{ "id": 11713573, "name": "RONNIE EUGENE DRYE and CINDY DRYE, Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant", "name_abbreviation": "Drye v. Nationwide Mutual Insurance", "decision_date": "1997-07-15", "docket_number": "No. COA96-751", "first_page": "811", "last_page": "815", "citations": [ { "type": "official", "cite": "126 N.C. App. 811" } ], "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": "403 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525787 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0788-01" ] }, { "cite": "455 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919763 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0554-01" ] }, { "cite": "186 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571274, 8571405, 8571343, 8571313, 8571379 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0302-01", "/nc/280/0302-05", "/nc/280/0302-03", "/nc/280/0302-02", "/nc/280/0302-04" ] }, { "cite": "185 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550266 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "90" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0085-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "68" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "418 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "839", "parenthetical": "quoting State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986)" }, { "page": "839" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527357 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "209", "parenthetical": "quoting State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986)" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0207-01" ] }, { "cite": "428 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525721 ], "year": 1993, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0451-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "777" }, { "page": "777" }, { "page": "777" } ], "opinion_index": 0 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "505-06" }, { "page": "505-06" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "401 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "134" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522567 ], "year": 1991, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0121-01" ] }, { "cite": "273 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "301 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570249 ], "year": 1981, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0699-01" ] } ], "analysis": { "cardinality": 532, "char_count": 10274, "ocr_confidence": 0.768, "pagerank": { "raw": 3.4139125152739585e-07, "percentile": 0.878258346336022 }, "sha256": "75a750cb581d56c6d303c94803cd38a6433e6088eb4add1db6777fdac5d4ed4c", "simhash": "1:c65154682973a477", "word_count": 1671 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "RONNIE EUGENE DRYE and CINDY DRYE, Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiffs appeal from a dismissal of their complaint pursuant to N.C.R. Civ. P. 12(b)(6). The appeal concerns the proper construction of a business automobile insurance policy.\nPlaintiffs\u2019 allegations are as follows. On 28 December 1989, an automobile collision occurred involving Paul Wayne Dutton, Jr. and Ronnie Eugene Drye in which Drye suffered extensive injuries. The 1989 Pontiac passenger automobile driven by Paul Wayne Dutton, Jr. (Paul Jr.) was owned by his father, Paul Wayne Dutton, Sr. (Paul Sr.) who had a business automobile insurance policy with defendant. At the time, Paul Jr. was living in Paul Sr.\u2019s household. In June 1990, Ronnie and Cindy Drye commenced a civil action against Paul Jr. and his parents (Dutton action). A consent judgment was entered in the Dutton action on 2 November 1993. Pursuant to this judgment, the Duttons assigned all rights to institute an action against defendant in regard to coverage provided by the business automobile policy for the 28 December 1989 collision.\nOn 3 November 1995, plaintiffs filed this action seeking to recover for injuries sustained by Ronnie Drye in the collision. Defendant answered and moved to dismiss the complaint under N.C.R. Civ. P. 12(b)(6). On 23 April 1996, Judge Marvin K. Gray granted defendant\u2019s motion. Plaintiffs appeal.\nThe sole issue on appeal is whether an endorsement to the policy issued by defendant provides liability coverage for the 1989 Pontiac automobile driven by Paul Jr. during the 28 December 1989 collision. A subsidiary issue is whether the endorsement is ambiguous as to this coverage.\nThe policy at issue contains initial coverage (initial policy) and additional coverage through an endorsement (endorsement). The initial policy provides coverage for \u201ccovered autos\u201d listed on the schedule of covered autos attached to the policy. The 1989 Pontiac is not listed on this schedule. However, plaintiffs claim the endorsement adds coverage for additional private passenger autos, including the 1989 Pontiac. The endorsement provides, in pertinent part:\nIf you are an individual, the policy is changed as follows:\nA. CHANGES IN LIABILITY COVERAGE\n* * *\n2. PERSONAL AUTO COVERAGE\nWhile any \u201cauto\" you own of the private passenger type\" is a covered \u201cauto\" under LIABILITY COVERAGE:\na. The following is added to WHO IS AN INSURED:\n\u201cFamily members\u201d are \u201cinsured\u201d for any covered \u201cauto\u201d you own of the \u201cprivate passenger type\u201d....\n(Emphasis added).\nPlaintiffs contend the above provisions clearly provide coverage for any private passenger automobile owned by Paul Sr. Defendant contends this language only refers to automobiles listed on the schedule of covered autos and that this part of the endorsement only extends coverage to family members using a \u201ccovered auto,\u201d i.e., autos listed in the schedule.\nUpon review of a N.C.R. Civ. P. 12(b)(6) dismissal, the plaintiffs\u2019 allegations are taken as true. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981). \u201cA claim should not be dismissed for failure to state a claim . .. unless it appears that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.\u201d Garvin v. City of Fayetteville, 102 N.C. App. 121, 123, 401 S.E.2d 133, 134 (1991).\nOur Supreme Court has summarized the rules of construction for insurance policies as follows:\nWhere a policy defines a term, that definition is to be used. If no definition is given, nontechnical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended. The various terms of the policy are to be harmoniously construed, and if possible, every word and every provision is to be given effect. If, however, the meaning of words or the effect of provisions is uncertain or capable of several reasonable interpretations, the doubts will be resolved against the insurance company and in favor of the policyholder. Whereas, if the meaning of the policy is clear and only one reasonable interpretation exists, the courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein.\nWoods v. Insurance Co., 295 N.C. 500, 505-06, 246 S.E.2d 773, 777 (1978). \u201cAn ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u201d Glover v. First Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993). Furthermore, in insurance policies, \u201c[provisions \u2018which extend coverage must be construed liberally so as to provide coverage.\u2019 \u201d N.C. Farm Bureau Mutual Ins. Co., v. Walton, 107 N.C. App. 207, 209, 418 S.E.2d 837, 839 (1992) (quoting State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986)). \u201cIf provisions in an insurance contract are conflicting, the provision favorable to the insured should be held controlling.\u201d Machinery Co. v. Insurance Co., 13 N.C. App. 85, 90, 185 S.E.2d 308, 311 (1971), cert. denied, 280 N.C. 302, 186 S.E.2d 176 (1972).\nAfter reviewing the policy as a whole, we read the endorsement as creating ambiguity as to whether it adds coverage for the 1989 Pontiac. The word \u201cwhile,\u201d in particular, enhances this ambiguity. Since this word is not defined in the policy, we apply its ordinary meaning. See Woods, 295 N.C. at 505-06, 246 S.E.2d at 777. When used as a conjunction, as here, \u201cwhile\u201d has been defined as:\nla: during the time that. . . b: until the end of time that: as long as ... c: during which time: and during the same time: and meanwhile 2 archaic: until . . . 3a: at the same time that on the contrary: when on the other hand: whereas ... b: in spite of the fact that: although ... 4: at the same time that in a similar manner: when correspondingly: and also.\nWebster\u2019s Third New International Dictionary 2604 (1968); see also Bryan A. Garner, A Dictionary of Modem Legal Usage 931 (2nd ed. 1995) and Webster\u2019s Dictionary of English Usage 957 (1989) (setting forth similar definitions). Commentators on the variant usages of \u201cwhile\u201d warn the use of \u201cwhile\u201d to mean \u201cwhereas/although\u201d is prone to create ambiguity. See Garner, supra, at 931; Webster\u2019s Dictionary of English Usage, supra, at 957. For example, \u201cwhile\u201d can denote \u201ctime\u201d (during the time when) or \u201cconcession\u201d (although). See Garner, supra, at 931. An ambiguity is created when a given use of \u201cwhile\u201d can be construed as both \u201calthough\u201d and \u201cduring the time when\u201d. Id.\nDefendant contends \u201cwhile\u201d simply refers back to a limited coverage under the initial policy only for autos listed in the schedule as \u201ccovered autos.\u201d However, if this were the case, the phrase would more likely read: \u201cwhile any auto listed or specifically described on the auto schedule is a covered auto.\u201d As used in the endorsement, we conclude \u201cwhile\u201d can be reasonably construed in more than one manner. If \u201cwhile\u201d is construed as \u201cduring the time that\u201d or \u201cduring the time when,\u201d the endorsement can be read as adding family members as additional insureds only when any private passenger auto owned by the insured is a covered auto under the initial policy. When \u201cwhile\u201d is construed as \u201cwhereas/although,\u201d the phrase introduced by \u201cwhile\u201d can be fairly and reasonably construed as conceding the initial policy provides liability coverage for any private passenger auto owned by the insured. In addition, the endorsement, read as a whole, can be fairly and reasonably construed as affirmatively providing coverage in addition to that in the initial policy for any private passenger auto owned by the insured and for a family member\u2019s use of such an automobile.\nGiven the ambiguity, the policy, as amended by the endorsement, must be construed against defendant. See Woods, 295 N.C. at 506, 246 S.E.2d at 777. Also, since the endorsement is a provision extending coverage, it \u201c \u2018must be construed liberally so as to provide coverage.\u2019 \u201d See Walton, 107 N.C. App. at 209, 418 S.E.2d at 839 (quoting State Capital Ins. Co., 318 N.C. at 538, 350 S.E.2d at 68). In addition, the endorsement provision at issue can be construed as being in direct conflict with the coverage provisions in the initial policy. When such a conflict is present, the provisions most favorable to the insured, i.e. those in the endorsement, are controlling. See Machinery Co., 13 N.C. App. at 90, 185 S.E.2d at 311.\nDefendant relies upon N. C. Farm Bureau Mut. Ins. Co. v. Welch, 118 N.C. App. 554, 455 S.E.2d 906 (1995), N.C. Farm Bureau Mutual Ins. Co. v. Walton, 107 N.C. App. 207, 418 S.E.2d 837 (1992), and Kruger v. State Farm Mut. Auto. Ins. Co., 102 N.C. App. 788, 403 S.E.2d 571 (1991). These cases differ significantly from the case on appeal because the policies in these cases were not expanded by endorsements as was the Duttons\u2019 policy.\nThe trial court\u2019s order dismissing plaintiffs\u2019 complaint is reversed and the case remanded.\nReversed and remanded.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher Kincheloe and Stacy T. Miller, for plaintiff-appellants.", "Templeton & Raynor, P.A., by Kenneth R. Raynor and Marcey P. Rose, for defendant-appellee." ], "corrections": "", "head_matter": "RONNIE EUGENE DRYE and CINDY DRYE, Plaintiffs v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant\nNo. COA96-751\n(Filed 15 July 1997)\nInsurance \u00a7 557 (NCI4th)\u2014 business automobile policy\u2014 ambiguous endorsement \u2014 auto not listed in schedule\u2014 insured\u2019s son as driver \u2014 liability coverage\nIn an endorsement to a business automobile policy stating that \u201cwhile\u201d any private passenger automobile owned by the named insured is a covered automobile, family members are insured for purposes of liability coverage for such automobile, the word \u201cwhile\u201d is ambiguous and could be construed as meaning \u201cwhereas/although.\u201d The endorsement thus could be construed to provide coverage for the son of the named insured as the driver of an automobile owned by the named insured but not listed on the policy\u2019s schedule of covered automobiles.\nAm Jur 2d, Automobile Insurance \u00a7 70.\nAppeal by plaintiffs from order entered 23 April 1996 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 February 1997.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher Kincheloe and Stacy T. Miller, for plaintiff-appellants.\nTempleton & Raynor, P.A., by Kenneth R. Raynor and Marcey P. Rose, for defendant-appellee." }, "file_name": "0811-01", "first_page_order": 849, "last_page_order": 853 }