{ "id": 11216343, "name": "ALINE JOAN IODICE, JAMES V. IODICE and MARY J. IODICE, Plaintiffs v. THOMAS RICHARD JONES, Defendant", "name_abbreviation": "Iodice v. Jones", "decision_date": "1999-04-20", "docket_number": "No. COA98-770", "first_page": "76", "last_page": "79", "citations": [ { "type": "official", "cite": "133 N.C. App. 76" } ], "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": "423 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "332 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503422 ], "year": 1992, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0633-01" ] }, { "cite": "492 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551170, 551396, 551186, 551322, 551231 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0138-04", "/nc/347/0138-02", "/nc/347/0138-05", "/nc/347/0138-01", "/nc/347/0138-03" ] }, { "cite": "483 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "458-59" }, { "page": "458", "parenthetical": "\"All persons in the first class are treated the same for insurance purposes.\"" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708377 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "51-52" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0042-01" ] }, { "cite": "448 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549352, 2550922, 2550897, 2550744, 2552156 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0691-03", "/nc/337/0691-05", "/nc/337/0691-04", "/nc/337/0691-02", "/nc/337/0691-01" ] }, { "cite": "441 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527361 ], "year": 1994, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0203-01" ] }, { "cite": "462 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793222, 793228, 793200, 793113, 793182 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0651-02", "/nc/341/0651-01", "/nc/341/0651-04", "/nc/341/0651-03", "/nc/341/0651-05" ] }, { "cite": "456 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "884" }, { "page": "885" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920692 ], "weight": 3, "pin_cites": [ { "page": "690" }, { "page": "691" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0686-01" ] }, { "cite": "369 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525226 ], "year": 1988, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0507-01" ] } ], "analysis": { "cardinality": 404, "char_count": 9321, "ocr_confidence": 0.779, "pagerank": { "raw": 1.5083100243429398e-07, "percentile": 0.6669313539129115 }, "sha256": "32861111308077e0885a7b0b306dee3adb97642a1285f8b170ae49ed5d30d185", "simhash": "1:bba816760cdebf5c", "word_count": 1495 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and HORTON concur." ], "parties": [ "ALINE JOAN IODICE, JAMES V. IODICE and MARY J. IODICE, Plaintiffs v. THOMAS RICHARD JONES, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nNationwide Insurance Company (Nationwide) appeals from the trial court\u2019s declaratory judgment ordering Nationwide and Government Employees Insurance Company (GEICO) to \u201cshare the $62,500 set off credit. . . pro rata in proportion to their respective limits of underinsured motorist [(UIM)] coverage.\u201d\nThe facts of this case are not in dispute. Aline Joan Iodice (Iodice) was injured in an automobile accident while riding as a passenger in a vehicle driven by Fiona Margaret Penney (Fiona) and owned by Robert A. Penney (Penney). All parties agree that Thomas Richard Jones (Jones), the driver of the other vehicle involved in the accident, was at fault. Liability insurance for Jones\u2019s vehicle was provided by Integon Insurance Company (Integon). Iodice settled her claim against Jones for $62,500.00, which amount was paid by Integon pursuant to Jones\u2019s policy. Iodice\u2019s damages exceed the $62,500.00 received from Integon.\nAt the time of the accident, the Penney vehicle was insured by Nationwide under a policy issued to Penney and listing Fiona as an authorized driver. Nationwide\u2019s policy provided UIM coverage up to $100,000.00 per person and $300,000.00 per accident for Iodice, as a \u201cperson occupying\u201d the Penney vehicle. Iodice was also covered under her mother\u2019s GEICO insurance policy, as a \u201cfamily member\u201d of the named insured. The GEICO policy likewise provided UIM coverage up to $100,000.00 per person and $300,000.00 per accident. Both the GEICO policy and the Nationwide policy contain the following \u201cother insurance\u201d paragraph:\n[I]f there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\n\u201cYou\u201d is defined, in both policies, as the named insured and spouse.\nGEICO filed a motion for declaratory judgment seeking a judicial determination of the proper allocation of the $62,500.00 set-off credit (arising from Integon\u2019s payment to Iodice) against the UIM amounts owed to Iodice by GEICO and Nationwide. The trial court ordered GEICO and Nationwide to share the $62,500.00 set-off credit pro rata in proportion to their respective limits of UIM coverage, entitling GEICO and Nationwide to set off any UIM amounts respectively owed by $31,250.00 each. Nationwide appeals, contending it is entitled to set off the entire $62,500.00 against any UIM amount it owes.\nThe only question presented for our review is whether Nationwide is entitled to the entire $62,500.00 set-off credit.\nWhere it is impossible to determine which policy provides primary coverage due to identical \u201cexcess\u201d clauses, \u201cthe clauses are deemed mutually repugnant and neither . .. will be given effect.\u201d N.C. Farm Bureau Mut. Ins. Co. v. Hilliard, 90 N.C. App. 507, 511, 369 S.E.2d 386, 388 (1988); Onley v. Nationwide Mutual Ins. Co., 118 N.C. App. 686, 690, 456 S.E.2d 882, 884 (\u201c[W]e read the policies as if [mutually repugnant excess] clauses were not present.\u201d), disc. review denied, 341 N.C. 651, 462 S.E.2d 514 (1995).\nIn this case, the \u201cexcess\u201d clause of the \u201cother insurance\u201d paragraph in each policy provides: \u201c[A]ny insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\u201d If we deem these clauses mutually repugnant and read the policies as if neither \u201cexcess\u201d clause is present, the remaining language of the \u201cother insurance\u201d paragraph in each policy provides that Nationwide and GEICO must each \u201cpay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.\u201d Accordingly, if the identically worded \u201cexcess\u201d clauses in the Nationwide and GEICO policies prevent a determination of which policy provides primary UIM coverage, a pro rata allocation of UIM coverage and credit from the Integon payment is appropriate.\nNationwide contends, however, that the \u201cother insurance\u201d clauses in this case, although identically worded, do not have identical meanings and are therefore not mutually repugnant. We agree. Because \u201cyou\u201d is expressly defined as the named insured and spouse, the Nationwide \u201cexcess\u201d clause reads: \u201c[A]ny insurance we provide with respect to a vehicle [Penney] do[es] not own shall be excess over any other collectible insurance.\u201d It follows that Nationwide\u2019s UIM coverage is not \u201cexcess\u201d over other collectible insurance (and is, therefore, primary), because the vehicle in which the accident occurred is owned by Penney. The GEICO \u201cexcess\u201d clause reads: \u201c[A]ny insurance we provide with respect to a vehicle [Iodice\u2019s mother] do[es] not own shall be excess over any other collectible insurance.\u201d It follows that GEICO\u2019s UIM coverage is \u201cexcess\u201d (and is, therefore, secondary), because the vehicle in which the accident occurred is not owned by Iodice\u2019s mother. Accordingly, Nationwide provides primary UIM coverage in this case. As such, Nationwide is entitled to set off the entire $62,500.00 against any UIM amounts it owes Iodice, because \u201cthe primary provider of UIM coverage ... is entitled to the credit for the liability coverage. The excess UIM coverage providers still get the benefit of the credit for the coverage because their UIM coverage does not apply until the liability coverage and the primary UIM coverage are exhausted.\u201d Falls v. N.C. Farm Bureau Mut. Ins. Co., 114 N.C. App. 203, 208, 441 S.E.2d 583, 586, disc. review denied, 337 N.C. 691, 448 S.E.2d 521 (1994). We have stated that \u201cto share the liability in proportion to the coverage but not the credit in a like manner is irrational.\u201d Onley, 118 N.C. App. at 691, 456 S.E.2d at 885. It would likewise be irrational to impose primary liability for UIM coverage on an insurer without applying the set-off credit \u201cin a like manner.\u201d Accordingly, Nationwide, the primary UIM provider, is entitled to set off the full $62,500.00 paid by Integon against any UIM amounts it owes Iodice.\nReversed and remanded.\nJudges LEWIS and HORTON concur.\n. Both Nationwide and GEICO are unnamed defendants in this action.\n. UIM carriers are entitled to set off the amount received by a claimant from the tortfeasor\u2019s liability carrier against any UIM amounts owed. Onley v. Nationwide Mutual Ins. Co., 118 N.C. App. 686, 690, 456 S.E.2d 882, 885, disc. review denied, 341 N.C. 651, 462 S.E.2d 514 (1995).\n. The holding in N.C. Farm Bureau Mut. Ins. Co. v. Bost, 126 N.C. App. 42, 51-52, 483 S.E.2d 452, 458-59, disc. review denied, 347 N.C. 138, 492 S.E.2d 25 (1997), is distinguishable and thus is not determinative of this ease. Bost required a pro rata division of the set-off credit where the \u201cother insurance\u201d clauses were identically worded, in part because the plaintiff therein was a Class I insured under both policies. Bost, 126 N.C. App. at 52, 483 S.E.2d at 458 (\u201cAll persons in the first class are treated the same for insurance purposes.\u201d). In this case, Iodice is a Class II insured under the Nationwide policy (as a guest of the named insured) and a Class I insured under the GEICO policy (as a relative of the named insured). A Class II insured may be treated differently than a Class I insured. See, e.g., Nationwide Mutual Ins. Co. v. Silverman, 332 N.C. 633, 638, 423 S.E.2d 68, 71 (1992).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Teague, Rotenstreich & Stanaland, L.L.P., by Kenneth B. Rotenstreich and Ian J. Drake, for unnamed defendant-appellant Nationwide Mutual Insurance Company.", "Womble Carlyle Sandridge & Rice, PLLC, by Allen R. Gitter and Jack M. Strauch, for unnamed defendant-appellee Government Employees Insurance Company.", "No brief filed for plaintiffs or for named defendant." ], "corrections": "", "head_matter": "ALINE JOAN IODICE, JAMES V. IODICE and MARY J. IODICE, Plaintiffs v. THOMAS RICHARD JONES, Defendant\nNo. COA98-770\n(Filed 20 April 1999)\nInsurance\u2014 automobile \u2014 UIM\u2014allocation of liability settlement \u2014 primary and excess carriers\nThe trial court erred in a declaratory judgment action to determine the allocation of a set-off between UIM carriers where plaintiff was injured while riding in a vehicle owned by Robert Penny; the other vehicle was at fault and the liability carrier settled for $62,500; plaintiff\u2019s damages exceeded the settlement; the carriers of the Penny vehicle (Nationwide) and a family member policy which covered plaintiff (Geico) each sought UIM credit for the settlement; and the trial court ordered that the set-off be shared pro rata to their respective UIM limits ($31,250 each). The \u201cother insurance\u201d clauses in each policy are identically worded, but do not have identical meanings. Because the vehicle in which the accident occurred is owned by Penny, it follows from the wording of the clause that Nationwide\u2019s UIM coverage is primary and Geico\u2019s coverage is excess. Nationwide is entitled to set-off the entire $62,500 settlement because the primary provider is entitled to the credit for the liability coverage; however, the excess UIM coverage does not apply until the liability coverage and the primary UIM coverage are exhausted.\nAppeal by unnamed defendant, Nationwide Mutual Insurance Company, from judgment filed 20 April 1998 by Judge Melzer A. Morgan, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 16 March 1999.\nTeague, Rotenstreich & Stanaland, L.L.P., by Kenneth B. Rotenstreich and Ian J. Drake, for unnamed defendant-appellant Nationwide Mutual Insurance Company.\nWomble Carlyle Sandridge & Rice, PLLC, by Allen R. Gitter and Jack M. Strauch, for unnamed defendant-appellee Government Employees Insurance Company.\nNo brief filed for plaintiffs or for named defendant." }, "file_name": "0076-01", "first_page_order": 106, "last_page_order": 109 }