{ "id": 11652781, "name": "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation, Plaintiff v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation, Defendants", "name_abbreviation": "Progressive American Insurance v. Vasquez", "decision_date": "1998-06-16", "docket_number": "No. COA97-976", "first_page": "742", "last_page": "750", "citations": [ { "type": "official", "cite": "129 N.C. App. 742" } ], "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": "129 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648330 ], "opinion_index": -1, "case_paths": [ "/nc-app/129/0077-01" ] }, { "cite": "420 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "332 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505733 ], "year": 1992, "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0309-01" ] }, { "cite": "376 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "764" }, { "page": "764" } ], "opinion_index": 0 }, { "cite": "324 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485985 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "225" }, { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0221-01" ] }, { "cite": "478 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "668", "parenthetical": "quoting Proctor v. N.C. Farm Bureau Mutual Ins. Co., 324 N.C. 221, 225, 376 S.E.2d 761, 764 (1989)" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 760", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890682 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "764", "parenthetical": "quoting Proctor v. N.C. Farm Bureau Mutual Ins. Co., 324 N.C. 221, 225, 376 S.E.2d 761, 764 (1989)" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0760-01" ] }, { "cite": "413 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500017 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0114-01" ] }, { "cite": "407 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554698, 2552970, 2554955, 2553111, 2554909 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0497-03", "/nc/329/0497-01", "/nc/329/0497-04", "/nc/329/0497-02", "/nc/329/0497-05" ] }, { "cite": "402 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524290 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0392-01" ] }, { "cite": "384 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492089, 2492692, 2488557 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0277-02", "/nc/325/0277-01", "/nc/325/0277-03" ] }, { "cite": "379 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486785 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0513-01" ] }, { "cite": "444 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "172" } ], "opinion_index": 0 }, { "cite": "336 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535980 ], "year": 1994, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0567-01" ] }, { "cite": "497 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "431" } ], "opinion_index": 0 }, { "cite": "478 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53869 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0151-01" ] }, { "cite": "463 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795946, 795958 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0197-02", "/nc/342/0197-01" ] }, { "cite": "461 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "341 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793187 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0597-01" ] }, { "cite": "129 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648330 ], "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0077-01" ] } ], "analysis": { "cardinality": 625, "char_count": 21118, "ocr_confidence": 0.767, "pagerank": { "raw": 6.959192147457296e-08, "percentile": 0.42180721733197574 }, "sha256": "a02aedc2d33b975fa3b3e4ec347add9f570008b8beb06077c4a6b4f5dc9e50a6", "simhash": "1:0df9d05ef0ea046a", "word_count": 3318 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and TIMMONS-GOODSON concur." ], "parties": [ "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation, Plaintiff v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nAetna\u2019s Anneal\nI.\nWe first consider whether the trial court erred in holding that the excess umbrella policy provides underinsured motorist coverage in addition to the underinsured motorist coverage already provided by the underlying business auto policy. Aetna argues that the umbrella policy does not expressly provide for UIM coverage and that UIM coverage, therefore, can only exist in the umbrella policy if it is read into the policy through G.S. 20-279.21, the Financial Responsibility Act (\u201cthe FRA\u201d). Aetna contends that the FRA allows a maximum of $1,000,000.00 in UIM coverage with any one insurer, and that the maximum amount was provided in the underlying policy. Aetna urges that Isenhour v. Universal Underwriters Ins. Co., 341 N.C. 597, 461 S.E.2d 317, reh\u2019g denied, 342 N.C. 197, 463 S.E.2d 237 (1995), appeal after remand, 345 N.C. 151, 478 S.E.2d 197 (1996), does not require additional UIM coverage under an excess policy. Aetna further argues that the excess coverage is voluntary and not subject to the FRA. Finally, Aetna argues that because the umbrella coverage addresses a risk different from the risk addressed by primary motor vehicle coverage, the FRA should not apply. Accordingly, Aetna argues that the trial court should be reversed.\nThe claimants argue that pursuant to the Supreme Court\u2019s decision in Isenhour, the umbrella policy is subject to the FRA and must be applied separately from the underlying policy to determine the existence and amount of UIM coverage.\nThis Court recently determined that an umbrella policy which provided \u201cbodily injury liability insurance\u201d must also provide UIM coverage pursuant to the mandate of the FRA. Piazza v. Little, 129 N.C. App. 77, 81, 497 S.E.2d 429, 431 (1998). Since UIM coverage was not specifically rejected by the insured, and the policy provides coverage for \u201cbodily injury,\u201d we hold that the umbrella policy provides UIM coverage and that the UIM coverage provided by the umbrella policy is in addition to the coverage provided by the underlying BAP. Accordingly, the trial court\u2019s order concluding that the umbrella policy provides UIM coverage is affirmed.\nII.\nWe next consider whether the trial court erred in holding that the umbrella policy provides underinsured motorist coverage in an amount that is not reduced by amounts paid or payable to the claimants under workers\u2019 compensation. Aetna argues that G.S. 20-279.21(e) mandates a reduction of coverage to the extent Aetna has paid benefits under its workers\u2019 compensation policy. See Brantley v. Starling, 336 N.C. 567, 572, 444 S.E.2d 170, 172 (1994). The claimants argue that the statute does not mandate a reduction but merely permits a reduction. Claimants distinguish Brantley by arguing that the insurance policies in Brantley included policy provisions specifically limiting liability, as permitted by G.S. 20-279.21(e). Accordingly, claimants argue that the assignment of error should be overruled.\nWith regard to reduction of UIM coverage, G.S. 20-279.21(e) states that \u201c[s]uch motor vehicle liability policy need not insure against loss from any liability for which benefits are in whole or in part either payable or required to be provided under any workers\u2019 compensation law . . . .\u201d (Emphasis added). This statute does not mandate that UIM coverage be reduced by the amount of workers\u2019 compensation benefits, but instead allows for the insurer to limit liability by appropriate language in the contract of insurance. See Brantley, 336 N.C. App. at 567, 444 S.E.2d at 170 and Manning v. Fletcher, 324 N.C. 513, 379 S.E.2d 854, reh\u2019g denied, 325 N.C. 277, 384 S.E.2d 517 (1989), appeal after remand, 102 N.C. App. 392, 402 S.E.2d 648, review allowed, 329 N.C. 497, 407 S.E.2d 857 (1991), aff'd, 331 N.C. 114, 413 S.E.2d 798 (1992). Here, there was no explicit limitation of liability in the umbrella policy providing for the reduction of UIM coverage by amounts paid by a workers\u2019 compensation carrier. Accordingly, we hold that the amount of UIM coverage here is not reduced by the amount paid or payable under the workers\u2019 compensation policy. The assignment of error is overruled.\nClaimants\u2019 Cross-Anneal\nIII.\nWe next consider whether the trial court erred by concluding that the umbrella policy provided only one million dollars in UIM coverage for all claims arising out of the 8 July 1994 accident in addition to that provided by the underlying business auto policy. The claimants argue that the trial court erred in limiting the amount of coverage to $1,000,000.00 for all claims and all claimants. Claimants first contend that there should be UIM coverage in the amount of $20,000,000.00 since that was the highest limit of bodily injury liability available for any one vehicle under the policy. The claimants next contend that maximum coverage should be applied on a per person basis, rather than on a per accident basis. The claimants argue that because \u201cthe legislature is conspicuously silent concerning the operation of the statute upon multiple claimants injured in one occurrence, liberal construction compels the conclusion that the coverage afforded under this statute is per person.\u201d Additionally, the claimants assert that the statute should be read \u201c \u2018to provide the innocent victim with the fullest possible protection.\u2019 \u201d Metropolitan Property and Casualty Ins. Co. v. Caviness, 124 N.C. App. 760, 764, 478 S.E.2d 665, 668 (1996) (quoting Proctor v. N.C. Farm Bureau Mutual Ins. Co., 324 N.C. 221, 225, 376 S.E.2d 761, 764 (1989)) (emphasis added). The claimants contend that the \u201cfullest possible protection\u201d would be afforded here if the statute is interpreted to provide UIM coverage in the amount of $20,000,000.00 per claimant. Aetna argues that coverage should be limited to a maximum of $1,000,000.00 for all claims.\nAfter careful consideration of the record, briefs and contentions of the parties, we reverse and hold that the umbrella policy provides $20,000,000.00 in coverage for all claims. G.S. 20-279.21(b)(4) provides that motor vehicle liability policies \u201c[s]hall. .. provide underin-sured motorist coverage in an amount. . . [not] greater than one million dollars ($1,000,000) as selected by the policy owner.\u201d (Emphasis added). Here, the policy owner made no selection of any amount. G.S. 20-279.21(b)(4) provides that \u201c[i]f the named insured does not reject underinsured motorist coverage and does not select different coverage limits, the amount of underinsured motorist coverage shall be equal to the highest limit of bodily injury liability coverage for any one vehicle in the policy.\u201d There was no evidence in the record here that the insured either rejected UIM coverage or selected a different coverage limit as contemplated by G.S. 20-279.21. Accordingly, we hold that UIM coverage under the umbrella policy is \u201cequal to the highest limit of bodily injury liability coverage for any one vehicle in the policy,\u201d which is $20,000,000.00. G.S. 20-279.21(b)(4). See Isenhour, 341 N.C. at 606, 461 S.E.2d at 322. This result is also in accord with the \u201cunderlying purpose\u201d of the FRA which, \u201cas acknowledged by our Supreme Court, \u2018is best served when the statute is interpreted to provide the innocent victim with the fullest possible protection.\u2019 \u201d Caviness, 124 N.C. App. at 764, 478 S.E.2d at 668 (quoting Proctor, 324 N.C. at 225, 376 S.E.2d at 764) (emphasis added).\nWhile we hold that the umbrella policy provides $20,000,000.00 of UIM coverage, we disagree with claimants and conclude that the coverage applies on a per accident basis. The FRA is not explicit as to whether the coverage maximum should apply on a per person basis or a per accident basis. However, G.S. 20-279.5(c) provides that the minimum coverage applicable is $25,000.00 per person and $50,000.00 per accident. Accordingly, the maximum coverage should similarly be determined to be a per person, per accident limit. To find otherwise would leave open the possibility of open ended coverage far beyond the contemplation of the parties and beyond the risk undertaken by the insurer. In accidents involving multi-passenger vehicles there often are numerous injured passengers. If the maximum coverage were to be applied on a per person basis rather than on a per accident basis, an accident injuring multiple passengers could require much greater coverage than the limits intended by the parties. The parties to the insurance contract may make clear in the policy\u2019s terms just what limits apply, so long as the policy language does not conflict with the mandate of the FRA. Accordingly, we hold that umbrella policy here provides a maximum of $20,000,000.00 of UIM coverage per accident.\nIV.\nWe next consider whether the trial court erred in concluding that the business auto policy provides only $1,000,000.00 in UIM coverage for all claims. Claimants argue that the business auto policy here should also provide $1,000,000.00 in coverage per claimant. Aetna argues that the trial court did not err in concluding that the BAP provides only $1,000,000.00 per accident. The BAP explicitly, by its terms, provides that its coverage applies on a per accident basis, stating that \u201cthe company shall not be liable for amounts in excess of $1,000,000 for each accident.\u201d The FRA does not specifically address whether the $1,000,000.00 cap applies on a per person or per accident basis. However, Aetna argues that \u201cthe statutory maximum UIM limit is expressed in terms of coverage available for the vehicle involved in the accident, not each person in it.\u201d Accordingly, Aetna contends that the BAP complies with the FRA and its terms should control.\nFor the same reasons stated in Part III supra, we hold that the statutory maximum coverage applies on a per accident basis and affirm the trial court\u2019s holding. We also find that the BAP explicitly states that the policy limit applies on a per accident basis. Where the policy language does not conflict with the language of the statute, the language of the policy should control. Lanning v. Allstate Ins. Co, 332 N.C. 309, 312, 420 S.E.2d 180, 182 (1992).\nV.\nFinally we consider whether the trial court erred in reducing the business auto policy coverage payable by the amount of primary carrier liability plus the aggregate amounts paid or payable as workers\u2019 compensation benefits to all claimants. The claimants contend that the trial court erred in reducing the Aetna business auto policy coverage by the amount of primary carrier liability coverage paid by Progressive American, and then further reducing the Aetna coverage by the aggregate amounts paid or payable to all claimants under any workers\u2019 compensation policy. Claimants argue that Manning, 102 N.C. App. at 400, 402 S.E.2d at 652 held that the amount of primary coverage cannot be added to the workers\u2019 compensation offset to determine the remaining UIM coverage. Claimants also argue that the trial court further erred when it aggregated the total of workers\u2019 compensation payments made to all claimants as a credit against UIM coverage, because, they argue, multiple claimants are not contemplated by the FRA. Accordingly, claimants argue that this Court should reverse the provisions in the trial court\u2019s order which stacks the individual workers\u2019 compensation benefits received by the claimants when calculating the sum to credit against Aetna\u2019s UIM coverages. Aetna argues that the BAP provides that any amount payable under the BAP coverage is reduced by all workers\u2019 compensation benefits paid or payable for the accident at issue and by the amount paid by the tortfeasor\u2019s liability carrier. Aetna further argues that these policy provisions are authorized by the FRA. Aetna also contends that Manning is not controlling because the claimants here have retained the amount paid by the primary liability insurer rather than reimburse the workers\u2019 compensation lien.\nAfter careful consideration of the record, briefs and contentions of both parties, we affirm. The policy is clear and unambiguous that any amount payable under the BAP is reduced by all workers\u2019 compensation benefits paid or payable for the accident and by the amount paid by the tortfeasor\u2019s liability carrier. These provisions are authorized by G.S. 20-279.21(b)(4) and (e). Petitioner\u2019s argument that the trial court erred in aggregating the total workers\u2019 compensation payments made to all the claimants as a credit against UIM coverage is moot. Plaintiff\u2019s argument was that each claimants UIM coverage should be reduced only by payments made to that particular claimant. However, plaintiff\u2019s argument was dependent on our finding that coverage is supplied on a per person basis. As we have stated, maximum coverage is calculated on a per accident basis. Accordingly, it was proper for the court to aggregate worker\u2019s compensation payments made to all the claimants as a credit against UIM coverage.\nIn sum, we hold that the umbrella policy provides UIM coverage in the amount of $20,000,000.00 per accident. The BAP provides UIM coverage in the amount of $1,000,000.00 per accident. UIM coverage in the umbrella policy is not automatically reduced by the amount paid or payable under the workers\u2019 compensation policy because no limitation of liability provision providing for reduction was included in the policy. Finally, the amount payable under the BAP is reduced by the total of all workers\u2019 compensation benefits paid or payable for the accident and by the amount paid by the tortfeasor\u2019s liability carrier, because the policy\u2019s language explicitly provided for reduction pursuant to G.S. 20-279.21(b)(4) and (e).\nAffirmed in part, reversed in part.\nJudges JOHN and TIMMONS-GOODSON concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Womble, Carlyle, Sandridge & Rice, by Richard T. Rice and Alison R. Bost, for defendant-appellant Aetna Casualty & Surety Company.", "Yates, McLamb & Weyher, L.L.P., by Andrew A. Vanore, III, for defendant-appellant Aetna Casualty & Surety Company.", "Barnes, Braswell & Haithcock, RA., by Glenn A. Barfield, for defendant-appellant Norman Johnson, Jr.", "Jonathan S. Williams, P.C., by Jonathan S. Williams, for defendant-appellant William T. Parker.", "Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for defendant-appellant Tyvolia Faison.", "Whitley, Jenkins & Riddle, by Eugene Jenkins, for defendant-appellant Virginia Lassiter." ], "corrections": "", "head_matter": "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation, Plaintiff v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation, Defendants\nNo. COA97-976\n(Filed 16 June 1998)\n1. Insurance \u00a7 529 (NCI4th)\u2014 underinsured motorist coverage \u2014 excess umbrella policy\nThe trial court correctly concluded that an excess umbrella policy provides underinsured motorist coverage in addition to the underinsured coverage already provided by the underlying business auto policy. The UIM coverage was not specifically rejected by the insured and the policy provided coverage for \u201cbodily injury\u201d; under Piazza v. Little, 129 N.C. App. 77, an umbrella policy which provides \u201cbodily injury liability insurance\u201d must provide UIM coverage pursuant to the mandate of N.C.G.S. \u00a7 20-279.21.\n2. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 workers\u2019 compensation payments \u2014 no limitation of liability in policy\u2014 no reduction of UIM\nThe amount of underinsured motorist coverage under an umbrella policy was not reduced by amounts paid or payable under workers\u2019 compensation where there was no explicit limitation of liability in the umbrella policy providing for reduction of UIM coverage by amounts paid by a workers\u2019 compensation carrier. N.C.G.S. \u00a7 20-279.21(e) does not mandate that UIM coverage be reduced by the amount of workers\u2019 compensation benefits, but instead allows for the insured to limit liability by appropriate language in the contract of insurance.\n3. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 excess umbrella policy \u2014 multiple claimants \u2014 limit of coverage\nIn an action arising from a motor vehicle accident, the UIM coverage under an umbrella policy provided $20,000,000 in coverage for all claims, the highest limit of bodily injury liability available for any one vehicle under the policy. There was no evidence in the record that the insured either rejected UIM coverage or selected a different coverage limit as contemplated by N.C.G.S. \u00a7 20-279.21.\n4. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 umbrella policy \u2014 maximum coverage \u2014 per accident basis\nIn an action arising from a motor vehicle accident, the UIM coverage under an umbrella policy applied on a per accident basis. To find otherwise would leave open the possibility of open-ended coverage far beyond the contemplation of the parties and the risk undertaken by the insurer; however, the parties to the insurance contract may make clear in the policy\u2019s terms just what limits apply, so long as the language does not conflict with the mandate of the Financial Responsibility Act.\n5. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 business auto policy \u2014 maximum coverage \u2014 per accident basis\nIn an action arising from a motor vehicle collision, the trial court correctly concluded that the statutory maximum UIM coverage of the underlying business auto policy applied on a per accident basis. In addition to the reasons stated above, the policy here explicitly states that the limit applies on a per accident basis.\n6. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 business auto policy \u2014 workers\u2019 compensation and primary carrier coverage \u2014 reduction of business auto policy coverage\nIn an action arising from a motor vehicle collision, the trial court properly concluded that the amount of the business auto policy UIM coverage should be reduced by the amount of primary carrier liability plus the aggregate amounts paid or payable as workers\u2019 compensation benefits to all claimants. The policy is clear and unambiguous that any amount payable under the BAP is reduced by all workers\u2019 compensation benefits paid or payable for the accident and by the amount paid by the tortfeasor\u2019s liability carrier, and these provisions are authorized by N.C.G.S. \u00a7 20-279.21(b)(4) and (e). Maximum coverage is calculated on a per accident basis.\nAppeal by defendant Aetna Casualty and Surety Company and cross appeal by defendants Tyvolia Faison, Virginia Lassiter, Norman Johnson, Jr., and William T. Parker from order entered 3 April 1997 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 31 March 1998.\nThis declaratory judgment action arises out of a truck collision that occurred on 8 July 1994. In the 8 July 1994 accident, a flatbed truck owned by Francisco Vasquez and driven by Javier Flores Luna collided with a pickup truck owned by T. A. Loving, Inc. and driven by Loving\u2019s employee, Daryell Glenn Carlisle. Amos H. Bryant, Norman Johnson, Jr., and William T. Parker were passengers in the pickup truck and were also employed by Loving. Carlisle and Bryant were killed and Johnson and Parker suffered personal injuries. Carlisle, Bryant, Johnson and Parker were employed by T. A. Loving, Inc., the owner of the pickup truck. The estates and individuals have received workers\u2019 compensation benefits under a workers\u2019 compensation policy issued to T. A. Loving, Inc. by defendant Aetna Casualty and Surety Company (\u201cAetna\u201d). The estates and individuals (\u201cthe claimants\u201d) have also received $250,000 under primary liability coverage from plaintiff Progressive American Insurance Company (\u201cProgressive American\u201d). The employees and their estates now seek underinsured motorist coverage (\u201cUIM\u201d) under a business auto policy (\u201cBAP\u201d) and an excess policy issued to T. A. Loving, Inc. by Aetna.\nProgressive American filed this declaratory judgment action on 1 June 1995. Aetna filed an answer and cross-claim for declaratory judgment against defendants Tyvolia Faison, Administrator of the Estate of Daryell Glen Carlisle, Flora Maye Bryant, Administrator of the Estate of Amos H. Bryant, Johnson and Parker, on 19 March 1996. Aetna moved for summary judgment on 23 August 1996.\nFollowing a hearing on 21 February 1997, the trial court entered summary judgment on 3 April 1997. In its order, the trial court determined that Aetna\u2019s business auto policy provides $1,000,000.00 in underinsured motorist coverage \u201cfor the aggregate of all claims and all claimants\u201d arising out of the accident. The trial court also held that this obligation is reduced by the amount of primary carrier liability coverage paid by Progressive American and by \u201cthe aggregate amounts paid or payable under any workers\u2019 compensation policy to all claimants.\u201d The trial court further held that Aetna\u2019s excess liability policy provides additional underinsured motorist coverage in the amount of $1,000,000.00 for all claims. The trial court also determined that the $1,000,000.00 from the Aetna excess liability policy is not reduced by any workers\u2019 compensation payments made to the claimants. Both Aetna and the claimants appeal.\nWomble, Carlyle, Sandridge & Rice, by Richard T. Rice and Alison R. Bost, for defendant-appellant Aetna Casualty & Surety Company.\nYates, McLamb & Weyher, L.L.P., by Andrew A. Vanore, III, for defendant-appellant Aetna Casualty & Surety Company.\nBarnes, Braswell & Haithcock, RA., by Glenn A. Barfield, for defendant-appellant Norman Johnson, Jr.\nJonathan S. Williams, P.C., by Jonathan S. Williams, for defendant-appellant William T. Parker.\nMast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for defendant-appellant Tyvolia Faison.\nWhitley, Jenkins & Riddle, by Eugene Jenkins, for defendant-appellant Virginia Lassiter." }, "file_name": "0742-01", "first_page_order": 782, "last_page_order": 790 }