{ "id": 11711415, "name": "LARRY A. EUBANKS; DEBORAH A. EUBANKS; RAYMOND N. MARTIN, and NAN WALKER HOWELL v. STATE FARM FIRE AND CASUALTY COMPANY", "name_abbreviation": "Eubanks v. State Farm Fire & Casualty Co.", "decision_date": "1997-06-17", "docket_number": "No. COA96-145", "first_page": "483", "last_page": "489", "citations": [ { "type": "official", "cite": "126 N.C. App. 483" } ], "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": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "elements of negligent infliction of emotional distress are \"(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . ., and (3" } ], "opinion_index": 0 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "pin_cites": [ { "parenthetical": "elements of negligent infliction of emotional distress are \"(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . ., and (3" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97", "parenthetical": "elements of negligent infliction of emotional distress are \"(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . ., and (3" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "elements of negligent infliction of emotional distress are \"(1) the defendant negligently engaged in conduct, (2" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "335", "parenthetical": "elements of intentional infliction of emotional distress are \"(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional damage to another\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "452", "parenthetical": "elements of intentional infliction of emotional distress are \"(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional damage to another\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "584 A.2d 626", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7389622 ], "year": 1990, "pin_cites": [ { "page": "632", "parenthetical": "\"In appropriate cases, 'severe' emotional distress may be inferred from the 'extreme and outrageous' nature of the defendant's conduct alone.\" (Citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/a2d/584/0626-01" ] }, { "cite": "303 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "216-17" }, { "page": "217" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523150 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "464" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0461-01" ] }, { "cite": "445 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "621", "parenthetical": "in circumstance wherein insured admitted molestation of child but denied intent to harm, probability of mental or emotional injury resulting from insured's action so great as to allow inference of intent to inflict emotional injury" }, { "page": "621" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135419 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "540", "parenthetical": "in circumstance wherein insured admitted molestation of child but denied intent to harm, probability of mental or emotional injury resulting from insured's action so great as to allow inference of intent to inflict emotional injury" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0534-01" ] }, { "cite": "472 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798851, 798883, 798950, 798797, 798783 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0309-05", "/nc/343/0309-04", "/nc/343/0309-01", "/nc/343/0309-03", "/nc/343/0309-02" ] }, { "cite": "467 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 896", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796000, 795975, 796076, 796028, 795997 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0896-04", "/nc/342/0896-01", "/nc/342/0896-03", "/nc/342/0896-05", "/nc/342/0896-02" ] }, { "cite": "464 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "725" }, { "page": "725", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916280 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/121/0185-01" ] }, { "cite": "346 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697093, 4703166 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0386-02", "/nc/316/0386-01" ] }, { "cite": "340 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "377" }, { "page": "377, n.2" }, { "page": "377" }, { "page": "377" }, { "page": "377" } ], "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "691" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "454 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558308, 2559941, 2557513, 2558155, 2557146 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0740-03", "/nc/339/0740-05", "/nc/339/0740-02", "/nc/339/0740-04", "/nc/339/0740-01" ] }, { "cite": "448 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "116 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 752, "char_count": 14517, "ocr_confidence": 0.758, "pagerank": { "raw": 2.689497949550498e-07, "percentile": 0.8274600179392698 }, "sha256": "77075bcb6d917890c2173700dcbecbb551f92ce672dac9d7cda511e2496e9056", "simhash": "1:01c0d52864ffa057", "word_count": 2300 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "LARRY A. EUBANKS; DEBORAH A. EUBANKS; RAYMOND N. MARTIN, and NAN WALKER HOWELL v. STATE FARM FIRE AND CASUALTY COMPANY" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs contend the trial court erred by granting defendant\u2019s motion for summary judgment and by denying plaintiffs\u2019 like motion. Plaintiffs argue a policy of homeowner\u2019s insurance issued by defendant State Farm Fire and Casualty Company (the policy) imposed upon the latter a duty to defend and provide coverage to the named insured, plaintiff Nan Walker Howell (Howell), in civil actions brought against her by the plaintiffs Larry L. and Deborah A. Eubanks (the Eubanks) and Raymond N. Martin (Martin). We disagree.\nRelevant facts and procedural history are as follows: Howell provided funds to finance custody litigation initiated by her daughter Tammy against Tammy\u2019s former husband Kevin Martin (Kevin), son of plaintiff Raymond N. Martin. Kevin was represented in the custody dispute by attorney Larry L. Eubanks (Eubanks), and Howell believed Martin was furnishing financial assistance to Kevin, thereby prolonging the custody dispute. At some point, Howell asked Dennis Rowe (Rowe), then married to Tammy, to \u201cmurder or get someone to murder Martin and Larry Eubanks.\u201d Rowe reported to Warren County Sheriff\u2019s Department Detective James N. Suggs (Suggs) that Howell wanted Martin and Eubanks \u201celiminated.\u201d Suggs in turn contacted the North Carolina State Bureau of Investigation (SBI). SBI special agent M.D. Wilson (Wilson) assumed the role of a \u201chit man\u201d and met with Howell. At this meeting, which was surreptitiously videotaped by the SBI, Howell indicated she wanted Martin and Eubanks killed, and agreed to pay $5,000 for each murder. Howell paid Wilson $300 as a retainer for the killings.\nOn 15 January 1992, the Eubanks filed civil suit in Forsyth County alleging Howell formed an intent to kill Eubanks and hired a killer for that purpose, that this conduct was extreme, outrageous, and intentional, and resulted in severe emotional injury to the Eubanks. Martin filed a similar complaint against Howell on 3 February 1992.\nHowell was indicted 17 February 1992 by the Davidson County Grand Jury for solicitation to commit the murders of Eubanks and Martin. Following conviction at trial, she was sentenced 15 January 1993 to nine years imprisonment on each charge. In an unpublished opinion, this Court held no error affected Howell\u2019s trial. See State v. Howell, 116 N.C. App. 491, 448 S.E.2d 389 (1994), disc. review denied, 339 N.C. 740, 454 S.E.2d 659 (1995).\nDefendant was first notified of the civil actions by Howell\u2019s criminal defense counsel in correspondence dated 11 November 1993. Counsel demanded defense and coverage under the policy regarding the civil claims against Howell. A similar demand was presented 17 November 1993 to the law firm representing defendant, followed by a further demand 10 December 1993. Defendant declined to defend Howell in plaintiffs\u2019 civil actions by letter to her criminal defense counsel dated 22 December 1993.\nThe Eubanks and Martin respectively amended their complaints 9 and 21 February 1994 to allege Howell intentionally and/or negligently inflicted emotional distress upon plaintiffs. Defendant was informed of this development by Howell\u2019s attorney in a letter dated 22 February 1994, but again declined to provide representation or coverage to Howell. On 11 April 1994, Howell entered into consent judgments awarding $50,000 to Larry A. Eubanks, $50,000 to Deborah Eubanks, and $100,000 to Martin.\nOn 10 June 1994 the Eubanks, Martin and Howell jointly brought the instant declaratory judgment action. Following discovery, plaintiffs and defendant each moved for summary judgment. A hearing on the motions was conducted 16 October 1995, following which the trial court granted defendant\u2019s motion and denied that of plaintiffs in an order filed 8 November 1995. Plaintiffs appeal.\nThe sole question for our resolution is whether the trial court erred in ruling that the policy did not provide coverage under the circumstances sub judice for the torts of intentional infliction of emotional distress or negligent infliction of emotional distress.\nThe duty of an insurance company to defend a policyholder ordinarily is based upon the facts as alleged in the pleadings. Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 691, 340 S.E.2d 374, 377, reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986). If the alleged acts include those both covered and excluded from coverage under the policy, the insurer must defend. Id. at 691, n.2, 340 S.E.2d at 377, n.2. Nonetheless,\nwhen the pleadings allege facts indicating that the event in question is not covered, and the insurer has no knowledge that the facts are otherwise, then it is not bound to defend.\nId. at 691, 340 S.E.2d at 377.\nIn the case sub judice, the Eubanks and Martin alleged claims against Howell for intentional and negligent infliction of emotional distress. There being no contention by plaintiffs that defendant had \u201cknowledge [] the facts [we]re otherwise,\u201d id., than set out in plaintiffs\u2019 complaints, the issue thus is whether those complaints set forth allegations indicating the claims in question were covered under the policy. See id. at 691, 340 S.E.2d at 377.\nSection II of the policy contained the following provisions:\nIf a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:\n1. pay up to our limit of liability for the damages for which the insured is legally liable; and\n2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.\nThe policy defined occurrence as \u201can accident, including exposure to conditions, which results, during the policy period, in... bodily injury.\u201d The term \u201caccident\u201d was not defined, but section III of the policy stated that \u201cPersonal Liability . . . do[es] not apply to bodily injury . . . which is expected or intended by the insured.\u201d\nIn Russ v. Great American Ins. Companies, 121 N.C. App. 185, 464 S.E.2d 723 (1995), disc. review denied, 342 N.C. 896, 467 S.E.2d 905, and motion to reconsider dismissed, 343 N.C. 309, 472 S.E.2d 334 (1996), this Court construed terms of a homeowner\u2019s policy providing coverage for an \u201cOCCURRENCE to which this coverage applies,\u201d wherein \u201coccurrence\u201d was defined as\nan accident including continuous or repeated exposure to the same conditions, which results in BODILY INJURY . . . which the INSURED neither expected or intended to happen.\nId. at 187, 464 S.E.2d at 725. We held the foregoing language excluded acts which \u201care so nearly certain to cause injury that intent to injure can be inferred as a matter of law.\u201d Id. at 188, 464 S.E.2d at 725 (citations omitted) (sexual harassment so nearly certain to cause serious emotional injury that intent to cause such injury may be inferred as matter of law); see also Nationwide Mutual Ins. Co. v. Abernethy, 115 N.C. App. 534, 540, 445 S.E.2d 618, 621 (1994) (in circumstance wherein insured admitted molestation of child but denied intent to harm, probability of mental or emotional injury resulting from insured\u2019s action so great as to allow inference of intent to inflict emotional injury); Commercial Union Ins. Co. v. Mauldin, 62 N.C. App. 461, 464, 303 S.E.2d 214, 216-17 (1983) (insured\u2019s admitted intent to injure wife by shooting into automobile occupied by her constituted admission of general intent to harm victim who was also a passenger in the vehicle because of high probability other passengers would be injured by insured\u2019s act, notwithstanding insured\u2019s testimony he did not intend to shoot victim).\nNotwithstanding, plaintiffs attempt to distinguish our holdings in Russ and Abemethy as limited to \u201ccases involving sexual offenses.\u201d However, we cannot fairly characterize efforts by an individual to obtain the death of another by the hiring of a paid assassin as less deplorable or outrageous, and thus less likely to result in injury or emotional distress, than the conduct considered in those opinions. Indeed, in their initial suits against Howell, each of the plaintiffs respectively complained that Howell\u2019s conduct was \u201coutrageous and intentional behavior\u201d such that, according to plaintiffs, Howell \u201cknew or should have known that severe emotional distress would likely result when plaintiff[s] learned of defendant\u2019s contract to kill plaintiff [s].\u201d\nWe therefore hold solicitation to commit murder is an extreme and outrageous act so nearly certain to result in emotional injury to the intended victim and spouse or parent thereof that intent to commit such injury may be inferred from the act. See Latremore v. Latremore, 584 A.2d 626, 632 (Me. 1990) (\u201cIn appropriate cases, \u2018severe\u2019 emotional distress may be inferred from the \u2018extreme and outrageous\u2019 nature of the defendant\u2019s conduct alone.\u201d (Citations omitted)). Accordingly, Howell\u2019s conduct in arranging to pay Wilson to murder Eubanks and Martin was an extreme and outrageous act so nearly certain to result in emotional injury to plaintiffs that Howell\u2019s intent to inflict that injury may be inferred from her conduct.\nEmotional injury is an essential element of both the tort of intentional infliction of emotional distress, Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981) (elements of intentional infliction of emotional distress are \u201c(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional damage to another\u201d), and the tort of negligent infliction of emotional distress, Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 95, 97, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990) (elements of negligent infliction of emotional distress are \u201c(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . ., and (3) the conduct did in fact cause the plaintiff severe emotional distress\u201d). As the conduct of Howell may be inferred to have intended the emotional distress which forms an essential element of plaintiffs\u2019 claims against her, defendant was not obligated to defend Howell against those claims under the policy which expressly excluded liability for injury \u201cexpected or intended by the insured.\u201d See Mauldin, 62 N.C. App. at 464, 303 S.E.2d at 217 (insured who fired several shots into vehicle occupied by more than one persons \u201cshould have [] expected\u201d likelihood of bullet striking passenger who was not his intended target and insured \u201cobviously knew it was probable\u201d that passenger would be struck \u201cwhen he fired four of five shots\u201d into the automobile).\nPlaintiffs place great reliance upon the allegation in their amended complaint of the tort of negligent infliction of emotional distress, and cite to N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 412 S.E.2d 318 (1992). Stox is distinguishable and plaintiffs\u2019 amendments were unavailing.\nIn Stox, an elderly co-employee pushed the plaintiff, who was also elderly, on the left shoulder; Stox fell and broke her arm, the injury resulting from the fall, no injury being sustained in the pushed shoulder area. Our Supreme Court observed that the trial court\nwas not required to find an intent to injure from evidence showing a mere push to the left shoulder which left no soreness or sign of injury \u2014 evidence entirely unlike the violent firing of bullets into an occupied car at close range.\nId. at 704, 412 S.E.2d at 323.\nIn their amended complaint, plaintiffs reiterated the characterization of Howell\u2019s conduct as \u201cextreme and outrageous [] exceeding all bounds of decent conduct tolerated by society,\u201d and asserted that \u201cit was reasonably foreseeable [] that such extreme and outrageous conduct would cause and did cause severe and/or serious emotional distress\u201d to plaintiffs.\nTaking the facts as alleged in plaintiffs\u2019 amended complaints, see Waste Management, 315 N.C. at 691, 340 S.E.2d at 377, we agree with defendant that the attempted amendments are \u201cbut a different characterization of the same wilful act .... [They] allege [] no new facts . . . nor . . . refute the original allegations.\u201d As in their original complaints, plaintiffs\u2019 amended versions alleged expected or intended injuries unlike those of the plaintiff in Stox and which, as detailed above, were excluded from coverage under the policy.\nAs in Abemethy, we are aware that although our decision denies Howell coverage under the policy, it is the Eubanks and Martin who, in view of Howell\u2019s incarceration and presumed inability to satisfy personally the judgments entered against her, \u201clikely will suffer the effects thereof.\u201d Abernethy, 115 N.C. App. at 540, 445 S.E.2d at 621. While sympathetic to the circumstance of the Eubanks and Martin, we conclude our holding herein is required by precedent and the policy\u2019s exclusionary clause. See id.\nIn short, the trial court\u2019s grant of summary judgment to defendant is affirmed.\nAffirmed.\nJudges WYNN and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Morrow, Alexander, Task & Long, by John F. Morrow, for plaintiff-appellants Larry L. Eubanks, Deborah A. Eubanks, and Raymond N. Martin.", "Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Sam J. Ervin, TV, for plaintiff-appellant Nan Walker Howell.", "Frazier, Frazier, & Mahler, by Harold G. Mahler and Torin L. Fury, for Defendant-Appellee." ], "corrections": "", "head_matter": "LARRY A. EUBANKS; DEBORAH A. EUBANKS; RAYMOND N. MARTIN, and NAN WALKER HOWELL v. STATE FARM FIRE AND CASUALTY COMPANY\nNo. COA96-145\n(Filed 17 June 1997)\nInsurance \u00a7 725 (NCI4th)\u2014 solicitation to commit murder\u2014 intentional and negligent emotional distress \u2014 no coverage by homeowner\u2019s insurance\nA homeowner\u2019s policy which excluded liability for injury \u201cexpected or intended by the insured\u201d did not provide coverage for actions against the insured for intentional and negligent infliction of emotional distress based upon the insured\u2019s hiring of a hit man to kill the plaintiffs since the insured\u2019s solicitation to commit murder was an extreme and outrageous act so nearly certain to result in emotional injury to plaintiffs that the insured\u2019s intent to inflict emotional injury may be inferred from her conduct.\nAm Jur 2d, Insurance \u00a7\u00a7 708, 709.\nAppeal by plaintiffs from judgment entered 8 November 1995 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 10 October 1996.\nMorrow, Alexander, Task & Long, by John F. Morrow, for plaintiff-appellants Larry L. Eubanks, Deborah A. Eubanks, and Raymond N. Martin.\nByrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Sam J. Ervin, TV, for plaintiff-appellant Nan Walker Howell.\nFrazier, Frazier, & Mahler, by Harold G. Mahler and Torin L. Fury, for Defendant-Appellee." }, "file_name": "0483-01", "first_page_order": 521, "last_page_order": 527 }