{ "id": 11466929, "name": "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff v. CHRISTOPHER T. GRADY, and JOHN VAN B. METTS, Defendants", "name_abbreviation": "Nationwide Mutual Fire Insurance v. Grady", "decision_date": "1998-07-21", "docket_number": "No. COA97-883", "first_page": "292", "last_page": "298", "citations": [ { "type": "official", "cite": "130 N.C. App. 292" } ], "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": "428 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548707, 2547831, 2550268, 2547197, 2544383 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0463-03", "/nc/333/0463-04", "/nc/333/0463-05", "/nc/333/0463-02", "/nc/333/0463-01" ] }, { "cite": "423 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "108 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523080 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0152-01" ] }, { "cite": "442 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "343" }, { "page": "344" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527857 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0604-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "426 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "453", "parenthetical": "quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524720 ], "year": 1993, "pin_cites": [ { "page": "156", "parenthetical": "quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0152-01" ] }, { "cite": "400 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528017 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0636-01" ] }, { "cite": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "321" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "702" }, { "page": "703-04" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "73-74" }, { "page": "73" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "547" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "144 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "820" } ], "opinion_index": 0 }, { "cite": "265 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576581 ], "year": 1965, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0634-01" ] }, { "cite": "491 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "658", "parenthetical": "citing Walsh v. Insurance Co., 265 N.C. 634, 639, 144 S.E.2d 817, 820 (1965)" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797328 ], "year": 1997, "pin_cites": [ { "page": "445", "parenthetical": "citing Walsh v. Insurance Co., 265 N.C. 634, 639, 144 S.E.2d 817, 820 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0442-01" ] }, { "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": 3, "year": 1986, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "343 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525351 ], "year": 1986, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0643-01" ] }, { "cite": "322 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525985 ], "year": 1984, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0592-01" ] } ], "analysis": { "cardinality": 659, "char_count": 12859, "ocr_confidence": 0.77, "pagerank": { "raw": 1.5286619901654718e-07, "percentile": 0.6706782905103734 }, "sha256": "7b0c80cb3602f44b8d623a672de8b007ce0b2fdf7e67eb4727881a0e35fc165a", "simhash": "1:8325d07a26cf864d", "word_count": 2130 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff v. CHRISTOPHER T. GRADY, and JOHN VAN B. METTS, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nPlaintiff Nationwide Mutual Fire Insurance Company filed this declaratory judgment action on 30 August 1996 in Wake County Superior Court. Nationwide filed this action in response to an underlying tort action filed in 1994 in New Hanover County Superior Court, wherein defendant John Van B. Metis, an employee of the North Carolina Department of Revenue, alleged that his immediate supervisor, defendant Christopher T. Grady, committed an \u201cintentional assault and battery\u201d when Grady struck him while walking down a hallway.\nAt the time of the alleged assault and battery, defendant Grady had in effect a homeowner\u2019s insurance policy with Nationwide Mutual Fire Insurance Company. After depositions had been taken in the underlying tort action, Nationwide filed this action seeking a declaration that it does not have a duty to defend or indemnify defendant Grady in the underlying tort action.\nDefendant Metts was served with summons and a copy of Nationwide\u2019s complaint, but did not answer. Nationwide moved for summary judgment, and this motion came on for hearing before Judge Narley L. Cashwell during the 28 April 1997 civil session of Wake County Superior Court. By judgment entered 2 May 1997, Judge Cashwell granted Nationwide\u2019s motion for summary judgment. Defendant Grady appeals.\nDefendant Grady brings forth but one assignment of error on appeal by which he argues that the trial court erred in granting Nationwide\u2019s motion for summary judgment, since there was genuine issue of material fact as to whether Nationwide has a duty to defend Grady in the underlying tort action. For the reasons discussed herein, we disagree, and therefore, affirm the judgment of the trial court.\nA party seeking a declaratory judgment may properly be granted summary judgment \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.R. Civ. P. 56; Boyce v. Mead, 71 N.C. App. 592, 593, 322 S.E.2d 605, 606 (1984). The construction and application of Nationwide\u2019s policy provisions to the facts herein is a question of law, properly committed to the province of the trial judge for a summary judgment determination. Walsh v. National Indemnity Co., 80 N.C. App. 643, 647, 343 S.E.2d 430, 432 (1986).\nAn insurance company has a duty to defend its insured against suit, although the suit is groundless, if viewing the facts as alleged in the complaint and taking them as true, liability may be imposed upon the insured within the coverage of the insurance policy in question. Waste Management of Carolinas Inc. Co. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374, reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986). If \u201cthe 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.\u201d Id. at 691, 340 S.E.2d at 377. However, \u201c[w]here the insurer knows or could reasonably ascertain facts that, if proven, would be covered by its policy, the duty to defend is not dismissed [merely] because the facts alleged in [the] . . . complaint appear to be outside coverage, or within a policy exception to coverage.\u201d Id. (citing 7C J. Appleman, Insurance Law and Practice \u00a7 4683).\nAt all times pertinent, Grady had in effect a Nationwide Homeowner\u2019s Policy which provided coverage as follows:\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 for the occurrence equal our limit of liability.\n\u201cOccurrence\u201d is defined by the policy to mean \u201can accident, including exposure to conditions, which results, during the policy period, in (a) property damage.\u201d The policy also contains the following intentional act exclusion:\n1. Coverage E \u2014 Personal Liability \u2014 and Coverage F \u2014 Medical Payments to Others \u2014 do not apply to bodily injury or property damage:\na. which is expected or intended by the insured;\nb. arising out of business pursuits of an insured ....\nWe note at the outset that \u201c[w]hen the language used is clear and unambiguous, a policy provision will be accorded its plain meaning.\u201d N.C. Farm Bureau Mut. Ins. Co. v. Briley, 127 N.C. App. 442, 445, 491 S.E.2d 656, 658 (1997) (citing Walsh v. Insurance Co., 265 N.C. 634, 639, 144 S.E.2d 817, 820 (1965)). However, when the language of the policy is subject to more than one interpretation, a policy provision should be liberally construed so as to afford coverage whenever possible by reasonable construction. Id. (citing State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986)). While provisions extending coverage will be construed broadly to find coverage, provisions excluding coverage are not favored and will be strictly construed against the insurer and in favor of the insured, again, to find coverage. N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 702, 412 S.E.2d 318, 321 (1992); see also Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991).\nLooking first at the \u201cexpected and intended\u201d exclusion, we note that in order for Grady\u2019s act to be excluded under the \u201cexpected and intended\u201d exclusion of Nationwide\u2019s policy, both the act and the resultant harm must have been intended. Stox, 330 N.C. at 703-04, 412 S.E.2d at 322. The four corners of Metts\u2019 complaint in the underlying tort action allege that Grady \u201cintentionally struck [him] with his hip and right elbow in the area of [his] right lower back . . . causing . . . [him] great pain and [injury],\u201d and that Grady\u2019s actions were \u201cwillful, wanton and malicious.\u201d\nThe evidence adduced by discovery, however, is equivocal in regard to the intent of Grady. Travis M. Wells, David McColl, and Eric Wayne, were deposed and testified that they witnessed the 13 July 1993 incident between Grady and Metts. These witnesses were all of the opinion that the incident was due to inadvertence, or if intentional, done as a joke of some type. Significantly, they noted that Grady was carrying a sheaf of papers, and may have been looking at them while negotiating the hallway. Moreover, all of the witnesses indicated that Grady apologized for the contact, and then continued down the hallway after the incident. Upon impact, Metts did not indicate any pain, but later indicated that Grady \u201cmust have bumped me harder than I thought because I\u2019m getting a headache.\u201d Approximately four or five days after the 13 July 1993 incident, Grady began to complain of lower back pain, and subsequently, went to see a doctor about his complaints.\nFrom these facts, we simply cannot say that as a matter of law, Grady expected or intended the bodily injury allegedly suffered by Metts. Even if the conduct herein may have been alleged to be \u201cintentional\u201d and \u201cwillful, wanton and malicious\u201d in the body of the complaint, the complaint and facts disclosed during discovery tend to create genuine issue of fact as to whether the incident occurred due to some inadvertence, or jocular bumping, without the requisite intent to cause bodily harm.\nThis conclusion, however, is not dispositive of whether Nationwide has a duty to defend Grady in the underlying tort action. We must also look to the \u201cbusiness pursuits\u201d exclusion, which provides that the homeowner\u2019s policy will not apply to bodily injury \u201carising out of or in connection with a business engaged in by an insured.\u201d The policy further notes, \u201c[t]his exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.\u201d \u201cBusiness\u201d is defined in the policy to include \u201ctrade, profession, or occupation.\u201d The phrases \u201carising out of\u201d and \u201cin connection with\u201d are not defined and, thus, we must give these phrases their ordinary meanings. Durham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C. App. 152, 156, 426 S.E.2d 451, 453 (1993) (quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)).\nThis Court analyzed the meaning of \u201carising out of\u2019 and \u201cin connection with\u201d in Nationwide Mutual Fire Ins. Co. v. Nunn, 114 N.C. App. 604, 442 S.E.2d 340 (1994). Therein, the Court referred to State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 350 S.E.2d 66 (1986). In State Capital, the Court found the phrase \u201carising out of\u2019 to be ambiguous. 318 N.C. at 547, 350 S.E.2d at 73-74. Moreover, the Court in Nunn noted that \u201cin order to exclude coverage under the policy, \u2018the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury.\u2019 \u201d 114 N.C. App. at 607, 442 S.E.2d at 343 (quoting State Capital, 318 N.C. at 546, 350 S.E.2d at 73). In Nunn, because the defendant\u2019s claim may have arisen out of the insured\u2019s business operation or the negligent supervision of insured\u2019s dog, which was not linked in any way to the business, the Court determined that coverage was not excluded under the \u201carising out of\u2019 clause. Id.\nThe Court went on the examine the phrase \u201cin connection with,\u201d determining that the phase has a \u201cmuch broader meaning\u201d than the phrase \u201carising out of.\u201d Id. The phrase was found to be plain and unambiguous. Id. at 608, 442 S.E.2d at 343 (citing Nationwide Mut. Ins. Co. v. Prevatte, 108 N.C. App. 152, 423 S.E.2d 90 (1992), disc. review denied, 333 N.C. 463, 428 S.E.2d 184 (1993)). As such, the Court concluded that \u201cgiven the broad definition of \u2018in connection with,\u2019 all of the possible proximate causes of [the defendant\u2019s] injury were in connection with the [insured\u2019s] business because [the defendant\u2019s] very presence on the premises was in connection with the business.\u201d Id. at 609, 442 S.E.2d at 344.\nHerein, we hold similarly, because while there may be some proximate causes of the 13 July 1993 incident that may not have \u201carisen out of\u2019 Grady\u2019s employment as an auditor with the North Carolina Department of Revenue, all of these proximate causes of Metts\u2019 injury were because of Grady\u2019s business pursuits. Indeed, but for his job with the Revenue Department, Grady and Metts would not have been on the premises of the Revenue Department and the tort claim would not have arisen. Grady\u2019s argument to the contrary fails.\nIn conclusion, because the 13 July 1993 incident falls within the \u201cbusiness pursuits\u201d exclusion of the Nationwide policy, Nationwide has no duty to defend Grady in the underlying tort action. Accordingly, we affirm the judgment of the trial court.\nAffirm.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Bailey & Dixon, L.L.P., by David S. Coats, for plaintiff - appellee.", "Thompson & Smyth, L.L.P., by Theodore B. Smyth, for defendant-appellant Christopher T. Grady.", "No brief filed by defendant-appellee John Van B. Metis." ], "corrections": "", "head_matter": "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff v. CHRISTOPHER T. GRADY, and JOHN VAN B. METTS, Defendants\nNo. COA97-883\n(Filed 21 July 1998)\n1. Insurance\u2014 coverage \u2014 assault and battery \u2014 walking down hallway\nThere was a genuine issue of fact in a declaratory judgment action to determine insurance coverage arising from a civil assault and battery claim in which defendant Grady contended that defendant Metts struck him while walking down a hallway. The complaint and facts disclosed during discovery tend to create an issue as to whether the incident occurred due to some inadvertence or jocular bumping without the requisite intent to cause bodily harm.\n2. Insurance\u2014 coverage \u2014 business pursuits exclusion\nThe trial court correctly granted summary judgment for plaintiff Nationwide in a declaratory judgment action to determine whether Nationwide has a duty to defend Grady in an underlying civil assault action arising from a bumping in a hallway. At the time of the incident, defendant Grady had a homeowner\u2019s insurance policy with a \u201cbusiness pursuits\u201d exclusion and all of the proximate causes of the injury were because of defendant Grady\u2019s business pursuits. But for his job with the Revenue Department, defendants Grady and Metis would not have been on the premises and the tort claim would not have arisen.\nAppeal by defendant Grady from judgment entered 2 May 1997 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 17 March 1998.\nBailey & Dixon, L.L.P., by David S. Coats, for plaintiff - appellee.\nThompson & Smyth, L.L.P., by Theodore B. Smyth, for defendant-appellant Christopher T. Grady.\nNo brief filed by defendant-appellee John Van B. Metis." }, "file_name": "0292-01", "first_page_order": 324, "last_page_order": 330 }