds $75,000.00, the maximum amount of UIM coverage provided by the policy. In the event that Jack is determined to be covered by the UIM provisions of the policy, the available limits of the UIM coverage would be exhausted in satisfaction of the judgment in the underlying tort action. Thus, under Baxley and Wiggins, no UIM coverage would be available for payment of prejudgment interest or costs.\nWe also reject defendants\u2019 contention that plaintiff is obligated to pay prejudgment interest by virtue of the policy\u2019s Supplementary Payments Provision. This portion of plaintiff\u2019s policy provides that plaintiff will pay \u201cinterest accruing after any suit we defend is instituted.\u201d However, this provision applies only to the liability portion of the policy and we find no similar provision in the UIM section of the policy. Therefore, we affirm the trial court\u2019s ruling that plaintiff\u2019s policy provides no UIM coverage for prejudgment interest or costs taxed in the underlying tort action.\nIn summary, we hold that, (1) the issue of Jack\u2019s status as a \u201cfoster child,\u201d as defined herein, is a question of fact for determination by a jury; (2) if Jack is a \u201ccovered person\u201d for purposes of UIM coverage, he is not entitled to aggregate the applicable UIM benefits, and (3) plaintiff\u2019s policy does not provide UIM coverage for prejudgment interest or costs taxed in the underlying tort action.\nAffirmed in part; reversed in part.\nChief Judge ARNOLD and Judge WYNN concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Battle, Winslow, Scott & Wiley, P.A., by Sam S. Woodley and M. Greg Crumpler, for plaintiff-appellant.", "Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff v. JACK F. GAMBINO and WILLIAM F. JOHNSON, Defendants\nNo. 9310SC294\n(Filed 17 May 1994)\n1. Insurance \u00a7 528 (NCI4th)\u2014 underinsured motorist coverage \u2014 stacking \u2014 foster child \u2014definition\n\u201cFoster child,\u201d as used in the portion of plaintiff\u2019s underin-sured motorist policy defining covered \u201cperson,\u201d means a person whose upbringing, care and support has been provided by someone not related by blood or legal ties and who has reared the person as his or her own child. Plaintiff\u2019s contention that \u201cfoster child\u201d includes only persons under the age of majority was rejected because it would result in disparate treatment of the same class of insureds.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nWho is \u201cmember\u201d or \u201cresident\u201d of same \u201cfamily\u201d or \u201chousehold,\u201d within no-fault or uninsured motorist provisions of motor vehicle insurance policy. 96 ALR2d 804.\n2. Insurance \u00a7 528 (NCI4th)\u2014 underinsured motorist coverage \u2014 stacking \u2014 foster child \u2014evidence insufficient\nThe trial court erred by granting summary judgment for defendants in an action to determine whether defendant Jack Gambino was included in defendant Johnson\u2019s underinsured motorist coverage where Jack left the home of his father and stepmother in 1987 and lived with the Johnsons until 1988, when he moved into a dormitory at Louisburg College; he returned to the Johnsons\u2019 on weekends, holidays and summer recess; the Johnsons provided him with school supplies, lunch money, food, and spending money when he resided in their home; he was allowed to use the family vehicle; he had little or no contact with his father and received no financial support from his father; he was seriously injured in a collision in 1989; the Johnsons purchased medical supplies and equipment for Jack\u2019s use while he recuperated in their home; and he continued to live with the Johnsons until he moved to his father\u2019s home in 1990. However, the Johnsons assumed no parental responsibilities for Jack until he was approximately seventeen and one-half years old; he was raised and supported by his natural parents, or his natural father and stepmother prior to that time; he maintained a part-time job and earned income which he used to purchase clothing after leaving his father\u2019s home; his natural mother sent him money whenever she could; the Johnsons listed their natural child as a driver on their automobile insurance policy but did not list Jack; although the Johnsons purchased supplies and equipment for Jack\u2019s recuperation, his stepmother sought payment of his medical expenses under a health insurance policy insuring herself and her dependent children; and Jack moved back to his father\u2019s home following his recuperation. The evidence, considered in the light most favorable to plaintiff, creates a jury question as to whether Jack falls within the definition of foster child.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nWho is. \u201cmember\u201d or \u201cresident\u201d of same \u201cfamily\u201d or \u201chousehold,\u201d within no-fault or uninsured motorist provisions of motor vehicle insurance policy. 96 ALR2d 804.\n3. Insurance \u00a7 528 (NCI4th)\u2014 automobile insurance \u2014 underinsured motorist coverage \u2014stacking\u2014policy language\nThe trial court correctly ruled that defendant Jack Gambino is not entitled to aggregate or stack UIM coverage of each of three vehicles insured under one policy where, at the time this action arose, N.C.G.S. \u00a7 20-279.21(b)(4) permitted persons insured of the first class to stack coverages; insureds of the first class were defined as the named insured and, while a resident of the same household, the spouse of any named insured and the relatives \u00f3f either; there was evidence from which a jury could reasonably find Gambino to be a foster child, but a foster child is not a relative and thus is not a person of the first class; and the policy language prohibited intrapolicy stacking.\nAm Jur 2d, Autmobile Insurance \u00a7\u00a7 326 et seq.\nCombining or \u201cstacking\u201d uninsured motorist coverages provided in single policy applicable to different vehicles of individual insured. 23 ALR4th 12.\n4. Insurance \u00a7 690 (NCI4th) \u2014 automobile insurance \u2014 underinsured motorist coverage \u2014prejudgment interest or costs taxed\nThe trial court did not err in an underinsured motorist stacking case by ruling that the policy\u2019s UIM benefits do not cover prejudgment interest or costs taxed where the judgment against the tortfeasor far exceeds the maximum amount of UIM coverage provided by the policy, so that the available limits of UIM coverage would be exhausted in satisfaction of the judgment in the underlying tort action and no UIM coverage would be available for payment of prejudgment interest or costs. Moreover, the Supplementary Payments Provision of the policy applies only to the liability portion of the policy and not the UIM Section.\nAm Jur 2d, Automobile Insurance \u00a7 428.\nAppeal by plaintiff and defendants from judgment entered 11 February 1993 by Judge Jack A. Thompson in Wake County Superior Court. Heard in the Court of Appeals 13 January 1994.\nPlaintiff instituted this action seeking a declaration of the rights of the parties with respect to the existence and amount of underin-sured motorist coverage (hereinafter \u201cUIM coverage\u201d) provided to defendant Jack F. Gambino by an insurance policy issued by plaintiff to defendant Johnson. The policy at issue insured three vehicles owned by Johnson and provided UIM coverage of $100,000.00 per person.\nDefendant Jack Gambino (hereinafter \u201cJack\u201d) was born in 1970 to Jack J. and Janice Gambino. Jack\u2019s parents divorced, his father remarried and, in 1983, moved his family to Raleigh, North Carolina. In November, 1987 Jack left the home of his father and step-mother and began living in the home of defendant William Johnson and his wife, Sheila. While living with the Johnsons, Jack held a part-time job at a local restaurant and completed his high school education, graduating in June, 1988. Following graduation, he continued to live in the Johnsons\u2019 household until the fall of 1988 when he enrolled in Louisburg College and moved into a campus dormitory. During the school year, Jack returned to the Johnsons\u2019 home on weekends and holidays. At the end of the college school year, Jack returned to Raleigh and lived with the Johnsons during the summer recess. During the times that Jack resided in their home, the Johnsons provided him with school supplies, lunch money, food and spending money. The Johnsons allowed Jack to use the family vehicle when he needed it, subject to its availability. During this time, Jack received no financial support from his father with whom he had little or no contact. Mr. Gambino did not know that Jack graduated from high school or that he was attending college.\nOn 22 August 1989, after returning to Louisburg to begin his second year of college, Jack was seriously injured when the motorcycle he was riding was involved in a collision with an automobile driven by Samuel Black. Following the accident, Jack\u2019s stepmother, Marlene Gambino, submitted claims for Jack\u2019s medical expenses under an insurance policy provided to her through her employer. The policy provided coverage for children of the employee who were under the age of 26 and primarily dependent on the employee for financial support. When Jack was released from the hospital, the Johnsons purchased medical supplies and equipment for his use while he recuperated in their home. Jack continued living with the Johnsons until the spring of 1990 when he moved back to his father\u2019s home.\nJack thereafter instituted an action against Black to recover damages for the injuries he sustained. Black\u2019s automobile liability insurance carrier paid its policy limit of $25,000.00, and plaintiff defended the case on behalf of Black. On 22 January 1993, a judgment was entered in accordance with a jury verdict in favor of Jack for $325,000.00.\nPlaintiff thereafter commenced this action to determine whether, and to what extent, the policy it issued to Mr. Johnson provides Jack with UIM coverage. On cross motions for summary judgment, the trial court entered an order concluding that (1) plaintiff\u2019s policy provides UIM coverage to Jack by reason of the policy provision which extends such coverage to a \u201cfoster child,\u201d (2) the coverage provided is $100,000.00, less $25,000.00 paid by Black\u2019s liability insurance carrier, or $75,000.00, (3) Jack is not entitled to aggregate or \u201cstack\u201d the coverage for each of the three vehicles insured by the policy, and (4) the policy does not provide UIM coverage for prejudgment interest or costs taxed in the underlying tort action. All parties appealed.\nBattle, Winslow, Scott & Wiley, P.A., by Sam S. Woodley and M. Greg Crumpler, for plaintiff-appellant.\nArmstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for defendant-appellants." }, "file_name": "0701-01", "first_page_order": 729, "last_page_order": 739 }