{ "id": 12132642, "name": "RICHARD E. HOWARD, a minor, and through his Guardian Ad Litem, Joyce M. Sigmon, CHARLES E. HOWARD, individually, and JOYCE M. SIGMON, individually, Plaintiffs v. THE TRAVELERS INSURANCE COMPANIES, TROY D. UNDERWOOD, BEVERLY I. UNDERWOOD and SAMUEL BRYANT UNDERWOOD, Defendants", "name_abbreviation": "Howard ex rel. Sigmon v. Travelers Insurance Companies", "decision_date": "1994-07-05", "docket_number": "No. 9325SC881", "first_page": "458", "last_page": "463", "citations": [ { "type": "official", "cite": "115 N.C. App. 458" } ], "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": "64 ALR4th 668", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "46 ALR4th 735", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "46 A.L.R.4th 735", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1986, "opinion_index": 0 }, { "cite": "514 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "161 Ill. App.3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467934 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0223-01" ] }, { "cite": "826 P.2d 433", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10368791 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/p2d/826/0433-01" ] }, { "cite": "189 W. Va. 79", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8576756 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "82", "parenthetical": "and cases cited therein" }, { "page": "63", "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/w-va/189/0079-01" ] }, { "cite": "494 N.W.2d 885", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10653555 ], "year": 1993, "pin_cites": [ { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/nw2d/494/0885-01" ] }, { "cite": "852 S.W.2d 353", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10002333 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/sw2d/852/0353-01" ] }, { "cite": "140 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2110489, 2110522 ], "year": 1965, "pin_cites": [ { "page": "791", "parenthetical": "finding no recovery wherein plaintiff-husband sought damages for loss of consortium and reimbursement for medical expenses arising out of the injury to his wife; cited in South Carolina Ins. Co., supra" } ], "opinion_index": 0, "case_paths": [ "/sc/245/0383-01", "/sc/245/0389-01" ] }, { "cite": "245 S.C. 389", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2110522 ], "year": 1965, "pin_cites": [ { "page": "397", "parenthetical": "finding no recovery wherein plaintiff-husband sought damages for loss of consortium and reimbursement for medical expenses arising out of the injury to his wife; cited in South Carolina Ins. Co., supra" } ], "opinion_index": 0, "case_paths": [ "/sc/245/0389-01" ] }, { "cite": "345 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "415" }, { "page": "415-16" }, { "page": "415", "parenthetical": "stating that \"[p]erhaps when the award to the person who sustained the direct bodily injury does not exhaust the maximum policy limits, a consequential or derivative damage claim for the difference may be maintained\"" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358374 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "124" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0122-01" ] }, { "cite": "390 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "326 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307211 ], "year": 1990, "pin_cites": [ { "page": "392-93" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0387-01" ] }, { "cite": "117 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "440-41" } ], "opinion_index": 0 }, { "cite": "253 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625974 ], "year": 1960, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0474-01" ] }, { "cite": "152 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "107", "parenthetical": "\"each clause and word must be . . . given effect if possible by any reasonable construction\"" } ], "opinion_index": 0 }, { "cite": "269 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562714 ], "year": 1967, "pin_cites": [ { "page": "240", "parenthetical": "\"each clause and word must be . . . given effect if possible by any reasonable construction\"" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0235-01" ] }, { "cite": "347 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "317 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771766 ], "year": 1986, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0623-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "319 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "311 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684112 ], "year": 1984, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0621-01" ] }, { "cite": "366 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "322 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517981 ], "year": 1988, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0077-01" ] }, { "cite": "4 A.L.R. 4th 1253", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1981, "pin_cites": [ { "page": "1255" } ], "opinion_index": 0 }, { "cite": "50 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "229 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166702 ], "year": 1948, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0518-01" ] }, { "cite": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] } ], "analysis": { "cardinality": 664, "char_count": 12331, "ocr_confidence": 0.714, "pagerank": { "raw": 2.9282305218332107e-07, "percentile": 0.8471447563159088 }, "sha256": "11c8943ff1b71f65f79ad0910642464a1437326fdef6eca8c14d2a875bcea7fd", "simhash": "1:534af6ee14a006b5", "word_count": 1990 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "RICHARD E. HOWARD, a minor, and through his Guardian Ad Litem, Joyce M. Sigmon, CHARLES E. HOWARD, individually, and JOYCE M. SIGMON, individually, Plaintiffs v. THE TRAVELERS INSURANCE COMPANIES, TROY D. UNDERWOOD, BEVERLY I. UNDERWOOD and SAMUEL BRYANT UNDERWOOD, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nPlaintiffs contend that the trial court \u201cerroneously declared that the insurance policy at issue in this action affords an aggregate coverage to all of the appellants in the amount of $100,000, rather than $100,000 per appellant, where the language setting the policy\u2019s limits is ambiguous.\u201d We disagree and affirm.\nRegarding the construction of policy language containing allegedly ambiguous terms, our Supreme Court has stated:\nAny ambiguity in the policy language must be resolved against the insurance company and in favor of the insured. Woods, 295 N.C. at 506, 246 S.E.2d at 777. A difference of judicial opinion regarding proper construction of policy language is some evidence calling for application of this rule. See Maddox v. Insurance Co., 303 N.C. 648, 654, 280 S.E.2d 907, 910 (1981); Electric Co. v. Insurance Co., 229 N.C. 518, 521, 50 S.E.2d 295, 297 (1948); Annot., \u201cInsurance\u2014Ambiguity\u2014Split Court Opinions,\u201d 4 A.L.R. 4th 1253, 1255 (1981). While \u201c[t]he fact that a dispute has arisen as to the parties\u2019 interpretation of the contract is some indication that the language of the contract is at best, ambiguous,\u201d St. Paul Fire & Marine Ins. Co. v. Freeman-White Assoc., Inc., 322 N.C. 77, 83, 366 S.E.2d 480, 484 (1988); accord Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 630, 319 S.E.2d 217, 223 (1984), \u201cambiguity ... is not established by the mere fact that the plaintiff makes a claim based upon a construction of its language which the company asserts is not its meaning.\u201d Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970).\n\u201cAll parts of a contract are to be given effect if possible. It is presumed that each part of the contract means something.\u201d Bolton Corp. v. T.A. Loving Co., 317 N.C. 623, 628, 347 S.E.2d 369, 372 (1986). See also Williams v. Insurance Co., 269 N.C. 235, 240, 152 S.E.2d 102, 107 (1967) (\u201ceach clause and word must be . . . given effect if possible by any reasonable construction\u201d); Robbins v. Trading Post, 253 N.C. 474, 477, 117 S.E.2d 438, 440-41 (1960).\nThe terms of a contract must, if possible, be construed to mean something, rather than nothing at all, and where it is possible to do so by a construction in accordance with the fair intendment of a contract, the tendency of the courts is to give it life, virility, and effect, rather than to nullify or destroy it.\n17 Am. Jur. 2d Contracts \u00a7 254, at 648-49 (1964).\nBrown v. Lumbermans Mut. Casualty Co., 326 N.C. 387, 392-93, 390 S.E.2d 150, 153 (1990).\nWe find the language of the policy clear and unambiguous. Plaintiffs have failed to cite North Carolina case authority in support of their argument, and we are not persuaded. Plaintiffs concede that the \u201cLimit of Liability\u201d language used in the policy here is similar to the policy at issue in South Carolina Insurance Co. v. White, 82 N.C. App. 122, 124, 345 S.E.2d 414, 415 (1986). In White, the physically injured party, Donald Hikes, suffered injuries from a motorcycle accident in which he was struck by the automobile of Donald and Jane White. The Whites were insured by South Carolina Insurance Company with a policy having limits of $25,000 per person and $50,000 per accident. After the Hikes filed suit against the Whites, Donald Hikes\u2019 claim was settled when the insurance company paid him the \u201cper person\u201d policy limits of $25,000 in full settlement of his damage claim. Mrs. Hikes contended that the insurance company was obligated to pay damages to her for loss of consortium arising from Donald Hikes\u2019 physical injury. In affirming the trial court\u2019s judgment holding that the insurance company had no obligation towards Mrs. Hikes for her derivative claim, this Court stated:\nThe term \u201call damages\u201d used in the policy is all-inclusive. It includes not only direct damages for bodily injury sustained by Donald Hikes, but also any indirect or consequential damages for loss of consortium. Perhaps when the award to the person who sustained the direct bodily injury does not exhaust the maximum policy limits, a consequential or derivative damage claim for the difference may be maintained. But when, as in this case, the policy limit has been exhausted by the settlement of $25,000 paid to the person who sustained the direct bodily injury, all consequential or derivative damage claims for personal injuries are subsumed within the settlement award.\nAn analysis of the terms \u201cbodily injury\u201d and \u201cpersonal injury\u201d helps to clarify the point. Bodily injury refers to \u201c[p]hysical pain, illness or any impairment of physical condition.\u201d Black\u2019s Law Dictionary 707 (5th ed. 1979). \u201cPersonal injury,\u201d however, is \u201cused . . . in a much wider sense, and . . . includ[es] any injury which is an invasion of personal rights . . . .\u201d Id. at 707. . . .\nHad Donald Hikes suffered no bodily injury, Ethelene Hikes would have suffered no injuries and would have had no claim. Her claim, in our view, is derivative. . . .\nIn sum, because the Insurance Company paid its limit of liability to Donald Hikes for his bodily injury, that damage award necessarily included Ethelene Hikes\u2019 claim for loss of consortium under the terms of the policy.\nId. at 124-126, 345 S.E.2d at 415-16. Similarly, here we conclude that the term \u201call damages\u201d used in the policy\u2019s \u201cLimit of Liability\u201d section here is all-inclusive. Id. The parents\u2019 claim for the child\u2019s medical expenses is derivative in nature; accordingly the parents cannot recover since they themselves have sustained no \u201cbodily injury\u201d within the meaning of the policy. Id.; Sheffield v. American Indemnity Company, 245 S.C. 389, 397, 140 S.E.2d 787, 791 (1965) (finding no recovery wherein plaintiff-husband sought damages for loss of consortium and reimbursement for medical expenses arising out of the injury to his wife; cited in South Carolina Ins. Co., supra). We note that our holding here is in accord with numerous other jurisdictions. See, e.g., Eaves v. Boswell, 852 S.W.2d 353 (Mo.App. 1993); Carlson v. Mutual Service Ins., 494 N.W.2d 885, 887 (Minn. 1993); Federal Kemper Ins. Co. v. Karlet, 189 W. Va. 79, 82, 428 S.E.2d 60, 63 (1993) (and cases cited therein); Kinsella v. Farmers Ins. Exchange, 826 P.2d 433 (Colo. App. 1992); Creamer v. State Farm Mut. Auto. Ins. Co., 161 Ill. App.3d 223, 514 N.E.2d 214 (1987). See generally 8A J. Appleman and J. Appleman, Insurance Law and Practice, \u00a7 4893, p.60 (1981 and Supp. 1993); Annotation, Consortium Claim of Spouse, Parent, or Child of Accident Victim as Within Extended \u2018Per Accident\u201d Coverage Rather than \u201cPer Person\u201d Coverage of Automobile Liability Policy, 46 A.L.R.4th 735 (1986). We further note that the child\u2019s medical expenses ($305,919.09) are approximately three times the per person bodily injury limit of the policy. See South Carolina Ins. Co., 82 N.C. App. at 124, 345 S.E.2d at 415 (stating that \u201c[p]erhaps when the award to the person who sustained the direct bodily injury does not exhaust the maximum policy limits, a consequential or derivative damage claim for the difference may be maintained\u201d). We conclude that the trial court correctly determined that plaintiffs are entitled to an aggregate award of $100,000.00 under the insurance policy.\nFor the reasons stated, the trial court\u2019s 7 June 1993 order and judgment is affirmed.\nAffirmed.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Come, Come & Grant, P.A., by Robert M. Grant, Jr., and Peter R. Gmning, for plaintiff-appellants.", "Womble Carlyle Sandridge & Rice, by Richard T. Rice, for defendant-appellees." ], "corrections": "", "head_matter": "RICHARD E. HOWARD, a minor, and through his Guardian Ad Litem, Joyce M. Sigmon, CHARLES E. HOWARD, individually, and JOYCE M. SIGMON, individually, Plaintiffs v. THE TRAVELERS INSURANCE COMPANIES, TROY D. UNDERWOOD, BEVERLY I. UNDERWOOD and SAMUEL BRYANT UNDERWOOD, Defendants\nNo. 9325SC881\n(Filed 5 July 1994)\nInsurance \u00a7 686 (NCI4th)\u2014 injury to minor child \u2014 no bodily injury to parents \u2014 parents\u2019 claim derivative \u2014 no recovery for parents\nThe trial court properly determined that plaintiffs were entitled to an aggregate award of $100,000 under an insurance policy issued by defendant rather than $100,000 per appellant where the policy limited liability to $100,000 for each person injured in an accident, since the term \u201call damages\u201d used in the policy\u2019s \u201cLimit of Liability\u201d section was all inclusive; plaintiff parents\u2019 claim for plaintiff child\u2019s medical expenses was derivative in nature; and the parents could not recover since they themselves sustained no bodily injury within the meaning of the policy.\nAm Jur 2d, Automobile Insurance \u00a7 425.\nConsortium claim of spouse, parent or child of accident victim as within extended \u201cper accident\u201d coverage rather than \u201cper person\u201d coverage of automobile liability policy. 46 ALR4th 735.\nWhat constitutes single accident or occurrence within liability policy limiting insurer\u2019s liability to a specified amount per accident or occurrence. 64 ALR4th 668.\nAppeal by plaintiffs from order and judgment filed 7 June 1993 by Judge Julia V. Jones in Catawba County Superior Court. Heard in the Court of Appeals 21 April 1994.\nPlaintiff Richard E. Howard, a minor (hereinafter \u201cthe child\u201d), is the son of plaintiffs Charles E. Howard and Joyce M. Sigmon. On 28 September 1990, the child was riding as a passenger in a vehicle driven by Samuel Bryant Underwood, also a minor. Samuel Bryant Underwood\u2019s parents, Troy D. Underwood and Beverly I. Underwood, were listed as the named insureds under a Personal Auto Policy issued by defendant The Travelers Insurance Companies (\u201chereinafter Travelers\u201d) which provided inter alia as follows:\nDefinitions\n\u201cBodily injury\u201d means bodily harm, sickness, or disease, including death that results.\nLiability Coverage\nCoverage A \u2014 Bodily Injury Coverage B \u2014 Property Damage\nInsuring Agreement\nWe will pay damages for \u201cbodily injury\u201d or \u201cproperty damage\u201d for which any \u201cinsured\u201d becomes legally responsible because of an auto accident.\nLimit of Liability\n1.The limit of liability shown in the Declarations for each person for Coverage A [$100,000 each person/$300,000 each accident] is our maximum limit of liability for all damages for \u201cbodily injury,\u201d including damages for care, loss of services or death, sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Declarations for each accident for Coverage A is our maximum limit of liability for all damages for \u201cbodily injury\u201d resulting from any one auto accident.\nThe limits of liability shown in the Declarations for this coverage are our maximum limits of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of:\n1. \u201cInsureds\u201d;\n2. Claims made;\n3. Vehicles or premiums shown in the Declarations; or\n4. Vehicles involved in the auto accident.\n(Alterations added.)\nIn their 14 April 1993 complaint for declaratory judgment, plaintiffs alleged inter alia that the child has incurred \u201cnecessary medical expenses\u201d of $305,919.09 and that \u201cas the parents of . . . [the] minor child, [the parents] are liable for the necessary medical expenses of [the minor child], and each has thus been damaged in the aggregate amount of Three Hundred Five Thousand Nine Hundred Nineteen Dollars and Nine Cents ($305,919.09) by reason of the injuries to [the minor child].\u201d Plaintiffs further alleged \u201cthat the \u2018Limits of Liability\u2019 language of the policy [supra] is ambiguous and should be construed against the defendant Travelers as its drafter, and that the policy should be construed to afford liability coverage for the defendants Troy D. Underwood, Beverly I. Underwood, and Samuel Bryant Underwood to each of the plaintiffs in the maximum amount of One Hundred Thousand Dollars per plaintiff for damages sustained by each plaintiff by reason of the bodily injuries suffered by [the minor child] ...\u201d\nOn 5 May 1993, defendant Travelers filed an answer, alleging that \u201cthe coverage for the claims of all three plaintiffs, all of which arise from the alleged bodily injury to [the minor child], is limited to $100,000.\u201d Further, defendant Travelers moved for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c). On 7 June 1993, the trial court filed an \u201corder and judgment\u201d ruling that plaintiffs were entitled to an aggregate recovery of $100,000.00 under the policy. Plaintiffs appeal.\nCome, Come & Grant, P.A., by Robert M. Grant, Jr., and Peter R. Gmning, for plaintiff-appellants.\nWomble Carlyle Sandridge & Rice, by Richard T. Rice, for defendant-appellees." }, "file_name": "0458-01", "first_page_order": 490, "last_page_order": 495 }