{
  "id": 11800334,
  "name": "FIELDCREST CANNON, INC., Plaintiff v. FIREMAN'S FUND INSURANCE COMPANY, THE NORTH RIVER INSURANCE COMPANY and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Defendants",
  "name_abbreviation": "Fieldcrest Cannon, Inc. v. Fireman's Fund Insurance",
  "decision_date": "1997-11-18",
  "docket_number": "No. COA95-721",
  "first_page": "729",
  "last_page": "733",
  "citations": [
    {
      "type": "official",
      "cite": "127 N.C. App. 729"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "N.C. Gen. Stat. \u00a7 58-48-1",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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    },
    {
      "cite": "477 S.E.2d 59",
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      "reporter": "S.E.2d",
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      "year": 1996,
      "opinion_index": 0
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      "cite": "124 N.C. App. 232",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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  "last_updated": "2023-07-14T19:43:16.540119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Panel consisting of:",
      "Judges EAGLES, MARTIN, John C., and McGEE."
    ],
    "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": "PER CURIAM.\nOnly the facts necessary for determination of the issue on rehearing are set out here. For a more complete statement of the facts of this case, see this Court\u2019s previous opinion at 124 N.C. App. 232, 477 S.E.2d 59 (1996).\nPlaintiff Fieldcrest Cannon, Inc. instituted 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 1980\u2019s, and to recover sums paid pursuant to judgments and settlements of certain of those claims. Cannon was insured by defendant Fireman\u2019s Fund Insurance Company (hereinafter \u201cFireman\u2019s Fund\u201d) under four (4) consecutive, identical comprehensive general liability policies written as primary insurance and covering occurrences during the period from 15 May 1978 through and including 15 May 1982.\nDefendant North River and Mission Insurance Company (hereinafter \u201cMission\u201d) insured Cannon pursuant to \u201cumbrella\u201d liability policies which were written as excess coverage to 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. When Mission became insolvent in 1987, defendant Guaranty assumed responsibility for certain of Mission\u2019s obligations pursuant to the North Carolina Insurance Guaranty Association Act, N.C. Gen. Stat. \u00a7 58-48-1, et seq.\nIn this Court\u2019s decision filed 5 November 1996, we reversed the trial court\u2019s entry of summary judgment in favor of defendant Guaranty premised upon the following: (1) Mission\u2019s admission of its duty to defend and fund the underlying discrimination actions; and (2) the trial court\u2019s statement in its 30 June 1993 order dismissing plaintiff\u2019s action against defendant North River that plaintiff Fireman\u2019s Fund\u2019s policies fully covered the underlying discrimination claims. In light of our holding that the trial court\u2019s order of summary judgment as to Stanley Rosenthal\u2019s lawsuit would be reversed, we also reversed the trial court\u2019s 26 April 1993 order granting defendant Guaranty\u2019s motion for summary judgment. Defendant Guaranty petitioned for rehearing, and by order filed 8 January 1997, we allowed this petition, without additional briefing or oral argument, for the limited purpose of addressing defendant Guaranty\u2019s duty to defend and indemnify plaintiff Fieldcrest Cannon in the underlying discrimination claims. In our opinion filed 2 September 1997, we affirmed the entry of summary judgment for defendant Guaranty, but in all other respects, the original opinion of this Court filed 5 November 1996 was adopted and reaffirmed. Plaintiff and defendant North River jointly petitioned for rehearing, and we allowed that joint petition without additional briefing or oral argument, for the limited purpose of addressing plaintiff and defendant North River\u2019s argument that our 2 September 1997 opinion is inconsistent with the 5 November 1996 opinion filed in this case.\nOn rehearing, plaintiff and defendant North River contend that this Court\u2019s 2 September 1997 opinion was inapposite to its 5 November 1996 opinion in this same case. We agree, and therefore, withdraw the 2 September 1997 opinion and enter this new opinion consistent with the wording of our earlier 5 November 1996 opinion.\nHence, we again consider whether the trial court erred in determining that there was no genuine issue of fact and as a matter of law Mission\u2019s policy imposed no duty to defend and indemnify plaintiff Fieldcrest Cannon in the underlying discrimination actions. Again, we answer in the negative, and accordingly, affirm the trial court\u2019s 26 April 1993 order granting defendant Guaranty\u2019s motion for summary judgment.\nMission\u2019s umbrella policy defined \u201cpersonal injury\u201d in the following manner:\n\u201cPersonal injuries\u201d . . . means bodily injury (including death at any time resulting therefrom), mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, humiliation; also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any Advertising activities.\nThe Mission policy by its own terms did not apply \u201cto any liability arising out of the violation of any statute, law, ordinance or regulation prohibiting discrimination or humiliation because of race, creed, colour or national originf.]\u201d\nThe definition of personal injury in defendant Fireman\u2019s Fund\u2019s \u201cBroad Form Comprehensive General Liability Endorsement G222\u201d includes:\n(1) False arrest, detention or imprisonment, or malicious prosecution;\n(2) wrongful entry or eviction or other invasion of the right of private occupancy;\n(3) the publication or utterance\n(a) of a libel or slander or other defamatory or disparaging material, or\n(b) in violation of an individual\u2019s right of privacy ....\nThe Fireman\u2019s Fund\u2019s policies defined \u201cbodily injury\u201d: \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 In our 5 November 1996 opinion, we noted that there was a genuine issue of material fact as to whether damages for negligent and intentional infliction of emotional distress fall within the \u201cbodily injury\u201d coverage of defendant Fireman\u2019s Fund\u2019s policies. Fieldcrest Cannon, Inc. v. Fireman\u2019s Fund Insurance Co., 124 N.C. App. 232, 477 S.E.2d 59.\nAlthough Mission\u2019s policy definition for personal injury is more broad than the applicable definitions included in defendant Fireman\u2019s Fund\u2019s policies, the bare allegations of the underlying discrimination actions (with the exception of the Rosenthal suit) include claims based on sexual discrimination, retaliatory discharge, and intimidation and harassment, but fail to make any allegations of \u201cbodily injury (including death at any time resulting therefrom), mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, humiliation; also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any Advertising activities[,]\u201d so as to fall within the coverage for \u201cpersonal injury\u201d in Mission\u2019s policy. Significantly, Mr. Rosenthal\u2019s claim for negligent infliction of emotional distress may fall within the coverage of Mission\u2019s policy. However, this fact alone is not determinative of the propriety of summary judgment for defendant Guaranty.\nMission was an \u201cumbrella,\u201d excess coverage carrier; as an \u201cumbrella,\u201d excess coverage carrier, Mission could not be liable for the underlying discrimination claims unless and until the primary insurers\u2019 coverage limits were paid. Here, all parties had agreed that the discrimination claims would not exceed the $500,000 per occurrence coverage limits of Fireman\u2019s Fund\u2019s primary insurance. If on remand a jury finds that defendant Fireman\u2019s Fund\u2019s policies provided coverage for Mr. Rosenthal\u2019s claim for negligent infliction of emotional distress, defendant Guaranty is absolved of residual liability by prior agreement of the parties that \u201cthe discrimination claims [would] not exceed the $500,000 per occurrence limits of the Fireman\u2019s Fund primary insurance[.]\u201d Similarly, if on remand a jury finds that Mr. Rosenthal\u2019s claim for negligent infliction of emotional distress is not covered by defendant Fireman\u2019s Fund\u2019s policies, defendant Guaranty is still absolved of liability since the liability (or lack thereof) of both defendants Fireman\u2019s Fund and Guaranty is based upon policy language which is essentially the same. In any event, there is no genuine issue of material fact as to whether defendant Guaranty has a duty to defend or indemnify the underlying discrimination actions.\nIn sum, on this record, there is no genuine issue of material fact as to whether defendant Guaranty had a duty to defend and indemnify plaintiff corporation. Accordingly, the 26 April 1993 order of the trial court granting defendant Guaranty\u2019s motion for summary judgment is affirmed.\nAffirmed.\nPanel consisting of:\nJudges EAGLES, MARTIN, John C., and McGEE.",
        "type": "majority",
        "author": "PER CURIAM."
      }
    ],
    "attorneys": [
      "Blair Conaway Bograd & Martin, P.A., by Bentford E. Martin, for plaintiff-appellee.",
      "Baucom, Claytor, 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, TV, 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 18 November 1997)\nInsurance \u00a7\u00a7 920, 949 (NCI4th)\u2014 employer\u2019s liability insurance \u2014 discrimination claims \u2014 negligent infliction of emotional distress \u2014 excess insurer not liable\nAn employer\u2019s \u201cumbrella,\u201d excess coverage liability policy imposed no duty on the excess insurer to defend and indemnify the employer for discrimination claims based on sexual discrimination, retaliatory discharge, and intimidation and harassment because those claims do not fall within the \u201cpersonal injury\u201d coverage provided by the policy. Furthermore, the excess insurer had no duty to defend and indemnify the employer for a claim for negligent infliction of emotional distress because (1) if the jury should find that the primary insurer\u2019s policies provide coverage for this claim, the excess insurer is absolved of residual liability by prior agreement of the parties that no claim would exceed the $500,000 per occurrence limits of the primary insurance, and (2) if the jury should find that this claim is not covered by the primary insurer\u2019s policies, the excess insurer is still absolved of liability since the liability of both the primary and excess insurers is based upon similar language.\nDefendant Fireman\u2019s Fund Insurance Company appealed 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. Plaintiff cross-appealed from orders entered 26 April and 30 June 1993 by Judge Ferrell in Mecklenburg County Superior Court. The appeal was heard in this Court on 19 March 1996, and the opinion was filed 5 November 1996. Defendant North Carolina Insurance Guaranty Association (hereinafter \u201cGuaranty\u201d) petitioned for rehearing. The petition was granted by order of this Court entered 8 January 1997, and the matter was subsequently heard on the petition to rehear without additional briefs or oral argument. By opinion of this Court filed 2 September 1997, without disturbing our 5 November 1996 opinion as to the remaining parties, summary judgment as to defendant Guaranty was affirmed. Plaintiff and defendant North River Insurance Company (hereinafter \u201cNorth River\u201d) jointly petitioned for rehearing. This petition was granted, and the matter was again heard in the Court of Appeals without additional briefs or oral argument.\nBlair Conaway Bograd & Martin, P.A., by Bentford E. Martin, for plaintiff-appellee.\nBaucom, Claytor, 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, TV, 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": "0729-01",
  "first_page_order": 765,
  "last_page_order": 769
}