{ "id": 11708377, "name": "NORTH CAROLINA FARM BUREAU, MUTUAL INSURANCE COMPANY, Plaintiff v. CARRIE B. BOST, and ALLSTATE INSURANCE COMPANY, Defendants", "name_abbreviation": "North Carolina Farm Bureau v. Bost", "decision_date": "1997-04-15", "docket_number": "No. COA96-586", "first_page": "42", "last_page": "52", "citations": [ { "type": "official", "cite": "126 N.C. App. 42" } ], "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": "369 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525226 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0507-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(3)" } ], "opinion_index": 0 }, { "cite": "317 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684257, 4686607, 4682963, 4684918, 4681629 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0306-01", "/nc/311/0306-02", "/nc/311/0306-05", "/nc/311/0306-03", "/nc/311/0306-04" ] }, { "cite": "313 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "860" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526991 ], "year": 1984, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0632-01" ] }, { "cite": "301 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566049, 8566121, 8566093, 8565977, 8566011 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0698-03", "/nc/307/0698-05", "/nc/307/0698-04", "/nc/307/0698-01", "/nc/307/0698-02" ] }, { "cite": "298 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527070 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0621-01" ] }, { "cite": "456 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "determining that the 1991 amendments allowed stacking of UIM coverage between policies but not within policies" } ], "opinion_index": 0 }, { "cite": "340 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790154, 790155, 790225, 790136, 790074 ], "year": 1995, "pin_cites": [ { "parenthetical": "determining that the 1991 amendments allowed stacking of UIM coverage between policies but not within policies" } ], "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": [ { "parenthetical": "determining that the 1991 amendments allowed stacking of UIM coverage between policies but not within policies" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526044 ], "year": 1995, "pin_cites": [ { "parenthetical": "determining that the 1991 amendments allowed stacking of UIM coverage between policies but not within policies" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0593-01" ] }, { "cite": "463 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "\"the main purpose of the 1991 amendments to G.S. 20-279.21(b)(4) appears to be the prohibition of intrapolicy stacking of UIM coverage\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795956, 796120, 796121, 796058, 796094 ], "year": 1995, "pin_cites": [ { "parenthetical": "\"the main purpose of the 1991 amendments to G.S. 20-279.21(b)(4) appears to be the prohibition of intrapolicy stacking of UIM coverage\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0192-03", "/nc/342/0192-01", "/nc/342/0192-04", "/nc/342/0192-05", "/nc/342/0192-02" ] }, { "cite": "458 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "26", "parenthetical": "\"the main purpose of the 1991 amendments to G.S. 20-279.21(b)(4) appears to be the prohibition of intrapolicy stacking of UIM coverage\"" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914212 ], "year": 1995, "pin_cites": [ { "page": "224", "parenthetical": "\"the main purpose of the 1991 amendments to G.S. 20-279.21(b)(4) appears to be the prohibition of intrapolicy stacking of UIM coverage\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0220-01" ] }, { "cite": "418 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"1991 amendment to N.C.G.S. \u00a7 20-279.21(b)(4) appears to prohibit intrapolicy stacking\"" } ], "opinion_index": 0 }, { "cite": "332 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506105 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"1991 amendment to N.C.G.S. \u00a7 20-279.21(b)(4) appears to prohibit intrapolicy stacking\"" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0109-01" ] }, { "cite": "462 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793222, 793228, 793200, 793113, 793182 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0651-02", "/nc/341/0651-01", "/nc/341/0651-04", "/nc/341/0651-03", "/nc/341/0651-05" ] }, { "cite": "456 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920692 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0686-01" ] }, { "cite": "420 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] }, { "cite": "423 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "108 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523170 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0163-01" ] }, { "cite": "378 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487753 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0289-01" ] }, { "cite": "419 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527466 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0252-01" ] }, { "cite": "310 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 823", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764418, 4761965, 4769041, 4760728, 4761084 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0823-02", "/nc/309/0823-04", "/nc/309/0823-03", "/nc/309/0823-05", "/nc/309/0823-01" ] }, { "cite": "302 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523962 ], "year": 1983, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0564-01" ] }, { "cite": "353 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748910, 4741584, 4744945, 4742929, 4747543 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0224-04", "/nc/319/0224-02", "/nc/319/0224-01", "/nc/319/0224-03", "/nc/319/0224-05" ] }, { "cite": "350 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358716 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0428-01" ] }, { "cite": "452 S.E.2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521346, 2520554, 2521194, 2517915, 2520446 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0312-01", "/nc/338/0312-04", "/nc/338/0312-02", "/nc/338/0312-05", "/nc/338/0312-03" ] }, { "cite": "446 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522604 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0124-01" ] } ], "analysis": { "cardinality": 776, "char_count": 23407, "ocr_confidence": 0.767, "pagerank": { "raw": 3.7174590650254015e-07, "percentile": 0.893689168750765 }, "sha256": "ce2a0b7b88a5d27c66d8fda53feaa6ae0b5d3c2ede697927548bd60356a9aeb2", "simhash": "1:5ba0517a05663eca", "word_count": 3705 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU, MUTUAL INSURANCE COMPANY, Plaintiff v. CARRIE B. BOST, and ALLSTATE INSURANCE COMPANY, Defendants" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nPlaintiff North Carolina Farm Bureau Mutual Insurance Company (Farm Bureau) filed this declaratory judgment action to determine its obligations to defendant Carrie B. Bost under an underinsured motorist (UIM) policy issued to her son, Larry Bost. The record establishes that on 24 June 1994, Carrie Bost was injured when the vehicle in which she was a passenger, owned and operated by Larry Bost, was struck by a vehicle operated negligently by William Earl Ezzelle. Allstate Insurance Company (Allstate) insured the Ezzelle vehicle with liability policy limits of $100,000. For the purposes of this action, the parties have stipulated that Carrie Bost sustained damages equal to or exceeding $200,000 as a result of the collision.\nAt the time of the accident, Carrie Bost was a family member and resident in the households of both her son, Larry Bost and her daughter, Cara Bost. Farm Bureau insured Larry Bost\u2019s vehicle and defendant Allstate insured Cara Bost\u2019s vehicle. Both policies provided for UIM coverage in the amount of $100,000 per person with a limit of $300,000 for each accident.\nOn 6 February 1995, Carrie Bost notified both UIM carriers of Allstate\u2019s tender of its policy limits under Ezzelle\u2019s Allstate liability policy in exchange for a limited release and settlement agreement. On 10 March 1995, she executed and delivered a \u201cSettlement Agreement and Limited Release\u201d in exchange for the policy limits of $100,000 under Ezzelle\u2019s Allstate policy. The agreement released Ezzelle from personal liability while reserving Carrie Bost\u2019s right to seek further restitution under the UIM provisions of Larry Bost\u2019s Farm Bureau policy and Cara Bost\u2019s Allstate policy.\nBoth Farm Bureau and Carrie Bost moved for summary judgment. The trial court granted Carrie Bost\u2019s motion for summary judgment and denied Farm Bureau\u2019s motion, concluding that Bost\u2019s execution of \u201cThe Settlement Agreement and Limited Release\u201d as well as her acceptance of the $100,000 draft did not constitute a bar of any claim by Carrie Bost against Farm Bureau and Allstate for UIM coverage. The trial court entered a judgment declaring:\n2. That when the $100,000.00 underinsured motorist coverage of the Plaintiff, North Carolina Farm Bureau Mutual Insurance Company, is combined with the $100,000.00 underinsured motorist coverage of the Defendant, Allstate Insurance Company, there is a total underinsurance coverage of $200,000.00 and therefore the vehicle owned and negligently operated by William Earl Ezzelle was an underinsured vehicle as to the Plaintiff, North Carolina Farm Bureau Mutual Insurance Company\u2019s policy and the Defendant, Allstate Insurance Company\u2019s policy.\n4. That the amount of underinsured motorist coverage provided under the policy of the Plaintiff, North Carolina Farm Bureau Mutual Insurance Company, and the Defendant, Allstate Insurance Company, totals $200,000.00 and that each is entitled to a setoff or a credit for a pro rata share of the $100,000.00 paid by Allstate Insurance Company under the policy of William Earl Ezzelle.\nTherefore, after their respective credits in the amount of $50,000.00, the Plaintiff, North Carolina Farm Bureau Mutual Insurance Company and the Defendant, Allstate Insurance Company, each has an additional $50,000.00 in coverage (for a total amount of $100,000.00) available to satisfy, on a pro rata basis, the personal injury claim of the Defendant, Carrie B. Bost.\nFarm Bureau appeals from the trial court\u2019s order.\nThe issues on appeal are (1) whether Carrie Bost\u2019s execution of the \u201cSettlement Agreement and Limited Release\u201d and acceptance of the $100,000 draft releases Farm Bureau from providing UIM coverage to her; (2) whether Ezzelle\u2019s vehicle is an \u201cunderinsured\u201d vehicle pursuant to G.S. \u00a7 20-279.21(b)(4), and if so, (3) whether Farm Bureau\u2019s UIM coverage is \u201cprimary\u201d as to defendant Allstate\u2019s coverage.\nBy its first and second assignments of error, Farm Bureau contends that Carrie Bost is precluded from recovering under the UIM coverage provided by its policy because its liability under the UIM coverage derives from the tortfeasor\u2019s liability, which was extinguished by Carrie Bost\u2019s settlement with the tortfeasor\u2019s liability insurance carrier.\nFarm Bureau argues that Carrie Bost is precluded from recovering under the UIM coverage provided by its policy because she entered into a \u201cSettlement Agreement and Limited Release,\u201d with the tortfeasor\u2019s liability carrier.\nThe \u201cSettlement Agreement and Limited Release\u201d provides in pertinent part:\n2. . . . The undersigned hereby fully releases and discharges William Earl Ezzelle from any personal liability whatsoever as a result of said incident and covenants to hold harmless William Earl Ezzelle and to enforce any judgment or order, in connection with any civil action hereafter filed, or judgment or order in any other action duly entered, only against Allstate Insurance Company as underinsured motorist carrier for Cara Diane Bost and North Carolina Farm Bureau Insurance Company as underinsured motorist carrier for Larry L. Bost, or any other applicable underinsured motorist coverage which may apply to the injuries and damages incurred by Carrie B. Bost, and not to enforce any such judgment or order against William Earl Ezzelle personally.\n3. Nothing herein shall be construed to release, acquit, or discharge Allstate Insurance Company, North Carolina Farm Bureau Insurance Company, or any other party or insurance carrier not referred to in this agreement from any obligation on account of, or in any way growing out of the aforesaid underinsured motorist coverage or any other coverage which may be applicable to the claims arising from the June 24, 1994, automobile collision. . . . The undersigned specifically preserves her underinsured motorist claims against Allstate Insurance Company and North Carolina Farm Bureau Insurance Company and retains her right to file and prosecute a lawsuit against William Earl Ezzelle to the extent necessary to recover said underinsured motorist coverages. . ..\nFarm Bureau relies on Spivey v. Lowery, 116 N.C. App. 124, 446 S.E.2d 835, disc. review denied, 338 N.C. 312, 452 S.E.2d 312 (1994), for the proposition that an injured party who executes a general release cannot thereafter assert any claims arising out of the accident and that a UIM carrier\u2019s consent to the settlement does not alter the legal effect of the general release. In so ruling, our Court relied on the general rule that a UIM carrier\u2019s liability is derivative of the tortfea-sor\u2019s liability. Buchanan v. Buchanan, 83 N.C. App. 428, 350 S.E.2d 175 (1986), disc. review denied, 319 N.C. 224, 353 S.E.2d 406 (1987). In Spivey, the plaintiff executed a general release in which she released the tortfeasor, the liability insurer, and \u201call other persons, firms, [and] corporations ...\u201d against whom she had any claim as a result of the accident. Id. at 125, 446 S.E.2d at 836.\nThe \u201cSettlement Agreement and Limited Release\u201d in the present case, however, as distinguished from that in Spivey, specifically reserves Carrie Bost\u2019s rights against Farm Bureau and Allstate, releasing only Ezzelle from any personal liability. Moreover, Carrie Bost retained her \u201cright to file and prosecute a lawsuit against William Earl Ezzelle to the extent necessary to recover said underinsured motorist coverages,\u201d and agreed \u201cnot to enforce any such judgment against\u201d him. Therefore, Carrie Bost\u2019s \u201cSettlement Agreement and Limited Release\u201d is a covenant not to enforce judgment and not a general release as contemplated by Spivey. Accordingly, Carrie Bost\u2019s entry into a settlement agreement with Ezzelle and his carrier does not bar her as a matter of law from recovering under Farm Bureau\u2019s UIM coverage.\nFarm Bureau also argues that Bost\u2019s acceptance and endorsement of the check from Allstate on behalf of Ezzelle constituted an accord and satisfaction with the tortfeasor and a final settlement of all claims, including Bost\u2019s UIM claim, because UIM coverage liability is derivative of the tortfeasor\u2019s liability.\nAn \u201caccord\u201d is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or tort, something other than or different from what he is, or considered himself entitled to; and a \u201csatisfaction\u201d is the execution or performance, of such agreement.\nSharpe v. Nationwide Mut. Fire Ins. Co. 62 N.C. App. 564, 565, 302 S.E.2d 893, 894, cert. denied, 309 N.C. 823, 310 S.E.2d 353 (1983). Farm Bureau is correct in its contention that a check tendered as payment in full of a disputed claim establishes an accord and satisfaction. See Canaday v. Mann, 107 N.C. App. 252, 419 S.E.2d 597 (1992). However, the accord and satisfaction reached between Carrie Bost and Ezzelle\u2019s liability carrier did not extinguish her claim for UIM coverage.\nOur Supreme Court considered and rejected an argument similar to that made by Farm Bureau in this case. Silver v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21 (1989). The Court concluded that although the phrase \u201clegally entitled to recover\u201d in G.S. \u00a7 20-279.21 (1983) and in provisions of an automobile insurance policy regarding UIM coverage means that the insurance carrier\u2019s UIM liability is derivative, plaintiff insured\u2019s entry of a consent judgment releasing the tortfeasors and their insurance carrier did not bar her as a matter of law from recovering under the UIM coverage of her policy. The Court reasoned that internally conflicting provisions in the statute and in the policy appeared to require the insured both to preserve the cause of action against the tortfeasor and to settle the cause before seeking UIM benefits. The Court resolved the conflict in favor of the insured. We find the analysis in Horace Mann, which interpreted the 1983 statute to be applicable as well to the current version, G.S. \u00a7 20-279.21(b)(4) (1993), which provides:\n. . . Underinsured motorist coverage is deemed to apply when, by reason of payment of judgment or settlement, all 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. . . .\nFarm Bureau\u2019s policy provides in pertinent part:\nPART C \u2014 UNINSURED MOTORISTS COVERAGE\nWe will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:\n(1) Bodily injury sustained by an insured and caused by an accident; and\n(2) Property damage caused by an accident.\nPART D \u2014 COMBINED UNINSURED/UNDERINSURED MOTORISTS COVERAGE\nWe will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have ben [sic] exhausted by payments of judgments or settlements, ....\nIn the present case, Carrie Bost properly notified both UIM carriers of her \u201cSettlement Agreement and Limited Release\u201d and her plans to seek UIM coverage pursuant to G.S. \u00a7 20-279.21(b)(4). Farm Bureau failed to take steps to preserve its right to approve the settlement as provided by G.S. \u00a7 20-279.21(b)(4). Carrie Bost then accepted Ezzelle\u2019s liability carrier\u2019s tender and executed the \u201cSettlement Agreement and Limited Release.\u201d Not only did Carrie Bost exhaust her liability policies pursuant to G.S. \u00a7 20-279.21(b)(4) and the UIM provisions of Farm Bureau\u2019s policy by accepting the tender, she also reserved her right to seek UIM coverage by making a covenant not to enforce any judgment by executing the \u201cSettlement Agreement and Limited Release.\u201d Because Carrie Bost exhausted the limits of liability by settling with Allstate, Farm Bureau, therefore, has no right to object to the settlement of the primary claim and cannot complain when the insured takes steps necessary to seek UIM coverage. See Guranious v. Integon General Ins. Corp. 108 N.C. App. 163, 423 S.E.2d 317 (1992).\nFarm Bureau next contends that the Ezzelle vehicle was not an \u201cunderinsured highway vehicle\u201d under G.S. \u00a7 20-279.21(b)(4) because the UIM limits of Larry Bost\u2019s vehicle was equal to the liability limits of Ezzelle\u2019s vehicle. Farm Bureau argues that the 1991 act amending G.S. \u00a7 20-279.21(b)(4) does not allow interpolicy stacking of UIM limits applicable to a claimant for the purpose of determining whether the tortfeasor\u2019s vehicle is an \u201cunderinsured highway vehicle.\u201d We disagree.\nThe pre-1991 G.S. \u00a7 20-279.21 defined \u201cunderinsured highway vehicle\u201d as follows:\na highway vehicle with respect to the ownership, maintenance, or use of which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the owner\u2019s 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; it being the intent of this paragraph to provide to the owner, in instances where more than one policy may apply, the benefit of all limits of liability of underinsured motorist coverage under all such policies ....\nOur Courts interpreted this language to allow both intrapolicy stacking of UIM coverage, Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 420 S.E.2d 124 (1992), and interpolicy stacking of UIM coverage, Onley v. Nationwide Mut. Ins. Co., et. al., 118 N.C. App. 686, 456 S.E.2d 882, disc. review denied, 341 N.C. 651, 462 S.E.2d 514 (1995), in determining whether a tortfeasor\u2019s vehicle is an \u201cunderin-sured highway vehicle.\u201d\nG.S. \u00a7 20-279.21(b)(4), as amended 5 November 1991, defines an \u201cunderinsured highway vehicle\u201d as follows:\n[A] highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury and liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underin-sured motorist coverage for the vehicle involved in the accident and insured under the owner\u2019s 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 under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident. Furthermore, if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant\u2019s underinsured motorist coverages as determined by combining the highest limit available under each policy; . . . The underinsured motorist limits applicable to any one motor vehicle under a policy shall not be combined with or added to the limits applicable to any other motor vehicle under that policy.\nOur Courts have noted that the 1991 act amending G.S. \u00a7 20-279.21(b)(4), prohibits intrapolicy stacking. See Bass v. N.C. Farm Bureau Mut. Ins. Co., 332 N.C. 109, 113 n.2, 418 S.E.2d 221, 223 n.2 (1992) (\u201c1991 amendment to N.C.G.S. \u00a7 20-279.21(b)(4) appears to prohibit intrapolicy stacking\u201d); Honeycutt v. Walker, 119 N.C. App. 220, 224, 458 S.E.2d 23, 26, disc. review denied, 342 N.C. 192, 463 S.E.2d 236 (1995) (\u201cthe main purpose of the 1991 amendments to G.S. 20-279.21(b)(4) appears to be the prohibition of intrapolicy stacking of UIM coverage\u201d); Maryland Casualty Co. v. Smith, 117 N.C. App. 593, 452 S.E.2d 318, disc. review denied, 340 N.C. 114, 456 S.E.2d 316 (1995) (determining that the 1991 amendments allowed stacking of UIM coverage between policies but not within policies). Farm Bureau concedes that the 1991 amendment allows interpolicy stacking, however Farm Bureau argues that it does not allow interpolicy stacking for the purpose of determining whether Ezzelle\u2019s vehicle is underin-sured. We disagree.\nProvisions of the Financial Responsibility Act are written into every automobile liability policy as a matter of law. Ohio Casualty Ins. Co. v. Anderson, 59 N.C. App. 621, 298 S.E.2d 56 (1982), cert. denied, 307 N.C. 698, 301 S.E.2d 101 (1983). \u201cThe primary purpose of the compulsory motor vehicle liability insurance required by North Carolina\u2019s Financial Responsibility Act is to compensate innocent victims who have been injured by financially irresponsible motorists.\u201d South Carolina Ins. Co. v. Smith, 67 N.C. App. 632, 636, 313 S.E.2d 856, 860, disc. review denied, 311 N.C. 306, 317 S.E.2d 682 (1984). The Act is to be liberally construed so that its intended purpose may be accomplished. Id.\nThe 1991 amendment expressly states that a claimant is not entitled to stack UIM coverage within policies, overturning Harris, but states that a claimant is entitled to stack between policies, upholding Onley. While it may be argued that the language \u201cvehicle involved in the accident\u201d confines Carrie Bost\u2019s UIM coverage only to Larry Bost\u2019s vehicle, when it is read in context with the surrounding stacking subsection, the \u201climits\u201d referred to in the 1991 amendment are all of the UIM limits available to Carrie Bost. We hold that the 1991 amendment to the Act did not affect the validity of interpolicy stacking in Onley, and therefore, defendant Carrie Bost is allowed to stack the UIM coverages of Farm Bureau and Allstate for purposes of determining whether Ezzelle\u2019s vehicle was an underinsured motor vehicle as defined under G.S. \u00a7 20-279.21(b)(4). Accordingly, the trial court properly allowed Carrie Bost to stack the UIM coverages of Farm Bureau and defendant Allstate to determine that the Ezzelle vehicle was an \u201cunderinsured motor vehicle.\u201d\nFinally, Farm Bureau contends that the trial court erred in its ruling that both Farm Bureau and defendant Allstate provide excess UIM coverage. Farm Bureau argues that its UIM coverage is \u201cprimary\u201d because it provides the insurance for the car owned by Larry Bost.\nThe Farm Bureau and defendant Allstate policies contain the following identical \u201cOther Insurance\u201d provision:\nIf 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, anv insurance we provide with respect to a vehicle vou do not own shall be excess over anv other collectible insurance. (emphasis added).\nGenerally, the first class of \u201cpersons insured\u201d are the \u201cnamed insured and, while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise.\u201d N.C. Gen. Stat. \u00a7 20-279.21(b)(3). All persons in the first class are treated the same for insurance purposes. See N. C. Farm Bureau Mut. Ins. Co. v. Hilliard, 90 N.C. App. 507, 369 S.E.2d 386 (1988). When \u201cexcess\u201d clauses in several policies are identical, the clauses are deemed mutually repugnant and neither excess clause will be given effect, leaving the insured\u2019s claim to be pro rated between the separate policies according to their respective limits. Id.\nCarrie Bost was not a named insured under Larry Bost\u2019s insurance policy with Farm Bureau. Both Farm Bureau and defendant Allstate insured Carrie Bost as a first class insured because she was a relative and resident of the households of both Larry and Cara Bost. Both policies have \u201cOther Insurance\u201d provisions which are identical, and therefore, the provisions nullify each other, leaving Farm Bureau and defendant Allstate to share the Ezzelle settlement on a pro rata basis.\nAffirmed.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Caudle & Spears, P.A., by Nancy E. Walker and Lloyd C. Caudle, for plaintiff-appellant.", "Staten L. Wilcox for defendant-appellee Carrie B. Bost.", "Arthurs & Foltz, by Douglas P. Arthurs, for defendant-appellee Allstate Insurance Company." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU, MUTUAL INSURANCE COMPANY, Plaintiff v. CARRIE B. BOST, and ALLSTATE INSURANCE COMPANY, Defendants\nNo. COA96-586\n(Filed 15 April 1997)\n1. Insurance \u00a7 531 (NCI4th); Torts \u00a7 12 (NCI4th)\u2014 settlement with tortfeasor \u2014 covenant not to enforce judgment\u2014 UIM recovery not barred\nA \u201cSettlement Agreement and Limited Release\u201d entered by the insured with the tortfeasor and his liability carrier was a covenant not to enforce judgment rather than a general release and did not bar the insured from recovering UIM benefits where the agreement released only the tortfeasor from personal liability, reserved the insured\u2019s rights against the UIM carriers, retained the insured\u2019s right to prosecute a lawsuit against the tortfeasor to the extent necessary to recover UIM benefits, and prohibited the insured from enforcing any judgment against the tortfeasor.\nAm Jur 2d, Automobile Insurance \u00a7 322.\n2. Insurance \u00a7 531 (NCI4th)\u2014 acceptance of check from tort-feasor \u2014 right to UIM benefits not extinguished\nThe insured\u2019s acceptance and endorsement of a check from the tortfeasor\u2019s liability insurer did not extinguish her right to seek UIM benefits on the ground that UIM liability is derivative of the tortfeasor\u2019s liability where the insured properly notified the UIM carriers of her limited settlement agreement with the tort-feasor, exhausted available liability coverage with the settlement, notified the UIM carriers of her plan to seek UIM coverage pursuant to N.C.G.S. \u00a7 20-279.21(b)(4), and reserved her right to seek UIM coverage by making a covenant not to enforce any judgment against the tortfeasor.\nAm Jur 2d, Automobile Insurance \u00a7 322.\n3. Insurance \u00a7 535.1 (NCI4th)\u2014 underinsured highway vehicle \u2014 interpolicy stacking of UIM limits\nInterpolicy stacking of the UIM limits of two policies was properly permitted for the purpose of determining whether the tortfeasor\u2019s vehicle was an \u201cunderinsured highway vehicle\u201d as defined in N.C.G.S. \u00a7 20-279.21(b)(4).\nAm Jur 2d, Automobile Insurance \u00a7 329.\n4. Insurance \u00a7 529 (NCI4th)\u2014 first class insured in two policies \u2014 other insurance provisions nullified \u2014 UIM coverages both primary \u2014 pro rata sharing of settlement\nA mother injured while a passenger in her son\u2019s vehicle was a first class insured in automobile policies issued to the son and to a daughter where she was a resident in the households of both the son and the daughter at the time of the accident; therefore, identical \u201cother insurance\u201d provisions in both policies making insurance with respect to a vehicle \u201cyou do not own\u201d excess over any other collectible insurance nullified each other so that the UIM coverages in both policies were \u201cprimary,\u201d and both insurers must share in the mother\u2019s settlement with the tortfeasor on a pro rata basis for UIM purposes.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 326 et seq.\nAppeal by plaintiff from order entered 4 March 1996 by Judge William H. Helms in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 February 1997.\nCaudle & Spears, P.A., by Nancy E. Walker and Lloyd C. Caudle, for plaintiff-appellant.\nStaten L. Wilcox for defendant-appellee Carrie B. Bost.\nArthurs & Foltz, by Douglas P. Arthurs, for defendant-appellee Allstate Insurance Company." }, "file_name": "0042-01", "first_page_order": 80, "last_page_order": 90 }