{
  "id": 11920692,
  "name": "TONY ONLEY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY and EMPLOYERS MUTUAL CASUALTY COMPANY, Defendants",
  "name_abbreviation": "Onley v. Nationwide Mutual Insurance",
  "decision_date": "1995-05-16",
  "docket_number": "No. COA94-804",
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  "provenance": {
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  "casebody": {
    "judges": [
      "Judges LEWIS and MARTIN, MARK D., concur."
    ],
    "parties": [
      "TONY ONLEY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY and EMPLOYERS MUTUAL CASUALTY COMPANY, Defendants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendants, . Nationwide Mutual Insurance Company (Nationwide) and Employers Mutual Casualty Company (Employers) appeal from an order entered 5 May 1994 in Mecklenburg County Superior Court allowing Tony Onley\u2019s (plaintiff) motion for summary judgment in his declaratory judgment action to determine entitlement to underinsured motorist (UIM) coverage.\nThe parties stipulated to the following facts: On 24 January 1988, plaintiff was operating a 1984 Chevrolet automobile owned by Shawn Bonner with the knowledge and consent of its owner when he was involved in a collision with a 1979 Chevrolet automobile owned by William Worthen and being operated by Ruth Worthen. At the time of the accident, the Worthen automobile was insured by St. Paul Fire & Marine Insurance Company (St. Paul) which paid its policy limits of $100,000 to plaintiff. Also at the time of the accident, plaintiff was twenty-two years of age and resided with his parents Robert and Barbara Onley. Plaintiffs parents had in effect at the time of the accident an insurance policy with Nationwide which provided UIM coverage in the amount of $100,000 per person with a limit of $300,000 per occurrence and insured two separate vehicles. Plaintiffs grandparents, Walter and Lucille Reynolds, had in effect at the time of the accident an insurance policy with Employers which provided UIM coverage in the amount of $50,000 per person with a limit of $100,000 per occurrence and insured two separate vehicles.\nUnder both the Nationwide and Employers\u2019 policies, an insured person under Uninsured/Underinsured motorist (UM/UIM) coverage is \u201cYou or any family member.\u201d The term \u201cfamily member\u201d is defined as \u201ca person related to you by blood, marriage or adoption who is a resident of your household.\u201d There are no exclusions under the policies which would exclude plaintiff from coverage. Both policies also contain the following:\nOTHER INSURANCE If this policy and any other auto insurance policy issued to you apply to the same accident, the maximum limit of liability for your injuries under all the policies shall not exceed the highest applicable limit of liability under any one policy.\nIn addition, if there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\nIn December 1993, plaintiff filed a complaint pursuant to the North Carolina Declaratory Judgment Act in Mecklenburg County Superior Court and requested the court to enter an order declaring the rights of the parties \u201cwith respect to the personal automobile liability insurance policies referred to and for a declaration that the total policies therein constitute \u2018stacking\u2019 coverage thereby insuring the Plaintiff to the extent of Three Hundred Thousand Dollars ($300,000.00) for any injuries resulting from the aforementioned collision.\u201d In March 1994, plaintiff and both defendants filed motions for summary judgment. In support of his motion, plaintiff filed affidavits from his grandparents stating that plaintiff resided with them at the time of the accident.\nBy order filed 11 May 1994, the court denied defendants\u2019 motions for summary judgment, allowed plaintiff\u2019s motion for summary judgment, and ordered that defendants \u201care entitled to a credit for the amount of paid by the tortfeasor\u2019s insurance carrier to be divided one third (1/3) to Defendant, Employers, and two thirds (2/3) to Defendant, Nationwide\u201d and \u201c[a]s between the Defendants, any liability to the Plaintiff for UIM coverage shall be on a pro[ ]rata basis upon the ratio of each defendant\u2019s UIM limits to the total UIM coverage available.\u201d In reaching this decision, the trial court necessarily determined that the tortfeasor\u2019s vehicle was an \u201cunderinsured highway vehicle\u201d within the meaning of Section 20-279.21(b)(4), and plaintiff was a person living in both his parents\u2019 and grandparents\u2019 households so that he was entitled to intrapolicy and interpolicy stack the UIM coverages of his parents\u2019 and grandparents\u2019 policies.\nThe issues presented are whether (I) plaintiff is entitled to both intrapolicy and interpolicy stack the UIM coverages in his parents\u2019 and grandparents\u2019 policies for the purpose of determining whether the tortfeasor\u2019s vehicle is an \u201cunderinsured highway vehicle\u201d under Section 20-279.21(b)(4); and (II) two different insurance companies providing UIM coverage in different amounts should receive equal credit for any payment made by the tortfeasor\u2019s insurance carrier.\nI\nNationwide and Employers do not dispute that plaintiff was a resident of both his parents\u2019 household and his grandparents\u2019 household at the time of the accident. Nationwide, however, contends plaintiff should not be allowed to intrapolicy stack the UIM coverage provided in his parents\u2019 policy, and Employers argues plaintiff is not entitled to interpolicy stack the UIM limits of the Employers policy \u201con top of the limits of the Nationwide policy\u201d for the purpose of determining whether the tortfeasor\u2019s vehicle is an \u201cunderinsured highway vehicle.\u201d We disagree with both arguments.\nNorth Carolina General Statute \u00a7\u00a7 20-279.21(b)(3), (4), as they were in effect for this case, \u201crequired that a person living in the household with relatives be allowed to aggregate or stack, both inter-policy and intrapolicy, the underinsured motorist coverages of the relatives and to collect on those stacked coverages.\u201d Mitchell v. Nationwide Mut. Ins. Co., 335 N.C. 433, 435, 439 S.E.2d 110, 111 (1994) (citing Harrington v. Stevens, 334 N.C. 586, 434 S.E.2d 212 (1993)). It follows that plaintiff is entitled to aggregate, both interpol-icy and intrapolicy, the UIM coverages in his parents\u2019 and grandparents\u2019 policies in determining whether the tortfeasor\u2019s vehicle is an underinsured highway vehicle under Section 20-279.21(b)(4). Intrapolicy stacking of Nationwide\u2019s UIM coverage of $100,000 per person provides $200,000 in UIM coverage available to plaintiff because this policy covered two separate vehicles. Intrapolicy stacking of Employers\u2019 UIM coverage of $50,000 per person provides $100,000 in UIM coverage available to plaintiff because this policy covered two separate vehicles. Interpolicy stacking of the UIM coverages available to plaintiff therefore provides him with a total UIM coverage of $300,000. Because the tortfeasor\u2019s policy had a liability limit of $100,000 and was therefore less than the applicable limits of UIM coverage for plaintiff at the time of the accident, the tortfeasor\u2019s vehicle constituted an \u201cunderinsured highway vehicle\u201d under Section 20-279.21(b)(4).\nII\nIn this case, the language in both the Nationwide and Employers\u2019 policies mandates under the \u201cother insurance\u201d provision that \u201cany insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\u201d These identical \u201cexcess\u201d clauses contained in both Nationwide and Employers\u2019 policies \u201care deemed mutually repugnant and neither excess clause will be given effect\u201d; therefore, \u201cwe read the policies as if those clauses were not present.\u201d North Carolina Farm Bureau Mut. Ins. Co. v. Hilliard, 90 N.C. App. 507, 511, 512, 369 S.E.2d 386, 388, 389 (1988); .see also 7A Am. Jur. 2d Automobile Ins. \u00a7 434 (1980) (if literal effect were given to both \u201cexcess clauses,\u201d neither policy would cover loss, thereby producing \u201can unintended absurdity\u201d). We are then left with the language in both policies under the \u201cother insurance\u201d provision that \u201cwe will only pay our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.\u201d This language compels the conclusion that Nationwide and Employers must share any liability to plaintiff for UIM coverage on a pro rata basis. Hilliard, 90 N.C. App. at 512, 369 S.E.2d at 389. This holding is not disputed by Nationwide or Employers.\nNorth Carolina General Statute \u00a7 20-279.21(b)(4) in effect at the time of the accident provides that UIM coverage does not apply until\nall liability bonds or insurance policies providing coverage for bodily injury caused by the ownership, maintenance, or use of the underinsured highway vehicle have been exhausted. . . . Underinsured motorist coverage shall be deemed to apply to the first dollar of an underinsured motorist coverage claim beyond amounts paid to the claimant pursuant to the exhausted liability policy.\nIn any event, the limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant pursuant to the exhausted liability policy and the total limits of the owner\u2019s underinsured motorist coverages provided in the owner\u2019s policies of insurance.\nN.C.G.S. \u00a7 20-279.21(b)(4) (1989). Under the terms of the statute, a UIM carrier is entitled to credit for the amounts paid to a claimant under the tortfeasor\u2019s liability policy. See Sproles v. Greene, 100 N.C. App. 96, 102-03, 394 S.E.2d 691, 695 (1990) (UIM carriers should receive credit for amounts paid by tortfeasor\u2019s carrier because claimant, under terms of 1983 version of G.S. 20-279.21(b)(4) should not collect more than his actual loss), aff\u2019d in part, rev\u2019d in part on other grounds, 329 N.C. 603, 407 S.E.2d 497 (1991).\nEmployers, citing Sproles, contends that any recovery from the tortfeasor\u2019s carrier must be credited equally between Nationwide and Employers to reduce the exposure of their UIM liability by the same amount, and the new UIM limits resulting from the credit are then used to determine what the pro rata basis of sharing UIM coverage will be. Under Employers\u2019 position, both it and Nationwide would be credited with $50,000 because St. Paul paid plaintiff $100,000; therefore, Nationwide\u2019s available UIM coverage would be reduced from $200,000 to $150,000, and Employers\u2019 available UIM coverage would be reduced from $100,000 to $50,000. The total UIM coverage available would then be $200,000, and in comparing each of the defendant\u2019s UIM limits after giving credit for the St. Paul payment, Nationwide would be responsible for seventy-five percent of any entitlement plaintiff has to UIM coverage, and Employers would be responsible for twenty-five percent of any entitlement plaintiff has to UIM coverage. Employers\u2019 reliance on Sproles, however, is misplaced.\nIn Sproles, there were two UIM coverages of $100,000 each available to the plaintiff, and the tortfeasor\u2019s insurance carrier had paid plaintiff $25,000. This Court held that \u201cthe aggregate amount of $200,000 should have been reduced by $25,000, the only payment [the torfeasor\u2019s carrier] made, rather than $50,000; the maximum liability of each carrier should have been reduced by $12,500 rather than $25,000.\u201d Id. at 103, 394 S.E.2d at 695. Sproles therefore determined that when there are two insurance companies providing UIM coverage in the same amount, and the tortfeasor\u2019s insurance company has paid the plaintiff $25,000, the maximum liability of each UIM carrier should have been reduced equally by $12,500. Id. This holding does not mandate that where two UIM carriers provide coverage in different amounts, they are required to share equally a credit for payment made by the tortfeasor\u2019s insurance carrier. Indeed, a proper reading of Sproles is that the multiple UIM carriers are to share the credit pro rata. This is consistent with the language of Nationwide and Employers\u2019 policies which both require sharing the loss based on the proportion their respective liabilities bear to the \u201ctotal of all applicable limits.\u201d Furthermore, to share the liability in proportion to the coverage but not the credit in a like manner is irrational.\nBased on these principles, because \u201cthe total of all applicable limits\u201d for UIM coverage is $300,000, representing $200,000 from Nationwide and $100,000 from Employers, and Nationwide\u2019s [UIM] limit represents two-thirds of \u201call applicable [UIM] limits,\u201d it is entitled to a credit of $66,666.67, representing two-thirds of the $100,000 paid by St. Paul to plaintiff, and Employers is entitled to a credit of $33,333.33, which is one-third of St. Paul\u2019s payment to plaintiff. The trial court therefore correctly divided credit for St. Paul\u2019s payment between Nationwide and Employers. Under the same principles, the trial court correctly concluded that any future entitlement of plaintiff to UIM coverage should be shared on a pro rata basis based on \u201cthe ratio of each defendant\u2019s UIM limits to the total UIM coverage available.\u201d For these reasons, plaintiff has met its summary judgment burden of showing a lack of any triable issue, Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 341-42 (1992) (party moving for summary judgment has burden to show lack of any triable issue), and the decision of the trial court is\nAffirmed.\nJudges LEWIS and MARTIN, MARK D., concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Parker, Pollard & Brown, PC., by George C. Piemonte, for plaintiff-appellee.",
      "Baucom, Claytor, Benton, Morgan, Wood & White, P.A., by Rex C. Morgan, for defendant-appellant Nationwide Mutual Insurance Company.",
      "Caudle & Spears, P.A., by L. Cameron Caudle, Jr. and Timothy T. Leach, for defendant-appellant Employers Mutual Casualty Company."
    ],
    "corrections": "",
    "head_matter": "TONY ONLEY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY and EMPLOYERS MUTUAL CASUALTY COMPANY, Defendants\nNo. COA94-804\n(Filed 16 May 1995)\n1. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 intrapolicy and interpolicy stacking allowed\nN.C.G.S. \u00a7 20-279.21(b)(3) and (4), as they were in effect for this case, permitted plaintiff, who was a resident of the households of both his parents and his grandparents, to intrapolicy stack the UIM coverage provided in his parents\u2019 policy and to interpolicy stack the UIM limits of his grandparents\u2019 policy on top of the limits of his parents\u2019 policy for the purpose of determining whether the tortfeasor\u2019s vehicle was an underinsured vehicle.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nCombining or \u201cstacking\u201d uninsured motorist coverages provided in separate policies issued by the same insurer to different insureds. 23 ALR4th 108.\n2. Insurance \u00a7 528 (NCI4th)\u2014 two UIM carriers \u2014 pro rata credit for payment from tortfeasor\u2019s carrier\nWhere two UIM carriers provide coverage in different amounts, they are to share pro rata a credit for payment made by the tortfeasor\u2019s insurance carrier.\nAm Jur 2d, Automobile Insurance \u00a7 322.\nCombining or \u201cstacking\u201d uninsured motorist coverages provided in separate policies issued by the same insurer to different insureds. 23 ALR4th 108.\nAppeal by defendants from order entered 5 May 1994 in Mecklenburg County Superior Court by Judge Loto G. Caviness. Heard in the Court of Appeals 18 April 1995.\nParker, Pollard & Brown, PC., by George C. Piemonte, for plaintiff-appellee.\nBaucom, Claytor, Benton, Morgan, Wood & White, P.A., by Rex C. Morgan, for defendant-appellant Nationwide Mutual Insurance Company.\nCaudle & Spears, P.A., by L. Cameron Caudle, Jr. and Timothy T. Leach, for defendant-appellant Employers Mutual Casualty Company."
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  "file_name": "0686-01",
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