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  "name": "FIELDCREST CANNON, INC., Plaintiff v. FIREMAN'S FUND INSURANCE COMPANY; THE NORTH RIVER INSURANCE COMPANY; and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendants",
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    "judges": [
      "Judges MARTIN, John C. and McGEE concur."
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    "parties": [
      "FIELDCREST CANNON, INC., Plaintiff v. FIREMAN\u2019S FUND INSURANCE COMPANY; THE NORTH RIVER INSURANCE COMPANY; and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendants"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nPlaintiff Fieldcrest Cannon, Inc. brought this action to recover legal defense costs incurred in defending its predecessor, Cannon Mills, Inc. (hereinafter \u201cCannon\u201d), against certain employment discrimination claims during the 1980s, and to recover sums paid pursuant to judgments and settlements of certain of those claims. Cannon had been insured by defendant Fireman\u2019s Fund Insurance Company (hereinafter \u201cFireman\u2019s Fund\u201d) under four (4) consecutive comprehensive general liability policies written as primary insurance and covering occurrences during a period from 15 May 1978 through and including 15 May 1982. All of defendant Fireman\u2019s Fund\u2019s policies are identical in form and contain the same language and coverages.\nDefendant North River Insurance Company (hereinafter \u201cNorth River\u201d) and Mission Insurance Company (hereinafter \u201cMission\u201d) insured Cannon pursuant to \u201cumbrella\u201d liability policies which were written in excess of defendant Fireman\u2019s Fund\u2019s primary insurance. Defendant North River\u2019s policy covered occurrences during a period from 15 May 1977 through 15 May 1980, and the Mission policy covered occurrences during the period of 15 May 1980 through 15 May 1981. Mission became insolvent in 1987, and defendant North Carolina Insurance Guaranty Association (hereinafter \u201cGuaranty\u201d) assumed responsibility for certain of Mission\u2019s obligations, as provided and limited by the North Carolina Insurance Guaranty Association Act, N.C. Gen. Stat. \u00a7 58-48-1, et seq.\nPlaintiff purchased the above-mentioned insurance policies through an insurance broker, Johnson & Higgins Carolinas, Inc. (hereinafter \u201cJohnson & Higgins\u201d). At all times relevant to this action, Johnson & Higgins also acted as agent for defendant Fireman\u2019s Fund pursuant to a written agency agreement. Johnson & Higgins\u2019 role as Cannon\u2019s insurance broker terminated in 1982.\nThere are six (6) underlying claims of employment discrimination at issue in this action:\n1. Stanley Rosenthal filed a lawsuit against Cannon in the state courts of New York on 6 January 1982, alleging wrongful termination of employment, individual and systemic age discrimination, individual and systemic religious discrimination, negligent and intentional infliction of emotional distress, mental and emotional pain and suffering resulting in a decreased life expectancy, and damage to reputation, (hereinafter \u201cRosenthal suit\u201d).\n2. Patricia Price filed three (3) EEOC complaints against Cannon in 1981, alleging individual and systemic sex discrimination, harassment and defamation, (hereinafter \u201cPrice EEOC complaint\u201d).\n3. Nine (9) female employees of Cannon filed EEOC complaints from December 1980 through May 1981 alleging sex discrimination. These complaints were subsequently consolidated for investigation by the EEOC as a potential class action involving sex discrimination in 1981. (hereinafter \u201cEEOC sex class investigation\u201d).\n4. Nell Wilson filed an EEOC complaint against Cannon on 15 May 1980, amended on 20 August 1980, and a related lawsuit before the United States District Court, District of South Carolina, on 27 May 1981, alleging sex and age discrimination, (hereinafter \u201cWilson suit\u201d).\n5. Patricia Price filed a lawsuit against Cannon before the United States District Court, Middle District of North Carolina, on 11 May 1982, alleging sex and age discrimination, (hereinafter \u201cPrice suit\u201d).\n6. On 18 October 1984, Patricia Price, Nancy Lytton and Agatha Overcash filed a lawsuit against Cannon, including a motion for class certification, before the United States District Court, Middle District of North Carolina, based upon their EEOC complaints, alleging sex discrimination and claims of defamation by Price, (hereinafter \u201cOvercash/class action\u201d).\nIn regards to the Rosenthal suit, Cannon provided Johnson & Higgins, as defendant Fireman\u2019s Fund\u2019s agent, with.timely written notice of the pending action by letter dated 25 January 1982. By letter dated 12 February 1982, Johnson & Higgins notified defendant Fireman\u2019s Fund of the Rosenthal suit and defendant Fireman\u2019s Fund denied coverage of the claims asserted by Mr. Rosenthal and refused to defend Cannon by letter dated 18 February 1982. Defendant Fireman\u2019s Fund\u2019s letter of denial characterized the claims in Mr. Rosenthal\u2019s complaint simply as discrimination claims, uncovered by plaintiffs policy.\nAfter defendant Fireman\u2019s Fund refused to defend Cannon against the Rosenthal suit, Johnson & Higgins reported that suit to Mission, through Mission\u2019s general agent, Sayre & Toso, Inc. Johnson & Higgins advised Mission\u2019s agent that the primary insurer, defendant Fireman\u2019s Fund, had denied coverage and requested that Mission accept Cannon\u2019s defense under its umbrella policy. Subsequently, Mission agreed to defend Cannon against the Rosenthal suit by reimbursing its defense costs. Thereafter, Mission did reimburse Cannon\u2019s defense cost in the Rosenthal suit from the beginning of the case through February 1993, in the total of $7,245.72.\nIn early 1982, one of Cannon\u2019s in-house attorneys, Susan Hartzoge Gray, received a copy of a letter from Johnson & Higgins to Cannon\u2019s insurance manager, Joe Lambert, regarding the status of Mission\u2019s reimbursement of Cannon\u2019s defense costs in the Rosenthal suit. Upon receiving this letter, Ms. Gray reported the pending claims (the Price EEOC complaint, the EEOC sex class investigation, the Price suit and the Wilson suit) to Mr. Lambert, Cannon\u2019s insurance manager, who immediately reported the claims to Johnson & Higgins.\nIn February or March 1984, Gray, Lambert and Wayne Johnson, Johnson & Higgins\u2019 claims manager, met to discuss defendant Fireman\u2019s Fund\u2019s refusal to cover the Rosenthal suit, and the possibility of insurance coverage for the additional pending claims \u2014 the Price EEOC complaint, the EEOC sex class investigation, the Price suit and the Wilson suit. Because of Johnson\u2019s belief that defendant Fireman\u2019s Fund\u2019s policies would not cover the additional pending claims and that defendant Fireman\u2019s Fund would refuse to defend Cannon with respect to those claims \u2014 as they had with the Rosenthal suit \u2014 but that Mission or defendant North River might accept the defense, it was decided to report the additional claims directly to Mission and defendant North River, the umbrella carriers, rather than to defendant Fireman\u2019s Fund. In fact, evidence tended to show and the trial court found as fact that defendant \u201cFireman\u2019s Fund did not receive actual notice of the Price and Wilson lawsuits or the EEOC Class Investigation until the plaintiff filed this action.\u201d Later, after receiving notice of the additional pending claims against Cannon, the umbrella carriers acknowledged notice of the additional claims and corresponded with Johnson & Higgins seeking additional information about those claims.\nBy letter dated 5 February 1985, Cannon notified Johnson & Higgins of the Overcash/class action, which was filed in October 1984. Johnson & Higgins subsequently reported this lawsuit, by letter dated 14 February 1985, to defendant North River and Mission, requesting that they provide Cannon with a defense. By letter dated 22 October 1985, Mission\u2019s agent, Sayer & Toso, requested coverage determination from defendant Fireman\u2019s Fund as to the Overcash/class action. Thereafter, on 22 November 1985, Johnson & Higgins sent defendant Fireman\u2019s Fund notice of the Overcash/cl ass action. By letter dated 4 December 1985, defendant Fireman\u2019s Fund notified Cannon\u2019s insurance manager, Joe Lambert, that defendant Fireman\u2019s Fund\u2019s insurance policies did not provide coverage for the Overcash/class action.\nFollowing defendant Fireman\u2019s Fund refusal to defend Cannon in the Overcash/class action, Johnson & Higgins continued to correspond with the agents of the umbrella carriers about that case and the other additional employment discrimination claims throughout 1986 and early 1987. In 1986, agents for both umbrella carriers indicated that they would provide a defense to Cannon, or reimburse Cannon\u2019s defense costs \u2014 as they had agreed in the Rosenthal suit\u2014 with respect to said claims.\nAfter Mission became insolvent in early 1987, defendant Guaranty began receiving and responding to the communications from Johnson & Higgins regarding the reimbursement of plaintiff\u2019s defense costs in the Rosenthal suit and the additional underlying claims. By letter dated 19 October 1987, counsel for defendant Guaranty informed plaintiff that defendant Guaranty would not reimburse plaintiff\u2019s defense costs in the Rosenthal suit or the additional underlying claims, since defendant Guaranty thought that defendant Fireman\u2019s Fund\u2019s policies covered those claims. Defendant Guaranty also advised plaintiff that it would not consider further reimbursement of plaintiff\u2019s defense costs until plaintiff first exhausted all legal remedies against defendant Fireman\u2019s Fund.\nConsequently, plaintiff contacted defendant Fireman\u2019s Fund and notified the company of defendant Guaranty\u2019s position, and requested a meeting to discuss coverage issues regarding the underlying discrimination claims. Upon receiving no response from defendant Fireman\u2019s Fund, plaintiff filed an action (88CVS14786), on 5 December 1988, against defendant Fireman\u2019s Fund and the umbrella carriers for a declaratory judgment, and for reimbursement of its defense costs, settlement payments and judgments incurred in the underlying claims. Thereafter, on 2 August 1990, plaintiff filed a notice of voluntary dismissal of the December 1988 action pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.\nPlaintiff filed its complaint in the present action on 12 April 1991, within one (1) year of its voluntary dismissal of the December 1988 action, seeking declaratory judgment and compensatory damages for defendants\u2019 failure to defend and indemnify Cannon with respect to the six (6), above-listed, underlying employment discrimination complaints and/or lawsuits.\nFollowing discovery, all of the parties filed cross-motions for summary judgment. These motions came on for hearing at the 8 March 1993 civil session of Mecklenburg County Superior Court before Judge Forrest A. Ferrell.\nOn 26 April 1993, Judge Ferrell entered an order finding (1) that defendant Fireman\u2019s Fund\u2019s general liability policies afforded plaintiff coverage for the underlying discrimination claims; (2) that defendant North River\u2019s umbrella policy afforded plaintiff excess coverage for the underlying discrimination claims; (3) that the issues of statute of limitations, late notice, and damages were to be decided by the jury; (4) that defendants Fireman\u2019s Fund and North River\u2019s motions for summary judgment were denied; and (5) that defendant Guaranty\u2019s motion for summary judgment was granted. Further, on 30 June 1993, Judge Ferrell entered an order, granting defendant North River\u2019s motion to dismiss on the grounds that defendant North River, as an excess carrier, could not be liable for the underlying discrimination claims because all of the parties had agreed that the value of the discrimination claims would not exceed the limits of defendant Fireman\u2019s Fund\u2019s primary insurance.\nBy orders entered 10 August and 11 August 1993, Judge Robert M. Burroughs referred the issue of plaintiff\u2019s damages for reimbursement of defense costs to a referee. The referee filed his report on 18 May 1994 and, over objections of defendant Fireman\u2019s Fund, the referee\u2019s report was adopted in full by the court, pursuant to an order of Judge Beverly T. Beal. Judge Beal\u2019s order found that Cannon had incurred reasonable attorneys\u2019 fees and expenses of $223,015.77 prior to 5 December 1985 in defending the underlying discrimination claims, and in the amount of $243,210.29 thereafter.\nThe issues of notice, statute of limitations and plaintiffs damages in recovering settlement and judgment payments with respect to the underlying claims were tried before Judge John M. Gardner during the 19 September 1994 civil session of Mecklenburg County Superior Court. Following a non-jury trial, Judge Gardner entered judgment in plaintiff\u2019s favor on 7 December 1994, finding defendant Fireman\u2019s Fund liable to plaintiff for damages in the principal amount of $526,726.06. Defendant Fireman\u2019s Fund appeals from Judge Ferrell\u2019s 26 April 1993 order and from Judge Gardner\u2019s 7 December 1994 judgment. Plaintiff cross-appeals from Judge Ferrell\u2019s 26 April 1993 order, to the extent that it granted summary judgment in favor of defendant Guaranty, and from Judge Ferrell\u2019s 30 June 1993 order dismissing defendant North River from this action.\nI.\nDefendant Fireman\u2019s Fund assigns as error the trial court\u2019s grant of plaintiff\u2019s motion for summary judgment and denial of its motion for summary judgment. Specifically, defendant Fireman\u2019s Fund argues that its request for admissions, served upon plaintiff in the earlier action filed by plaintiff against defendants (88CVS14876), were deemed admitted in regards to both the later and instant action, upon plaintiff\u2019s failure to respond to those requests; and thus, there were no material issues of fact and it was entitled to summary judgment as a matter of law. We find this argument to be unpersuasive.\nSummary judgment is a mechanism designed to eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim of a party is exposed. Hall v. Post, 85 N.C. App. 610, 355 S.E.2d 819 (1987), rev\u2019d on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988). On appeal, a trial court\u2019s grant of summary judgment is fully reviewable. Va. Electric and Power Co. v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). Appellate review of a trial court\u2019s grant of summary judgment addresses the trial court\u2019s conclusions as to whether, viewing the evidence in the light most favorable to the non-moving party, (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987) (citing N.C.R. Civ. P. 56(c); Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980)). If the appellate court determines that the trial court\u2019s conclusions as to these two questions of law were correct, then summary judgment was properly granted. Id.\nRule 36 of the North Carolina Rules of Civil Procedure provides in pertinent part:\n(a) Request for Admission. \u2014 A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b). . . . The matter is admitted unless, within 30 days after service of the request, or within shorter or longer time as the court may allow ....\n(b) Effect of admission . . . Any admission made by a party under this rule is for the purpose of pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 36 (1990) (emphasis added). If a party fails to respond to Rule 36 requests for admissions within the thirty . (30) day period prescribed by the Rule, the facts in the requests are deemed admitted. Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990); Whitley v. Coltrane, 65 N.C. App. 679, 309 S.E.2d 712 (1983). Further, when facts are admitted pursuant to Rule 36(b), these facts have been held to be sufficient to support a grant of summary judgment. Rhoads v. Bryant, 56 N.C. App. 635, 289 S.E.2d 637, disc. review denied, 306 N.C. 386, 294 S.E.2d 211 (1982). However, Rule 36(b) is clear in its mandate that admissions made in one action may not be used against the party who made them in any other proceeding outside of the one pending. See Tidwell v. Booker, 27 N.C. App. 435, 219 S.E.2d 648 (1975), rev\u2019d on other grounds, 290 N.C. 98, 225 S.E.2d 816 (1976) (finding that Rule 36(c) of the North Carolina Rules of Civil Procedure prevented the finding of paternity in a 1963 judgment to be admissible in a 1974 civil action as a judicial admission). See also Matter of Cassidy, 892 F.2d 637 (7th Cir.), cert. denied, 498 U.S. 812, 112 L. Ed. 2d 24 (1990) (finding that admissions obtained in tax court are not allowed in bankruptcy court under a Tax Court Rule, much like Rule 36(b)); Seay v. International Association of Machinists, 360 F. Supp. 123, 124 (C.D. Cal. 1973) (noting the importance of admissions in expediting trials, but also noting the limitation placed upon admissions being utilized in the pending action only under Rule 36 of the Federal Rules of Civil Procedure); Weis-Fricker Exp. & Imp. Corp. v. Hartford Acc. & I. Co., 143 F. Supp. 137 (N.D. Fla. 1956) (finding that admissions in Nicaragua \u201cdiscovery action\u201d were inadmissible in United States District Court).\nIn the instant case, plaintiff filed its complaint in 88CVS14786 on 5 December 1988. Defendants served their answer by April 1989, and the parties proceeded to engage in extensive discovery. In fact, on 26 April 1990, defendant Fireman\u2019s Fund served plaintiff with a request for admissions, which was never answered nor objected to. Subsequently, on 2 August 1990, plaintiff voluntarily dismissed the action (88CVS14786) pursuant to Rule 41(a)(1) of our Rules of Civil Procedure \u2014 admittedly, in great part to avoid the effect of any \u201cdeemed\u201d admissions to defendant Fireman\u2019s Fund\u2019s request for admissions. Thereafter, on 12 April 1991, plaintiff instituted the instant action.\nIt is true, as defendant Fireman\u2019s Fund contends, that Rule 36 serves to reduce the amount of trial time needed to resolve oftentimes complicated matters. However, we recognize the necessity of construing Rule 36 to comport with the intent of our legislators. Rule 36 of the North Carolina Rules of Civil Procedure, like Federal Rule 36 (as amended in 1970), specifically limits the effect of a deemed admission. Moreover, our legislators, like the drafters of the Federal Rules of Civil Procedure, in promulgating section (b) of Rule 36, were cognizant of the necessity to weigh the equities in allowing deemed admissions which were products of an earlier action to be utilized in a later action. Therein, they recognized the need to sacrifice earlier-obtained, relevant evidence (e.g., deemed admissions) in later litigation, in order to resolve an action on the true merits. Particularly, we find most instructive that our legislators, comparable to the drafters of the Federal Rules, specifically limited the use of Rule 36 admissions to \u201cthe pending action only.\u201d See N.C.G.S. \u00a7 1A-1, Rule 36(a),(b).\nDefendant Fireman\u2019s Fund references Bowlin v. Duke University, 119 N.C. App. 178, 457 S.E.2d 757, disc. review denied, 342 N.C. 190, 463 S.E.2d 233 (1995), in support of its argument. However, we find such reliance to be misplaced. While an original claim may be preserved when a Rule 41 dismissal is taken, the proceeding is not. At the juncture where- a party takes a Rule 41 dismissal, that action or proceeding ends. Further, when that party refiles that action within the one (1) year period allowed by Rule 41, another \u201caction\u201d or \u201cproceeding\u201d is begun. Thus, Bowlin lends no credence to defendant Fireman\u2019s Fund\u2019s argument that admissions obtained under Rule 36 may be utilized beyond the confines of \u201cthe pending action only.\u201d Defendant Fireman\u2019s Fund\u2019s argument, therefore, fails.\nII.\nNext, defendant Fireman\u2019s Fund argues that the trial court committed error in concluding as a matter of law that it provided insurance coverage for the underlying employment discrimination claims and suits brought against plaintiff. An insurer\u2019s duty to defend arises when the claim against the insured sets forth facts representing a risk covered by the terms of the policy. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374, reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986). The duty to defend is much broader than the duty to indemnify, and may attach even in an action in which no damages axe ultimately awarded. Id.\nDefendant Fireman\u2019s Fund\u2019s policies indemnified Cannon for \u201call sums which the insured shall become legally obligated to pay as damages because of personal [or bodily] injury\u201d and required defendant Fireman\u2019s Fund to \u201cdefend any suit against the insured seeking damages on account of such injury.\u201d \u201cPersonal injury\u201d is defined in two sections of defendant Fireman\u2019s Fund\u2019s policies. The \u201cEmployee Benefits Liability Insurance\u201d portion of defendant Fireman\u2019s Fund\u2019s policies provides the following:\nThe Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages on account of any claim for injury caused by negligent act or omission in the administration of the named insured\u2019s employee benefit program, and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company\u2019s liability has been exhausted by payment of judgments or settlements.\nThe \u201cAdditional Definitions\u201d section of the \u201cEmployees Benefits Liability Insurance\u201d part of the policies further provide:\n\u201cPersonal injury\u201d means injury arising out of one or more of the following offenses:\n(a) False arrest, detention or imprisonment, or malicious prosecution;\n(b) the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual\u2019s right of privacy;\n(c) wrongful entry or eviction, or other invasion of the right of private occupancy; or\n(d) discrimination.\n(emphasis added). The second definition of \u201cpersonal injury\u201d is contained in the \u201cAdditional Definitions\u201d section of the \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d which is a part of the \u201cComprehensive General Liability Insurance\u201d portion of the policies, and includes items (a) through (c) of the first definition, but is silent as to discrimination.\n\u201cBodily injury\u201d is defined thusly: \u201c \u2018bodily injury\u2019 means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom[.]\u201d The \u201cComprehensive General Liability Insurance\u201d section of the policies provides,\nThe Company [(defendant Fireman\u2019s Fund)] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . bodily injury or . . . property damage to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent, ....\nThis coverage was explicitly stated to be inapplicable \u201cto bodily injury to any employee of the insured arising out of and in the course of employment by the insured.\u201d\nA. The Applicable Definition of \u201cPersonal Iniurv\u201d\nFirst, plaintiff argues that the second definition of personal injury (found in the \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d portion of the policies) does not indicate that it is exclusive of the first definition (found in the \u201cEmployee Benefits Liability Insurance\u201d section of the policies) and does not expressly remove discrimination from the concept of personal injury. As such, plaintiff contends that any ambiguity between the two definitions must be construed against the drafter, defendant Fireman\u2019s Fund. Brown v. Lumbermens Mut. Casualty Co., 326 N.C. 387, 392, 390 S.E.2d 150, 153 (1990). While it is true, as plaintiff contends, that the canons of insurance policy construction provide that an insurance policy must be given the same meaning throughout the various coverages in the absence of a clear expression therein of an intent that the term be given different meanings with reference to the different coverages in the same policy, Grant v. Insurance Co., 295 N.C. 39, 54, 243 S.E.2d 894, 904 (1978), it appears to this Court that the definition of \u201cpersonal injury\u201d under the \u201cEmployee Benefits Liability Insurance\u201d coverage part of plaintiff\u2019s insurance policies is not applicable to the remaining coverages of the policies. The \u201cEmployee Benefits Liability Insurance\u201d section of the policies are clearly labelled as such, and appears separate and apart from the \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d part of plaintiffs policies. It seems clear, on the face of the policies, then, that the two definitions are exclusive of each other. Moreover, as the underlying actions do not appear to arise out of or during the course of the administration of plaintiffs employee benefits program, the definition of personal injury included therein would not work to plaintiffs advantage in this case. See Tomlin v. State Farm Mut. Auto. Liability, 290 N.W.2d 285 (Wis. 1980). We must still, however, examine whether the underlying discrimination claims fall within the applicable definition found in the \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d section of the \u201cComprehensive General Liability Insurance\u201d part of defendant Fireman\u2019s Fund\u2019s policies.\nB. Coverage for \u201cPersonal Iniurv\u201d Under \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d\nWhile we are aware that some courts have found discrimination claims to be akin to claims for personal injury, see Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 96 L. Ed. 2d 572 (1987); Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254 (1985); see also Redfield v. Insurance Co. of North America, 940 F.2d 542 (9th Cir. 1991) (finding that discrimination damages awarded to a terminated employee are tort-type recovery for personal injuries that are excludable from gross income for purposes of federal income tax), we are also cognizant of several courts\u2019 decisions that hold that the definitions of a term, when specifically defined in a policy, will govern in a subsequent action. See Liberty Bank of Montana v. Travelers Idem. Co., 870 F.2d 1504 (9th Cir. 1989) (finding that the policy specifically provided coverage only for those claims which arose out of an enumerated tort); United Pacific Insurance Co. v. First Interstate Bancsystems of Montana, 690 F. Supp. 917 (D. Mont. 1988) (referencing Aetna Cas. & Sur. Co. v. First Sec. Bank of Bozeman, 662 F. Supp. 1126 (D. Mont. 1987), and finding that the underlying damages did not fall within the specific definitions of bodily injury or property damage contained in the policy); see also Jefferson-Pilot Fire & Cas. v. Sunbelt Beer, 839 F. Supp. 376 (D.S.C. 1993) (stating that what is not plainly included within the enumerated torts is by definition excluded). In this case, personal injury is defined in the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies to include,\n1. False arrest, detention, imprisonment, or malicious prosecution;\n2. wrongful entry or eviction or other invasion of the right of private occupancy;\n3. the publication or utterance\n(a) of a libel or slander or other defamatory or disparaging material,\n(b) or in violation of an individual\u2019s right of privacy ....\nWe must now determine, whether the. underlying actions fall within the \u201cpersonal injury\u201d definition found in the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies. This is a case of first impression in the state of North Carolina, and therefore, we seek guidance from courts of other jurisdictions which have addressed this same issue. In Aetna, 662 F. Supp. 1126, a discharged bank employee alleged claims for breach of the implied covenant of good faith and fair dealing, attendant contracts of employment, and for wrongful termination. She sought punitive damages and damages for lost wages, diminished earning capacity, harm to her reputation, and emotional distress. Aetna brought a declaratory action to discern its liability to provide coverage for damages sought by the discharged bank employee. The insuring clause for personal injury provided that the company would defend and indemnify the insured for all sums which the insured became legally obligated to pay as a result of personal injury. Id. \u201cPersonal injury\u201d was defined as \u201cinjury arising out of one or more of the following offenses committed during the policy period.\u201d Pertinently, \u201c(3) a publication or utterance (a) of a libel or slander or other defamatory or disparaging material....\u201d Id. at 1131. Aetna contended that because there were no allegations of libel, slander, defamation or disparagement in the complaint, there was no coverage under the policy. The employer-bank, however, contended that the employee\u2019s allegations that another bank employee had told her that she was fired could constitute defamatory or disparaging material; therefore, the language of the endorsement was ambiguous. Id. The Montana District Court held that the \u201cpersonal injury\u201d endorsement \u201capplied only to claims actually arising out of the enumerated torts [in the policy].\u201d Id. at 1132 (citing American & For. Ins. v. Church Sch., Diocese of Va., 646 F. Supp. 628 (E.D. Va. 1986)). In the end, the court held that the employee\u2019s claims therein were for \u201cinjuries arising out of the torts of bad faith and wrongful termination, [and] not out of the defamation torts set forth in the \u2018Broad Form Comprehensive General Liability Endorsement.\u2019 \u201d Id. Accordingly, the court held that Aetna\u2019s policy afforded the bank no coverage as the complaint in the underlying action failed to allege any cause of action for defamation, as necessary before the \u201cpersonal injury\u201d endorsement could be applied. Aetna, 662 F. Supp. 1126; accord Liberty Bank, 870 F.2d 1504. While a complainant may allege damages to reputation, and mental and emotional distress arising from the complainant\u2019s discharge or failure to hire, in violation of his/her constitutional rights, such damages do not necessitate a claim for defamation. See Aetna, 662 F. Supp 1126; Liberty Bank, 870 F.2d 1504; see also American Motorists v. Allied-Sysco Food, 24 Cal.Rptr.2d 106 (Cal. Ct. App. 1962) (holding that the American Motorist Insurance Company\u2019s excess policy did not provide coverage for \u201chumiliation, anguish, embarrassment and emotional distress\u201d resulting from Allied-Sysco Food Services\u2019 sexually discriminatory practices, nor did the discrimination portion of the policy provide coverage for said damages).\nThe term defamation encompasses two distinct torts, libel and slander. Generally, libel is written, while slander is oral. Tallent v. Blake, 57 N.C. App. 249, 291 S.E.2d 336 (1982). \u201c[A] libel per se is a publication . . . which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person\u2019s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.\u201d Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 317, 312 S.E.2d 405, 409 (citing Flake v. News Co., 212 N.C. 780, 787, 195 S.E. 55, 60 (1938)), reh\u2019g denied, 310 N.C. 749, 315 S.E.2d 704, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984). Slander per se is an oral communication to a third person which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease. U v. Duke University, 91 N.C. App. 171, 371 S.E.2d 701, disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988); Morris v. Bruney, 78 N.C. App. 668, 338 S.E.2d 561 (1986). \u201c[W]hen defamatory words are spoken with the intent that the words be reduced to writing, and the words are in fact written, the publication is both slander and libel.\u201d Clark v. Brown 99 N.C. App. 255, 261, 393 S.E.2d 134, 137 (citing Bell v. Simmons, 247 N.C. 488, 494, 101 S.E.2d 383, 388 (1958)), disc. review denied, 327 N.C. 426, 395 S.E.2d 675 (1990). With this in mind, we must now entertain defendant Fireman\u2019s Fund\u2019s argument that the trial court erred in finding coverage for the following six (6) underlying employment discrimination claims.\n1. The Rosenthal Suit\nAs to the Rosenthal lawsuit, Mr. Rosenthal\u2019s complaint, in addition to age and religious discrimination, alleged that Cannon had damaged his reputation. Plaintiff alleges that Mr. Rosenthal\u2019s allegations of damage to reputation encompass \u201cpersonal injury\u201d coverage as this included \u201cutterance of . . . defamatory or disparaging material.\u201d\nHowever, Mr. Rosenthal\u2019s allegations fail in any manner to make out a prima facie claim for defamation. As such, his claim fails to fall within the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies.\n2. The Price EEOC Complaint.\nAs to the Price EEOC complaint, alleging sexual discrimination, retaliatory-discharge, plaintiff contends that the fact that Cannon had falsely accused Ms. Price of manipulating the job posting system was sufficient to bring the Price complaint within the policies coverage for a \u201cpersonal injury\u201d since it was an \u201cinjury arising out of . . . [an] utterance ... of.. . defamatory or disparaging material.\u201d\nThe Price EEOC complaint fails, however, to show that any of the false statements were made to anyone other than herself. As an essential element of defamation is the publishing of the falsity to another is not found herein, the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies also fails to provide coverage for the Price EEOC complaint.\n3. The Price Suit\nFor the reasons listed in subsection 2 above, we find similarly as to the Price lawsuit. While plaintiff contends that Patricia Price\u2019s allegations of sexual discrimination, retaliatory discharge, intimidation, harassment and defamation (i.e., accusation that Ms. Price manipulated the job posting system), contained allegations which would bring the suit within defendant Fireman\u2019s Fund\u2019s coverage of \u201cpersonal injury,\u201d we do not agree. Nor do we find the allegations of intimidation and harassment to charge \u201cviolation of an individual\u2019s right of privacy.\u201d Accordingly, the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies do not provide coverage for the Price lawsuit.\n4. The Overcash/Class Action\nAs to the Overcash/class action lawsuit, the only hint of personal injury within the definition found in the Broad Form Comprehensive Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies is the allegations of Ms. Price that she had been harassed and falsely accused of \u201c(i) lying and (ii) causing problems.\u201d However, again, we find no evidence of the necessary publishing of this information to a third person by the person who made these false accusations; and therefore, there is no prima facie case for defamation present herein. As such, there is an absence of \u201cpersonal injury\u201d as defined by the Broad Form Comprehensive General Liability Endorsement part of defendant Fireman\u2019s Fund\u2019s policies in the Overcash/class action lawsuit.\n5. The Wilson Suit and the EEOC Sex Class Investigation\nPlaintiff concedes that the other two underlying claims fail to allege any claims other than discrimination (which we have already determined is not covered in the policies) that are covered under defendant Fireman\u2019s Fund\u2019s policies. Accordingly, there is no coverage for these underlying actions under the Broad Form Comprehensive General Liability Endorsement portion of defendant Fireman\u2019s Fund\u2019s policies.\nSince the defendant Fireman\u2019s Fund\u2019s \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d coverage\u2019s definition explicitly fails to include discrimination as a \u201cpersonal injury,\u201d and none of the underlying actions state a claim within the definition for \u201cpersonal injury\u201d found in that particular section, we find no claim for personal injury in any of the underlying actions to exist for coverage within that section of defendant Fireman\u2019s Fund\u2019s policies.\nC. Coverage for \u201cBodily Injury\u201d Under \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d\nNext, we must inquire whether the underlying actions were covered under defendant Fireman\u2019s Fund\u2019s \u201cBroad Form Comprehensive General Liability Endorsement G222,\u201d included in the \u201cComprehensive General Liability Insurance\u201d section of the policies as a \u201cbodily injury.\u201d \u201cBodily injury\u201d as defined in the \u201cDefinitions\u201d section of the policies means \u201cbodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.\u201d\nThe Rosenthal complaint contained allegations that plaintiff had negligently or intentionally inflicted emotional distress upon Mr. Rosenthal; and plaintiff argues that these allegations of negligent and intentional infliction of emotional distress fall within the \u201cbodily injury\u201d coverage of the policies as North Carolina courts and New York courts (where Mr. Rosenthal instituted his action) have recognized that damages from those two torts (especially decreased life expectancy) are \u201cbodily injuries.\u201d Conversely, in the cases of the Price EEOC complaint, the Price lawsuit, the Overcash/class action, the Wilson suit and the EEOC sex class investigation, the record is devoid of any allegations of \u201cbodily injury\u201d within the definition of defendant Fireman\u2019s Fund\u2019s policies.\nIt is not necessary, however, that we make a final determination of this question of \u201cbodily injury\u201d coverage for the Rosenthal suit, if coverage is excluded for the underlying employment discrimination actions. The \u201cExclusions\u201d section of the Comprehensive General Liability Insurance section of defendant Fireman\u2019s Fund\u2019s policies provides that,\nThis insurance does not apply:\n(i) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen\u2019s compensation, unemployment compensation or disability benefits law, or under any similar law;\n(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract....\nPlaintiff argues that exclusion Q), as well as (i) applies only to workers\u2019 compensation cases. Plaintiff cites Save Mart Supermarkets v. Underwriters, 843 F. Supp. 597 (N.D. Cal. 1994), in which the court decided that an exclusion clause much like clause (j) above, was ambiguous and open to more than one interpretation. Accordingly, the court found that there were genuine issues of material fact surrounding its interpretation and thus, summary judgment was inappropriate as to coverage based on the \u201cemployee exception.\u201d Id. at 604.\nDefendant, however, cites Omark Industries v. Safeco Ins. Co. of America, 590 F. Supp. 114 (D. Or. 1984), in support of its argument to the contrary. In Omark, the court construed a provision similar to exclusion (j) in defendant Fireman\u2019s Fund\u2019s policies. In that case, the court distinguished the line of cases that had found various policies\u2019 exclusions were applicable to workers\u2019 compensation only \u2014 finding that those policies\u2019 exclusions had specifically mentioned workers\u2019 compensation. In Omark, since there was no such mention in the policy therein, the court declined to limit the exclusion to workers\u2019 compensation and found that the sex discrimination case was excluded from coverage. Id. Accord, Sunbelt Beer, 839 F. Supp. 376.\nAs in the line of cases cited in Omark, the policy exclusion (i) herein specifically mentions and excludes liability for any bodily injury for which the insured or any carrier would be liable under workers\u2019 compensation law. See Eagle Star Insurance Company, Ltd. v. Deal, 474 F.2d 1216 (8th Cir. 1973); Spain v. Travelers Insurance Company, 332 So.2d 827 (La. 1976); I-L Logging Co. v. Manufacturers & Wholesalers Ind. Exch., 273 P.2d 212, reh\u2019g denied, 275 P.2d 226 (Or. 1954); but see Federal Rice Drug Co. v. Queen Insurance Co. of America, 463 F.2d 626 (3rd Cir. 1972) (refusing to limit the scope of an exclusion similar to exclusion (j) herein, to apply to workers\u2019 compensation cases only). However, exclusion (j) fails to reference workers\u2019 compensation, stating only that coverage would not be provided for bodily injury \u201carising out of and in the course of [ ] employment by the insured.\u201d We find persuasive that exclusion (i) specifically references liability for injuries covered under workers\u2019 compensation, while exclusion (j) does not. Contrary to the court in Save Mart, we find no ambiguity in the policy exclusion Q). A reading of exclusions (i) and (j) in tandem reveals an exclusion of liability for bodily injuries covered under workers\u2019 compensation law pursuant to exclusion (i) and a similar exclusion for all other bodily injuries arising out of and in the course of employment by insured pursuant to exclusion (j), with the exception of liability assumed by the insured under an incidental contract for those bodily injuries. Accordingly, we find that bodily injury exclusion (j) prohibits liability for bodily injuries (assuming that such injuries were alleged in the underlying suits) arising out of and in the course of employment with plaintiff.\nHence, the trial court erroneously found that defendant Fireman\u2019s Fund\u2019s policies provided coverage for the Price EEOC complaint, the Price lawsuit, the Overcash/class action, the Wilson suit and the EEOC sex class investigation. However, as the Rosenthal suit does not arise out of and in the course of his employment with plaintiff \u2014 -Mr. Rosenthal\u2019s employer-company was bought by plaintiff and as a consequence, Mr. Rosenthal was informed thereafter that plaintiff would no longer retain his services \u2014 this exclusion does not prohibit coverage for his underlying employment discrimination action. We must, therefore, now inquire whether Mr. Rosenthal\u2019s suit alleges \u201cbodily injuries\u201d within the meaning of defendant Fireman\u2019s Fund\u2019s \u201cComprehensive General Liability Insurance\u201d coverage.\nThe Rosenthal complaint alleged that as a result of plaintiff\u2019s actions, he \u201cbecame tense, nervous, irritable, suffered immense mental and emotional anguish and distress, and anxiety; . . . has become unable to enjoy his life, family and friends, and has been forced to endure tremendous embarrassment which has placed him under great emotional stress and strain which will ultimately decrease . . . [Mr. Rosenthal\u2019s] life expectancy . . . .\u201d\nThe courts of this jurisdiction have recognized the torts of negligent infliction of emotional distress and intentional infliction of emotional distress as actions for bodily injury. See Johnson v. Ruark Obstetrics, 327 N.C. 283, 292, 395 S.E.2d 85, 90 (reiterating that \u201c \u2018the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter. Indeed, the sufferings of each frequently, if not usually, act reciprocally on the other.\u2019 \u201d), reh\u2019g denied, 327 N.C. 544, 399 S.E.2d 133 (1990).\nIn order to prevail in an action for negligent infliction of emotional distress, a plaintiff must show that \u201c(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as \u201cmental anguish\u201d), and (3) the conduct did in fact cause the plaintiff severe emotional distress.\u201d Id. at 304, 395 S.E.2d at 97. Further, a prima facie showing for intentional infliction of emotional distress requires that the plaintiff demonstrate the following: (1) the defendant \u201cengaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress.\u201d Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 6-7, 437 S.E.2d 519, 522 (1993), appeal dismissed and disc. review denied, 336 N.C. 71, 445 S.E.2d 29 (1994).\nIn both contexts \u201cthe term \u2018severe emotional distress\u2019 means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.\u201d Johnson, 327 N.C. at 304, 395 S.E.2d at 97. \u201c[M]ere temporary fright, disappointment or regret will not suffice.\u201d Id. Further, in the context of intentional infliction of emotional distress, the element of \u201cextreme and outrageous conduct,\u201d has been defined as \u201c \u2018conduct [which] exceeds all bounds usually tolerated by decent society.\u2019 \u201d Stanback v. Stanback, 297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979) (quoting William L. Prosser, Handbook of The Law of Torts \u00a7 12, at 56 (4th ed. 1971)). Liability for this tort \u201c \u2018clearly does not extend to mere insults, or indignities.\u2019 \u201d Wagoner v. Elkin City Schools\u2019 Bd. of Education, 113 N.C. App. 579, 586, 440 S.E.2d 119, 123 (quoting Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 383, 430 S.E.2d 306, 310, rev\u2019d in part, 335 N.C. 233, 436 S.E.2d 835 (1993)), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). Moreover, a plaintiff must set forth specific incidents of conduct which \u201c \u2018exceed[] all bounds usually tolerated by decent society.\u2019 \u201d Stanback, 297 N.C. at 196, 254 S.E.2d at 622 (quoting Prosser, The Law of Torts \u00a7 12, at 56).\nAfter careful examination of the record, there is nothing in the Rosenthal complaint alleging that plaintiff\u2019s conduct was \u201cextreme and outrageous.\u201d Nor are there allegations which indicate that by its conduct plaintiff corporation intended that Mr. Rosenthal suffer severe emotional distress. Accordingly, Mr. Rosenthal\u2019s complaint fails to make out a claim for intentional infliction of emotional distress. We do find, however, from a review of the Rosenthal complaint, that there is genuine issue of fact as to whether plaintiff negligently caused Mr. Rosenthal to suffer severe emotional distress. As all evidence is to be considered \u201cindulgently\u201d at the summary judgment stage of proceedings, Fowler v. Valencourt, 108 N.C. App. 106, 114, 423 S.E.2d 785, 790 (1992) (citing Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972)), rev\u2019d in part on other grounds, 334 N.C. 345, 435 S.E.2d 530 (1993), with \u201cthe slightest doubt as to the facts entitling] plaintiff to a trial,\u201d id. (citing Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, appeal dismissed and disc. review denied, 312 N.C. 85, 321 S.E.2d 899 (1984)), plaintiff is entitled to a trial on the issue of whether Mr. Rosenthal\u2019s claim for negligent infliction of emotional distress adequately presents a claim for \u201cbodily injury\u201d within the definition of the \u201cComprehensive General Liability Insurance\u201d coverage part of defendant Fireman\u2019s Fund\u2019s policies.\nSince the Rosenthal suit includes a prima facie showing for negligent infliction of emotional distress, and such is a \u201cbodily injury\u201d within the meaning of defendant Fireman\u2019s Fund\u2019s policies, we find that the trial court was correct in its decision that defendant Fireman\u2019s Fund provided insurance coverage for the Rosenthal suit. However, the court was in error in its conclusion that defendant Fireman\u2019s Fund\u2019s policies provided coverage for the other underlying employment discrimination claims and suits brought against plaintiff.\nIII.\nIn light of our finding in Section II, we need not entertain defendant Fireman\u2019s Fund\u2019s remaining arguments: (1) that the trial court committed reversible error in concluding that notice to Wayne Johnson, defendant Fireman\u2019s Fund\u2019s agent, constituted notice to defendant Fireman\u2019s Fund; and (2) that the trial court committed reversible error in concluding that plaintiff\u2019s claims for recovery of the legal fees and expenses incurred in defending the Over cash/class action prior to 5 December 1995, the Price and Wilson lawsuits, the Price EEOC complaint and the EEOC sex class investigation, and the settlement payment for the Wilson lawsuit, survived the statute of limitations.\nIV.\nPlaintiff raises two issues on cross-appeal: (1) In the event that summary judgment against defendant Fireman\u2019s Fund on the coverage issue is reversed, the court should reverse summary judgment in favor of defendant Guaranty; and (2) In the event that summary judgment against defendant Fireman\u2019s Fund on the coverage issue is reversed, the trial court\u2019s order dismissing defendant North River should be reversed and the trial court\u2019s grant of summary judgment against defendant North River on the issue of coverage should be reactivated. Notably, both umbrella carriers\u2019 policies provide coverage in the event that defendant Fireman\u2019s Fund does not cover the underlying claims.\nAs the trial court\u2019s orders granting summary judgment for defendant Guaranty and granting defendant North River\u2019s motion to dismiss were premised upon the proposition that defendant Fireman\u2019s Fund was responsible for coverage of all of the underlying employment discrimination claims, and as we find herein that defendant Fireman\u2019s Fund did not provide coverage for the Price EEOC complaint, the Price lawsuit, the Overcash/class action, the Wilson suit and the EEOC sex class investigation claims, the trial court\u2019s orders granting summary judgment for defendant Guaranty and a dismissal for North River as to these underlying claims must be reversed also. We, however, affirm the trial court\u2019s orders for defendants Guaranty and North River as to the Rosenthal suit.\nIn conclusion, we hold (1) that defendant Fireman\u2019s Fund\u2019s general liability policies afforded plaintiff coverage for the Rosenthal lawsuit only \u2014 not for the remaining underlying discrimination claims as found by the trial court, and therefore, the trial court erred in denying defendant Fireman\u2019s Fund\u2019s motion for summary judgment as to those remaining underlying discrimination claims; (2) that the trial court also erred in granting defendant North River\u2019s motion to dismiss, as its umbrella policy affords plaintiff excess coverage for the underlying discrimination claims, which are not covered by defendant Fireman\u2019s Fund\u2019s general liability, policies; and (3) that defendant Guaranty\u2019s motion for summary judgment was improperly granted as to the remaining underlying discrimination claims which are uncovered by defendant Fireman\u2019s Fund\u2019s general liability policies. Accordingly, the 26 April 1993 order of the trial court denying defendant Fireman\u2019s Fund\u2019s motion for summary judgment and granting defendant Guaranty\u2019s motion for summary judgment is reversed as to all of the underlying discrimination claims, with the exception of the Rosenthal suit; its 30 June 1993 order granting defendant North River\u2019s motion to dismiss is similarly reversed; and finally, the 7 December 1994 judgment awarding plaintiff damages against defendant Fireman\u2019s Fund for the underlying discrimination claims, save the Rosenthal suit, is reversed and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion.\nAffirmed in part, reversed in part, and remanded.\nJudges MARTIN, John C. and McGEE concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Blair Conaway Bograd & Martin, P.A., by Bentford E. Martin, for plaintiff-appellee.",
      "Baucom, Clay tor, Benton, Morgan, Wood & White, P.A., by James F. Wood, III; and Patterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey and G. Lawrence Reeves, for defendant-appellant Fireman\u2019s Fund Insurance Company.",
      "Wilson & Mcllvaine, by Dwight B. Palmer, Jr.; and Robinson, Bradshaw & Hinson, P.A., by Mark W. Merritt and Edward F. Hennessey, IV, for defendant-appellee North River Insurance Company.",
      "Moore & Van Allen, PLLC, by Christopher J. Blake and Joseph W. Eason, for defendant-appellee North Carolina Insurance Guaranty Association."
    ],
    "corrections": "",
    "head_matter": "FIELDCREST CANNON, INC., Plaintiff v. FIREMAN\u2019S FUND INSURANCE COMPANY; THE NORTH RIVER INSURANCE COMPANY; and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendants\nNo. COA95-721\n(Filed 5 November 1996)\n1. Discovery and Depositions \u00a7 53 (NCI4th); Trial \u00a7 222 (NCI4th)\u2014 deemed admissions \u2014 effect of voluntary dismissal\nThe trial court did not err in an action arising from an insurance company\u2019s failure to defend employment discrimination claims by not granting summary judgment for defendant based on admissions which had been deemed admitted due to nonresponse to a request for admissions in a prior action which was voluntarily dismissed where the voluntary dismissal was in part to avoid the effect of the deemed admissions. N.C.G.S. \u00a7 1A-1, Rule 36 clearly provides that admissions made in one action may not be raised against the party who made them in any other proceeding.\nAm Jur 2d, Dismissal, Discontinuance and Nonsuit \u00a7 72; Evidence \u00a7 773.\nEffect of nonsuit, dismissal, or discontinuance of action on previous orders. 11 ALR2d 1407.\n2. Trial \u00a7 222 (NCI4th)\u2014 voluntary dismissal \u2014 claim preserved \u2014 proceeding not preserved\nAdmissions obtained under N.C.G.S. \u00a7 1A-1, Rule 36 may not be utilized beyond the confines of the pending action; while an original claim may be preserved when a dismissal under N.C.G.S. \u00a7 1A-1, Rule 41 is taken, the proceeding is not.\nAm Jur 2d, Dismissal, Discontinuance and Nonsuit \u00a7 72.\n3. Insurance \u00a7 120 (NCI4th)\u2014 employment claims \u2014 duty to defend \u2014 construction of policy \u2014 personal injury \u2014 bodily injury\nThe trial court erred in an action to determine insurance coverage by denying defendant Fireman\u2019s Fund\u2019s motion for summary judgment on all but one claim in an action involving employment related claims. Defendant Fireman Fund\u2019s policies indemnified and required defendant to defend damages because of personal or bodily injury. Personal injury was defined in two sections of the policies; since the definition under the applicable section explicitly failed to include discrimination as a \u201cpersonal injury,\u201d and none of the underlying claims state a claim within the definition for \u201cpersonal injury\u201d found in that particular section, no claim for personal injury in any of the underlying actions exists for coverage within that section of defendant Fireman Funds\u2019s policies. As for bodily injury, an exclusion prohibits liability for bodily injuries arising out of and in the course of employment and the trial court erroneously found that defendant Fireman\u2019s Fund\u2019s policies provided coverage for all but one claimant, Rosenthal. The Rosenthal suit does not arise out of and in the course of his employment with plaintiff and, while his complaint fails to make out a claim for intentional infliction of emotional distress, there is a genuine issue as to whether plaintiff negligently caused Rosenthal to suffer severe emotional distress.\nAm Jur 2d, Insurance \u00a7 1412.\nRefusal of liability insurer to defend action against insured involving both claims within coverage of policy and claims not covered. 41 ALR2d 434.\nAllegations in third person\u2019s action against insured as determining liability insurer\u2019s duty to defend. 50 ALR2d 458.\nAppeal by defendant Fireman\u2019s Fund Insurance Company from order entered 26 April 1993 by Judge Forrest A. Ferrell, and judgment entered 7 December 1994 by Judge John M. Gardner in Mecklenburg County Superior Court. Cross-appeal by plaintiff from orders entered 26 April and 30 June 1993 by Judge Ferrell in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 March 1996.\nBlair Conaway Bograd & Martin, P.A., by Bentford E. Martin, for plaintiff-appellee.\nBaucom, Clay tor, Benton, Morgan, Wood & White, P.A., by James F. Wood, III; and Patterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey and G. Lawrence Reeves, for defendant-appellant Fireman\u2019s Fund Insurance Company.\nWilson & Mcllvaine, by Dwight B. Palmer, Jr.; and Robinson, Bradshaw & Hinson, P.A., by Mark W. Merritt and Edward F. Hennessey, IV, for defendant-appellee North River Insurance Company.\nMoore & Van Allen, PLLC, by Christopher J. Blake and Joseph W. Eason, for defendant-appellee North Carolina Insurance Guaranty Association."
  },
  "file_name": "0232-01",
  "first_page_order": 270,
  "last_page_order": 293
}
