{ "id": 11913530, "name": "HARRY VASSEUR, Plaintiff v. ST. PAUL MUTUAL INSURANCE COMPANY, Defendant", "name_abbreviation": "Vasseur v. St. Paul Mutual Insurance", "decision_date": "1996-08-06", "docket_number": "No. COA95-458", "first_page": "418", "last_page": "426", "citations": [ { "type": "official", "cite": "123 N.C. App. 418" } ], "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": "46 ALR4th 771", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "65 ALR3d 851", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "2 ALR5th 922", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "55 ALR3d 216", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "467 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "\"an owned vehicle exclusion [applicable to first class insureds] is contrary to the terms of N.C.G.S. \u00a7 20-279.21(b)(4), whether it is judicially imposed or whether it is contained in the UIM portion of the policy.\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795937 ], "year": 1996, "pin_cites": [ { "parenthetical": "\"an owned vehicle exclusion [applicable to first class insureds] is contrary to the terms of N.C.G.S. \u00a7 20-279.21(b)(4), whether it is judicially imposed or whether it is contained in the UIM portion of the policy.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0482-01" ] }, { "cite": "444 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "671" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125974 ], "year": 1994, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0193-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "\"if the plaintiff had rejected the automatic UIM coverage, he could only have done so as stipulated in N.C.G.S. \u00a7 20-279.21(b)(4) [1991].\"" } ], "opinion_index": 0 }, { "cite": "333 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545295 ], "year": 1993, "pin_cites": [ { "parenthetical": "\"if the plaintiff had rejected the automatic UIM coverage, he could only have done so as stipulated in N.C.G.S. \u00a7 20-279.21(b)(4) [1991].\"" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0338-01" ] }, { "cite": "417 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "816" }, { "page": "816" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313718 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "683-84" }, { "page": "683-84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0681-01" ] }, { "cite": "456 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790154, 790155, 790225, 790136, 790074 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0114-02", "/nc/340/0114-05", "/nc/340/0114-01", "/nc/340/0114-04", "/nc/340/0114-03" ] }, { "cite": "452 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526044 ], "year": 1995, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0593-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "501" }, { "page": "498-99" } ], "opinion_index": 0 }, { "cite": "329 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555126 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "388 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "563", "parenthetical": "\"[w]here a policy defines a term, that definition is to be used\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309422 ], "year": 1990, "pin_cites": [ { "page": "142", "parenthetical": "\"[w]here a policy defines a term, that definition is to be used\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0133-01" ] }, { "cite": "376 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "763-64", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485985 ], "year": 1989, "pin_cites": [ { "page": "224-25", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0221-01" ] }, { "cite": "384 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491072, 2489257, 2490993, 2488279, 2491871 ], "year": 1989, "pin_cites": [ { "parenthetical": "citation omitted" } ], "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": "763", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "year": 1989, "pin_cites": [ { "page": "265", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "459 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "278", "parenthetical": "citing Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763, reh'g denied, 325 N.C. 437, 384 S.E.2d 546 (1989) (citation omitted)" }, { "page": "279" }, { "page": "283" }, { "page": "279" }, { "page": "279", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915984 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "449", "parenthetical": "citing Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763, reh'g denied, 325 N.C. 437, 384 S.E.2d 546 (1989) (citation omitted)" }, { "page": "450" }, { "page": "450" }, { "page": "450-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0444-01" ] }, { "cite": "463 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795946, 795958 ], "year": 1995, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0197-02", "/nc/342/0197-01" ] }, { "cite": "461 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "322", "parenthetical": "citations omitted" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "341 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793187 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "605", "parenthetical": "citations omitted" }, { "page": "606" }, { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0597-01" ] }, { "cite": "155 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "82", "parenthetical": "\"Laws in effect at the time of issuance of a policy of insurance become a part of the contract....\"" }, { "page": "82" } ], "opinion_index": 0 }, { "cite": "270 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569521 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "555", "parenthetical": "\"Laws in effect at the time of issuance of a policy of insurance become a part of the contract....\"" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0544-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "403 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537537, 2539785, 2542308, 2540999 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0577-01", "/nc/328/0577-02", "/nc/328/0577-03", "/nc/328/0577-04" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1991, "pin_cites": [ { "page": "47" }, { "page": "47" }, { "page": "47" }, { "page": "47" }, { "page": "47" }, { "page": "48" }, { "page": "146" }, { "page": "49" }, { "page": "148" }, { "page": "50", "parenthetical": "emphasis in original" }, { "page": "46" } ], "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "142" }, { "page": "142" }, { "page": "143" }, { "page": "143" }, { "page": "143" }, { "page": "144-45" }, { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] } ], "analysis": { "cardinality": 762, "char_count": 17279, "ocr_confidence": 0.755, "pagerank": { "raw": 3.0870730663708285e-07, "percentile": 0.8583813187564217 }, "sha256": "6eb1cbcf0f9b19737b60163615330fc5684fc84e4a1f9820193599f6073f797e", "simhash": "1:8507c172865f24c2", "word_count": 2768 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and SMITH concur." ], "parties": [ "HARRY VASSEUR, Plaintiff v. ST. PAUL MUTUAL INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nIn this declaratory judgment action, plaintiff appeals the trial court\u2019s determination that plaintiff was not afforded underinsured motorist coverage by a policy of insurance issued by defendant. We reverse the trial court.\nThe following pertinent facts and procedural information are undisputed: At all relevant times, plaintiff was an employee of Mountain Air Cargo (Mountain Air), the named insured in a policy issued by defendant. On 19 April 1993, plaintiff\u2019s motorcycle was struck by an automobile operated by an underinsured motorist while plaintiff was delivering materials to his supervisor within the course and scope of his employment. Plaintiff was severely injured in the collision, incurring medical bills and lost earnings of approximately $300,000, and sustaining significant permanent disability.\nPlaintiff exhausted the underinsured motorist\u2019s liability coverage of $100,000, and subsequently made a claim for underinsured motorist (UIM) coverage under Mountain Air\u2019s policy with defendant (the policy). Following defendant\u2019s denial of his claim, plaintiff filed the instant action seeking a declaratory judgment that he was entitled to UIM coverage under the policy.\nOn 28 February 1995, the trial court determined that \u201cthe defendant St. Paul Mutual Insurance Company affords no underinsured motorist coverage for the benefit of plaintiff,\u201d and directed that \u201cjudgment [be] entered in favor of defendant.\u201d Plaintiff appeals.\nPlaintiff contends that because Mountain Air, the named insured within the policy, did not properly reject UIM coverage, such coverage was automatically written into the policy in the same amount as the liability limits of $1,000,000. We agree.\nIn determining whether insurance coverage is provided by a particular policy, careful attention must be given to (1) the type of coverage, (2) the relevant statutory provisions, and (3) the terms of the policy. Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 142, 400 S.E.2d 44, 47, reh\u2019g denied, 328 N.C. 577, 403 S.E.2d 514 (1991).\nIn the case sub judice, the type of coverage at issue is UIM, and therefore the governing statute is the version of N.C. Gen. Stat. \u00a7 20-279.21(b)(4) in effect at the time the policy was issued. See White v. Mote, 270 N.C. 544, 555, 155 S.E.2d 75, 82 (1967) (\u201cLaws in effect at the time of issuance of a policy of insurance become a part of the contract....\u201d) Further,\n[w]hen a statute is applicable to the terms of an insurance policy, the provisions of the statute become a part of the policy, as if written into it. If the terms of the statute and the policy conflict, the statute prevails.\nIsenhour v. Universal Underwriters Ins. Co., 341 N.C. 597, 605, 461 S.E.2d 317, 322, reh\u2019g denied, 342 N.C. 197, 463 S.E.2d 237 (1995) (citations omitted).\nIt is undisputed that the applicable version of G.S. \u00a7 20-279.21(b)(4) provided as follows:\n(b) Such owner\u2019s policy of liability insurance:\n(4) Shall . . . provide underinsured motorist coverage, to be used only with a policy that is written at limits that exceed those prescribed by subdivision (2) [i.e. $25,000/$50,000] of this section and that afford uninsured motorist coverage as provided by subdivision (3) of this subsection, in an amount not to be less than the financial responsibility amounts for bodily injury liability as set forth in G.S. 20-279.5 nor greater than one million dollars ($1,000,000) as selected by the policy owner.\nThe coverage required under this subdivision shall not be applicable where any insured named in the policy rejects the coverage. An insured named in the policy may select different coverage limits as provided in this subdivision.\nRejection of this coverage for policies issued after October 1, 1986, shall be made in writing by the named insured on a form promulgated by the North Carolina Rate Bureau and approved by the Commissioner of Insurance.\nG.S. \u00a7 20-279.21(b)(4) (1991).\nThe Financial Responsibility Act (the Act), which includes G.S. \u00a7 20-279.21(b)(4), is \u201ca remedial statute which must be liberally construed in order to achieve the \u2018beneficial purpose intended by its enactment.\u2019 \u201d Hendrickson v. Lee, 119 N.C. App. 444, 449, 459 S.E.2d 275, 278 (1995) (citing Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763, reh\u2019g denied, 325 N.C. 437, 384 S.E.2d 546 (1989) (citation omitted)). \u201c[Protection of innocent victims who may be injured by financially irresponsible motorists\u201d has consistently been held to be the purpose of the Act, which purpose is \u201cbest served when the statute is interpreted to provide the innocent victim with the fullest possible protection.\u201d Proctor v. N.C. Farm Bureau Mutual Ins. Co., 324 N.C. 221, 224-25, 376 S.E.2d 761, 763-64 (1989) (citations omitted).\nTurning to the policy language, see Smith, 328 N.C. at 142, 400 S.E.2d at 47, we note it provides $1,000,000 liability coverage for \u201cAny Auto,\u201d the broadest category set out under the subheading \u201cCovered Autos,\u201d which itself is contained within the subsection \u201cAuto Liability Protection.\u201d \u201cAuto\u201d is defined in the general policy provisions, see C.D. Spangler Constr. Co. v. Industrial Crankshaft & Eng. Co., 326 N.C. 133, 142, 388 S.E.2d 557, 563 (1990) (\u201c[w]here a policy defines a term, that definition is to be used\u201d), as \u201cany land motor vehicle ... designed for travel on public streets or roads.\u201d \u201cAny auto,\u201d is \u201cany owned, rented, leased or borrowed auto. It includes hired, nonowned, newly acquired, replacement and temporary substitute autos.\u201d (Emphasis added.) A \u201cNonowned Auto[]\u201d is\nany auto that: you don\u2019t own, hire, rent, lease or borrow, and . . . used in the conduct of your business. It includes autos owned by your employees or partners or members of their households. But only while such autos are being used in the conduct of your business.\nHowever, UIM coverage under the policy is restricted to \u201cany owned auto,\u201d not specifically defined within the general policy definitions, but otherwise referred to in the policy as \u201cany auto that you own.\u201d \u201cYou\u201d is defined as \u201cthe named insured,\u201d which includes, inter alia, plaintiffs employer Mountain Air, but not plaintiff. Plaintiff argues persuasively that \u201c[defendant] cannot limit underinsurance coverage to only \u2018owned autos\u2019 if its policy provides liability coverage for \u2018any auto\u2019 used by the insured, unless it does so pursuant to G.S. \u00a7 20-279.21(b)(4).\u201d\nIn Hendrickson, this Court strictly enforced the requirement that UIM coverage may be rejected only \u201c \u2018in writing ... on a form promulgated by the North Carolina Rate Bureau and approved by the Commissioner of Insurance,\u2019 \u201d Hendrickson, 119 N.C. App. at 450, 459 S.E.2d at 279, in order to \u201cassure compensation for the innocent victims of uninsured or underinsured drivers\u201d \u2014 the primary purpose of the Act. Id. at 457, 459 S.E.2d at 283.\nIn the case sub judice, Mountain Air executed no rejection form promulgated by the Rate Bureau and approved by the Commissioner nor any form whatsoever. Notwithstanding, defendant insists that \u201c[Mountain Air\u2019s] selection of \u2018owned autos\u2019 for purposes of UIM coverage comports with the mandates of the Financial Responsibility Act.\u201d According to defendant, G.S. \u00a7 20-279.21(b)(4) \u201crequires that each automobile insurance policy issued in North Carolina have UIM coverage in the same amount found in the personal injury liability coverage,\u201d but that it contains no requirement that the \u201cscope\" of the policy be identical. Therefore, defendant concludes, an insurer may restrict UIM coverage only to certain automobiles covered under a policy\u2019s liability provisions without receiving the statutorily-required rejection of UIM insurance. This argument fails.\nRestriction of UIM coverage only to certain of the autos covered under a policy necessarily involves \u201crejection\u201d of UIM coverage for those autos afforded liability coverage but not UIM coverage. This \u201crejection\u201d must therefore comply with the mandates of G.S. \u00a7 20-279.21(b)(4). Mountain Air executed no rejection form in accordance with G.S. \u00a7 20-279.21(b)(4), and thus did not validly reject UIM coverage for \u201cnonowned autos.\u201d See Hendrickson, 119 N.C. App. at 450, 459 S.E.2d at 279. Mountain Air\u2019s policy with defendant therefore provided $1,000,000 UIM coverage upon such autos.\nWe next consider whether plaintiff may avail himself of this coverage. In Smith, 328 N.C. at 143, 400 S.E.2d at 47, our Supreme Court reiterated that under G.S. \u00a7 20-279.21(b)(3) and (b)(4), there are two classes of \u201cpersons insured:\u201d\n(1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and guest in such vehicle.\nClass one insureds are covered for purposes of UIM coverage \u201cregardless of whether the insured vehicle is involved in their injuries.\u201d However, class two insureds are \u201c \u2018persons insured\u2019 only when the insured vehicle is involved in the insured\u2019s injuries.\u201d Isenhour, 341 N.C. at 606, 461 S.E.2d at 322 (citing Smith, 328 N.C. at 143, 400 S.E.2d at 47). Indeed, defendant does not dispute that plaintiff should be considered a class two insured if he was \u201cinjured while occupying a motor vehicle to which the [p]olicy applied.\u201d\nAs pointed out above, \u201cauto\u201d is defined in the policy as \u201cany land motor vehicle . . . designed for travel on public streets or roads.\u201d Defendant makes no argument that plaintiff\u2019s motorcycle was not an \u201cauto.\u201d The policy definition of \u201cany autos\u201d includes \u201cnonowned autos,\u201d which further include \u201cautos owned by [the named insured\u2019s] employees . . . [b]ut only while such auto are being used in the conduct of [the named insured\u2019s] business.\u201d Defendant concedes plaintiff owned the motorcycle involved in the instant collision, and further that plaintiff\u2019s vehicle was \u201cbeing used in the conduct of [the named insured\u2019s] business.\u201d\nAccordingly, the motorcycle owned and operated by plaintiff at the time of the collision was an \u201cinsured vehicle\u201d under the policy. Plaintiff, a class two insured, was therefore a \u201cperson insured\u201d for \u201cUIM purposes,\u201d see Smith, 328 N.C. at 143, 400 S.E.2d at 47, and Isenhour, 341 N.C. at 606, 461 S.E.2d at 322, and entitled to UIM coverage under the policy in the amount of $1,000,000.\nNotwithstanding, defendant maintains that Smith, 328 N.C. 139, 400 S.E.2d 44, and Sproles v. Greene, 329 N.C. 603, 407 S.E.2d 497 (1991), mandate a ruling to the contrary. This argument is unfounded.\nThe policy of insurance in Smith provided more extensive UIM coverage than liability coverage. Smith, 328 N.C. at 144-45, 400 S.E.2d at 48. Our Supreme Court emphasized that\nthe very nature of liability insurance coverage is different from UM/UIM insurance coverage. The former protects covered persons from the consequences of their own negligence; the latter protects covered persons from the consequences of the negligence of others.\nId. at 146, 400 S.E.2d at 49. Therefore, the court concluded,\nwhile the statutory scheme requires the insurance company to offer UM/UIM coverages only if liability coverages exceed the minimum statutory requirement and in an amount equal to the limits of bodily injury liability insurance, nothing in the statute requires that the scope of coverage be the same.\nId. at 148, 400 S.E.2d at 50 (emphasis in original).\nWe do not quarrel with defendant\u2019s statement that \u201c[t]he Supreme Court [in Smith] indicated that disparate treatment of the Liability and UIM provisions is entirely permissible and in fact comports with the distinctions found in the statutory authorization for these coverages.\u201d Defendant also properly cites Sproles, 329 N.C. at 610, 407 S.E.2d at 501, wherein our Supreme Court upheld an \u201cowned autos only\u201d policy restriction, identical to the one sub judice, which narrowed the scope of protection afforded by the policy\u2019s UIM coverage to class two insureds.\nNevertheless, defendant\u2019s reliance upon these cases is misplaced. Significantly, issuance of the policies in both Smith, 328 N.C. at 141, 400 S.E.2d at 46, and Sproles, 329 N.C.at 606, 407 S.E.2d at 498-99, took place at a time when earlier versions of G.S. \u00a7 20-279.21(b)(4) were in effect. These versions permitted rejection of UIM coverage, but failed to specify a particular method of rejection. (See G.S. \u00a7 20-279.21(b)(4) (1983) and (1985), providing merely that \u201c[t]he coverage required under this subdivision shall not be applicable where any insured named in the policy rejects the coverage.\u201d)\nIn 1986, the statute was amended to provide, inter alia,\n[r]ejection of this coverage for policies issued after October 1, 1986 shall be made in writing by the named insured on a form promulgated by the North Carolina Rate Bureau and approved by the Commissioner of Insurance.\nMaryland Casualty Co. v. Smith, 117 N.C. App. 593, 594, 452 S.E.2d 318, 319, disc. review denied, 340 N.C. 114, 456 S.E.2d 316 (1995). See also 1985 N.C. Sess. Laws (Reg. Sess. 1986) ch. 1027. Indeed, the version of G.S. \u00a7 20-279.21(b)(4) in effect 1 August 1992, issuance date of the instant policy, specifically mandated that rejection of or selection of different, limits for UIM coverage \u201cshall be made in writing ... on a form promulgated by the North Carolina Rate Bureau and approved by the Commissioner of Insurance.\u201d G.S. \u00a7 20-279.21(b)(4) (1991) (emphasis added); see also Watson v. American National Fire Insurance Co., 106 N.C. App. 681, 683-84, 417 S.E.2d 814, 816 (1992), aff'd, 333 N.C. 338, 425 S.E.2d 696 (1993) (\u201cif the plaintiff had rejected the automatic UIM coverage, he could only have done so as stipulated in N.C.G.S. \u00a7 20-279.21(b)(4) [1991].\u201d). As noted above, we must apply the version of G.S. \u00a7 20-279.21(b)(4) in effect at the time the policy was issued. See White, 270 N.C. at 555, 155 S.E.2d at 82.\nOur holding should not be construed to invalidate the \u201cdisparate treatment\u201d of liability and UIM coverage allowed by our Supreme Court in Smith, which \u201c[s]ince Smith, . . . has made even broader statements about the extent of UIM coverage.\u201d Nationwide Mutual Ins. Co. v. Mabe, 115 N.C. App. 193, 205, 444 S.E.2d 664, 671 (1994), aff\u2019d, 342 N.C. 482, 467 S.E.2d 34 (1996) (\u201can owned vehicle exclusion [applicable to first class insureds] is contrary to the terms of N.C.G.S. \u00a7 20-279.21(b)(4), whether it is judicially imposed or whether it is contained in the UIM portion of the policy.\u201d). Equally erroneous would be to view our holding as proscribing the applicability of \u201cowned autos only\u201d clauses to class two insureds approved by Sproles. Instead, we simply interpret the mandate of G.S. \u00a7 20-279.21(b)(4) to be precisely what the statutory language provides, i.e., that \u201crejection of or selection of different coverage limits for underinsured motorist coverage . . . shall be in writing\u201d on the form approved by the Commissioner of Insurance. See Hendrickson, 119 N.C. App. at 450-51, 459 S.E.2d at 279 (emphasis added); and Watson, 106 N.C. App. at 683-84, 417 S.E.2d at 816 (1992)\nFor the reasons stated above, the decision of the trial court is reversed.\nReversed.\nJudges JOHNSON and SMITH concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "DeVore & Acton, P.A., by Fred W. DeVore, III, for plaintiff - appellant.", "Kurdys & Lovejoy, by Scott C. Lovejoy and Jeffrey S. Bolster, for defendant-appellee." ], "corrections": "", "head_matter": "HARRY VASSEUR, Plaintiff v. ST. PAUL MUTUAL INSURANCE COMPANY, Defendant\nNo. COA95-458\n(Filed 6 August 1996)\n1. Insurance \u00a7 533 (NCI4th)\u2014 rejection of UIM coverage\u2014 requirements not met \u2014 UIM coverage provided\nSince restriction of UIM coverage only to certain of the autos covered under a policy necessarily involves \u201crejection\u201d of UIM coverage for those autos afforded liability coverage but not UIM coverage, the \u201crejection\u201d must therefore comply with the mandates of N.C.G.S. \u00a7 20-279.21(b)(4), and because plaintiffs employer executed no rejection form in accordance with the statute, and thus did not validly reject UIM coverage for \u201cnonowned autos,\u201d plaintiff\u2019s employer\u2019s policy with defendant therefore provided $1,000,000 UIM coverage for such autos.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 304 et seq.\nConstruction of statutory provision governing rejection or waiver of uninsured motorist coverage. 55 ALR3d 216.\n\u201cExcess\u201d or \u201cUmbrella\u201d insurance policy as providing coverage for accidents with uninsured or underinsured motorists. 2 ALR5th 922.\n2. Insurance \u00a7 528 (NCI4th)\u2014 motorcycle operated in course of employer\u2019s business \u2014 employee entitled to UIM coverage\nA motorcycle owned and operated by plaintiff in the course and conduct of his employer\u2019s business at the time of the collision was an \u201cinsured vehicle\u201d under the terms of the employer\u2019s policy with defendant, and plaintiff, a class two insured, was therefore a \u201cperson insured\u201d for \u201cUIM purposes\u201d and entitled to UIM coverage under the policy in the amount of $1,000,000.\nAm Jur 2d, Automobile Insurance \u00a7 315.\nWhat constitutes \u201cAutomobile\u201d for purposes of uninsured motorist provisions. 65 ALR3d 851.\nUninsured motorist insurance: Injuries to motorcyclist as within affirmative or exclusionary terms of automobile insurance policy. 46 ALR4th 771.\nAppeal by plaintiff from judgment entered 28 February 1995 by Judge Chase B. Sanders in Mecklenburg County Superior Court. Heard in the Court of Appeals 31 January 1996.\nDeVore & Acton, P.A., by Fred W. DeVore, III, for plaintiff - appellant.\nKurdys & Lovejoy, by Scott C. Lovejoy and Jeffrey S. Bolster, for defendant-appellee." }, "file_name": "0418-01", "first_page_order": 452, "last_page_order": 460 }