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  "name": "SUZETTE ALEXIS DUTCH, Executrix of the Estate of EDWARD MALCOLM DUTCH, Deceased, Plaintiff v. HARLEYSVILLE MUTUAL INSURANCE COMPANY and USAA GENERAL INDEMNITY COMPANY, Defendants",
  "name_abbreviation": "Dutch v. Harleysville Mutual Insurance",
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      "SUZETTE ALEXIS DUTCH, Executrix of the Estate of EDWARD MALCOLM DUTCH, Deceased, Plaintiff v. HARLEYSVILLE MUTUAL INSURANCE COMPANY and USAA GENERAL INDEMNITY COMPANY, Defendants"
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        "text": "JOHN, Judge.\nDefendant USAA General Indemnity Company (USAA) appeals the trial court\u2019s declaratory judgment ruling that a policy of insurance issued by USAA (the USAA policy) provided underinsured motorists (UIM) coverage to Edward Malcolm Dutch (Dutch). We affirm.\nThe parties stipulated to the following pertinent facts: On 17 February 1995, Dutch was operating an automobile titled in the name of Dwayne Taylor and owned by Marvin F. Bullock d/b/a Laurel Hill Auto Sales (the Bullock vehicle), with the permission of the latter. While Dutch was driving, the Bullock vehicle skidded off the road and into a ditch.\nDutch walked to the nearby residence of Howard Dean Clark (Clark) to solicit help in removing the Bullock vehicle from the ditch. Clark thereupon drove himself and Dutch in Clark\u2019s automobile (the Clark vehicle) to the location of the Bullock vehicle. Clark parked on the road, partially in the northbound lane of travel and partially in the southbound lane of travel, and left the engine running with both the lights and emergency flashers activated as he and Dutch exited.\nDutch hooked a chain to the rear of the Bullock vehicle and crawled under the Clark vehicle to attach the other end of the chain. As he was doing so, and although Clark attempted to warn the driver of the obstruction in the road, an automobile operated by Michael Fairley (Fairley; the Fairley vehicle) collided with both the Bullock and Clark vehicles and ran over Dutch, resulting in his death.\nAt the time of the accident, the Bullock vehicle was insured under a policy of insurance issued by defendant Harleysville Mutual Insurance Company (Harleysville; the Harleysville policy), which included UIM coverage with liability limits of $50,000.00 per person. The Clark vehicle was insured under the USAA policy which provided UIM coverage limits of $300,000.00 per person.\nPlaintiff Suzette Alexis Dutch, executrix of Dutch\u2019s estate, filed suit against Fairley alleging his negligence proximately caused Dutch\u2019s death. Pursuant to N.C.G.S. \u00a7 20-279.21(b)(4) (1999), plaintiff gave notice of suit to USAA, Harleysville, and Metropolitan Property & Casualty Insurance Company (Metropolitan), the company which insured Fairley\u2019s vehicle. Upon order of the court, Metropolitan was allowed to pay $50,000.00, the limits of the bodily injury coverage under its policy with Fairley, to plaintiff, and was relieved of further liability.\nWhile her suit against Fairley was pending, plaintiff also filed the instant declaratory judgment action against Harleysville and USAA, seeking a ruling that the policies of each covering the Bullock and Clark vehicles provided UIM coverage to Dutch. Harleysville and USAA answered, generally denying their policies provided such coverage.\nThe trial court entered judgment 16 March 1999, concluding that (1) both the Harleysville and USAA policies provided UIM coverage to Dutch; (2) the Harleysville policy was the \u201cprimary\u201d policy and the USAA policy the \u201cexcess\u201d policy; (3) Harleysville, as the primary policy carrier, was entitled to credit for the $50,000.00 payment by Metropolitan; and, (4) \u201cafter the credit, [Harleysville] provide[d] no coverage for [Dutch] for this accident.\u201d Essentially, the trial court\u2019s judgment rendered USAA solely liable for damages in excess of $50,000.00 and up to its policy limits of $300,000.00 which might be awarded plaintiff in her action against Fairley.\nUSAA timely appealed, citing two assignments of error. USAA first claims the trial court erred by concluding as a matter of law that Dutch was insured under UIM provisions of the USAA policy. Alternatively, USAA argues that if Dutch indeed was covered by its policy, then USAA was entitled to share in the $50,000.00 Metropolitan payment credit. We address each contention ad seriatim.\nWe first examine the USAA policy, bearing in mind that\nprovisions of insurance policies and compulsory insurance statutes which extend coverage must be construed liberally so as to provide coverage, whenever possible by reasonable construction.\nState Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986). USAA does not dispute that its policy contained UIM coverage, but argues Dutch was not an insured for purposes of the policy, which defined an \u201cinsured\u201d as:\n1. You or any family member.\n2. Any other person occupying:\na. your covered auto; or\nb. any other auto operated by you.\n3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person listed in 1. or 2. above.\n\u201cYou\u201d referred to the \u201cnamed insured,\u201d in this case Clark.\nThe parties have stipulated that Dutch was not a family member of Clark. Thus, Dutch was an insured under the USAA policy definition only if he was \u201coccupying\u201d Clark\u2019s covered auto. USAA points out that Dutch \u201chad departed the Clark vehicle\u201d to return to the Bullock vehicle.\nHowever, the USAA policy defined \u201c [occupying\u201d as \u201cin; upon; getting in, on, out or off.\u201d Although we agree Dutch was not \u201cin\u201d or \u201cgetting in,... out or off\u201d the Clark vehicle at the time of the accident, we must consider whether he either was \u201cgetting . . . on\u201d or was actually \u201cupon\u201d the Clark vehicle at the moment of impact. \u201cUpon\u201d is defined as \u201c[o]n,\u201d while \u201con\u201d is defined as \u201c[u]sed to indicate contact with\u201d or \u201c[u]sed to indicate actual motion toward.\u201d American Heritage College Dictionary 1482, 953 (3d ed. 1997).\nThe parties stipulated Dutch had\ncrawl[ed] under the rear portion of the Clark vehicle in order to attach the other end of the chain to the Clark vehicle ....\nAt the time of the accident, therefore, Dutch was either in contact with the Clark vehicle while attaching the chain and thus \u201cupon\u201d the vehicle, or was in the process of attaching the chain and thus was \u201cgetting . . . on\u201d the Clark vehicle. In short, Dutch qualified as an \u201cinsured\u201d under the USAA policy definition.\nWe note also that the Motor Vehicle Safety and Financial Responsibility Act (the Act), N.C.G.S. \u00a7\u00a7 20-279.1 \u2014 279.39, the provisions of which \u201care written into every automobile insurance policy,\u201d Scales v. State Farm Mut. Automobile Ins. Co., 119 N.C. App. 787, 788, 460 S.E.2d 201, 202 (1995), defines \u201cpersons insured\u201d as\nthe named insured and, while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in the motor vehicle to which the policy applies or the personal representative of any of the above ....\nN.C.G.S. \u00a7 20-279.21(b)(3) (1999); see Brown v. Truck Ins. Exchange, 103 N.C. App. 59, 62, 404 S.E.2d 172, 174 (the UIM statute, G.S. \u00a7 20-279.21(b)(4), \u201cincorporates by reference the definition of \u2018persons insured\u2019 that is found in\u201d G.S. \u00a7 20-279.21(b)(3)), disc. review denied, 329 N.C. 786, 408 S.E.2d 515 (1991). Accordingly, although Dutch was not the named insured nor a member of the named insured\u2019s household, he would qualify as a \u201cperson insured\u201d under the Act for purposes of the USAA policy if he \u201cwas \u2018using\u2019 the [insured] vehicle at the time of the accident.\u201d Falls v. N.C. Farm Bureau Mut. Ins. Co., 114 N.C. App. 203, 207, 441 S.E.2d 583, 585, disc. review denied, 337 N.C. 691, 448 S.E.2d 521 (1994).\nIn the context of the interpretation of policies of insurance, this Court has \u201cadopted the ordinary meaning of the word \u2018use,\u2019 \u201d Nationwide Mutual Ins. Co. v. Davis, 118 N.C. App. 494, 497, 455 S.E.2d 892, 894, disc. review denied, 341 N.C. 420, 461 S.E.2d 759 (1995); that is,\n\u201cto put into action or service[,] ... to carry out a purpose or action by means of[, or] . . . [to] make instrumental to an end or process . . . .\u201d Webster\u2019s Third New International Dictionary 2523-24 (1968). ... [T]he verb \u201cuse\u201d \u201cis general and indicates any putting to service of a thing . ...\u201d Id. at 2524.\nLeonard v. N.C. Farm Bureau Mut. Ins. Co., 104 N.C. App. 665, 671, 411 S.E.2d 178, 181-82 (1991), rev\u2019d on other grounds, 332 N.C. 656, 423 S.E.2d 71 (1992). Further, while\nthe test for determining whether an automobile liability policy provides coverage for an accident is not whether the automobile was a proximate cause of the accident[, . . . there must be] a causal connection between the use of the automobile and the accident.\nState Capital Ins., 318 N.C. at 539-40, 350 S.E.2d at 69.\nIn addition, review of applicable decisions reflects that our courts \u201chave recognized that liberally construed, the term \u2018use\u2019 may refer to more than the actual driving or operation of a vehicle.\u201d Davis, 118 N.C. App. at 497, 455 S.E.2d at 894. Thus a person \u201cuses\u201d a vehicle under the Act when (1) loading or unloading the vehicle, Casualty Co. v. Insurance Co., 16 N.C. App. 194, 199, 192 S.E.2d 113, 118, cert. denied, 282 N.C. 425, 192 S.E.2d 840 (1972); (2) pushing a disabled vehicle onto the shoulder of the road, Whisnant v. Insurance Co., 264 N.C. 303, 308, 141 S.E.2d 502, 506 (1965); (3) helping the vehicle owner change a flat tire, Leonard, 104 N.C. App. at 672, 411 S.E.2d at 182; and, (4) walking on the shoulder of the road in search of help for a disabled vehicle, Falls, 114 N.C. App. at 208, 441 S.E.2d at 585. Further, a police officer who leaves his vehicle with the engine running, the warning lights activated, and the police radio engaged, in order to direct traffic at the location of a malfunctioning traffic signal, is also \u201cusing\u201d his vehicle for purposes of the Act. Maring v. Hartford Casualty Ins. Co., 126 N.C. App. 201, 205, 484 S.E.2d 417, 420 (1997).\nLiberally construing \u201cuse\u201d and guided by previous decisions, we conclude that under the circumstances sub judice Dutch was \u201cusing\u201d the Clark vehicle for purposes of the Act, in that he was \u201c \u2018put[ting the Clark vehicle] into action or service ... to carry out a purpose,\u2019 \u201d Leonard, 104 N.C. App. at 671, 411 S.E.2d at 181, i.e., removal of the Bullock vehicle from the ditch. Moreover, as in Maring, 126 N.C. App. at 205, 484 S.E.2d at 420, the emergency lights on the Clark vehicle had been activated such that Clark and Dutch were also \u201cusing\u201d the vehicle to alert passing motorists to the obstruction in the road. Finally, the requisite causal connection between \u201cuse\u201d of the Clark vehicle and the accident, see State Capital Ins., 318 N.C. at 540, 350 S.E.2d at 69, was also satisfied in that the Clark vehicle, partially located in Fairley\u2019s lane of travel, was struck by the Fairley vehicle as it also collided with the Bullock vehicle and ran over Dutch. In short, Dutch not only qualified as an insured under the express terms of the USAA policy, but also under terms of the Act incorporated by reference into such policy. See Brown, 103 N.C. App. at 62, 404 S.E.2d at 174.\nNotwithstanding, USAA argues strenuously that Dutch \u201c[wa]s a Class Two insured who is an insured only while occupying an insured vehicle.\u201d USAA misreads our case law.\nG.S. \u00a7 20-279.21(b)(3)\nestablishes two \u201cclasses\u201d of \u201cpersons insured\u201d: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle.\nCrowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 554, 340 S.E.2d 127, 129-30, disc. review denied, 316 N.C. 731, 345 S.E.2d 387 (1986). It is not disputed that Dutch fell into the second category.\nHowever, rather than restricting Class II \u201cpersons insured,\u201d id., to UIM coverage only if actually occupying a vehicle as USAA suggests, our case law makes clear such individuals may recover\nonly when the insured vehicle is involved in the insured\u2019s injuries,\nSmith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47 (1991).\nThe foregoing requirement is broadly construed; a Class II insured walking from a disabled vehicle to summon help has been deemed a \u201cperson insured\u201d under the statute. See Falls, 114 N.C. App. at 208, 441 S.E.2d at 585. Moreover, given that the Fairley vehicle ran over Dutch as it was colliding with the Clark vehicle, the insured vehicle was involved in Dutch\u2019s injuries. See State Capital Ins., 318 N.C. at 540, 350 S.E.2d at 69. In sum, USAA\u2019s first assignment of error is unfounded.\nBefore proceeding, we briefly address the argument interjected by Harleysville that its policy \u201cdoes not provide UIM benefits because Harleysville\u2019s UIM coverage is not in excess of the Fairley vehicle\u2019s liability coverage,\u201d and because plaintiff should not be allowed to \u201cstack\u201d the USAA and Harleysville policies. In this context, we note Harleysville registered no appeal of the trial court\u2019s judgment and failed to assign error to any portion thereof. The foregoing issue raised by Harleysville thus has not been preserved for appellate review. See N.C.R. App. P. 10(a) (\u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal\u201d). We are therefore bound by the trial court\u2019s express holding that both the USAA and Harleysville policies provided UIM coverage to Dutch, as well as by its implied holding that these policies may be stacked.\nIn its second assignment of error, USAA claims the trial court erroneously credited the $50,000.00 paid by Metropolitan solely to Harleysville. USAA argues that \u201cmultiple UIM carriers are to share the credit pro rata.\u201d The trial court based its decision upon the determination that the Harleysville policy was \u201cprimary\u201d and the USAA policy was \u201cexcess.\u201d\nHarleysville asserts USAA has failed to preserve this issue for review in that USAA did not specifically assign error to the foregoing portion of the trial court\u2019s judgment. See N.C.R. App. P. 10(a). We agree.\nOur review reveals that neither in USAA\u2019s assignments of error nor in its appellate brief does it challenge the trial court\u2019s characterization of the respective status of the two providers. USAA has thus waived assertion of that argument on appeal, and we presume the court\u2019s findings and conclusions on the issue are correct. See Saxon v. Smith, 125 N.C. App. 163, 169, 479 S.E.2d 788, 792 (1997).\nIt is well established that \u201cthe primary provider of UIM coverage ... is entitled to the credit for the liability coverage.\u201d Falls, 114 N.C. App. at 208, 441 S.E.2d at 586. In light of the trial court\u2019s unchallenged determination of Harleysville as primary provider and USAA as excess, the entire credit was properly allocated to Harleysville, and USAA\u2019s final assignment of error is unavailing.\nAffirmed.\nJudges LEWIS and EDMUNDS concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Gordon, Home & Hicks, P.A., by Charles L. Hicks, Jr., for plaintiff-appellee.",
      "McDaniel, Anderson & Stephenson, L.L.P., by William E. Anderson and John M. Kirby, for defendant-appellee Harleysville Mutual Insurance Company.",
      "Everett L. Henry, for defendant-appellant USAA General Indemnity Company."
    ],
    "corrections": "",
    "head_matter": "SUZETTE ALEXIS DUTCH, Executrix of the Estate of EDWARD MALCOLM DUTCH, Deceased, Plaintiff v. HARLEYSVILLE MUTUAL INSURANCE COMPANY and USAA GENERAL INDEMNITY COMPANY, Defendants\nNo. COA99-667\n(Filed 15 August 2000)\n1. Insurance\u2014 automobile \u2014 UIM coverage \u2014 person under parked car at time of collision \u2014 person insured\nThe trial court did not err by concluding that the decedent (Dutch) was insured under the UIM provisions of a USAA policy where the vehicle Dutch was driving (the Bullock vehicle, insured by Harleysville) skidded into a ditch; Dutch solicited help from a nearby residence and Clark drove his vehicle (insured by USAA) to the scene, where he parked on the road while Dutch hooked a chain to the vehicle he was driving and crawled under the Clark vehicle to attach the other end of the chain; and a vehicle driven by Fairley collided with both the Bullock and Clark vehicles and ran over Dutch, causing his death. Under the USAA policy definitions, Dutch was either in contact with the Clark vehicle or in the process of attaching the chain and was thus \u201cupon\u201d or \u201cgetting on\u201d the vehicle. Moreover, he would qualify as the \u201cperson insured\u201d under the Motor Vehicle Safety and Financial Responsibility Act if he was \u201cusing\u201d the vehicle at the time of the accident. Finally, although USAA contends that Dutch was a Class Two insured who is insured only while occupying an insured vehicle, case law makes clear that Class II persons insured may recover when the insured vehicle is involved in the insured\u2019s injuries.\n2. Appeal and Error\u2014 presentation of issues \u2014 failure to assign error challenge in brief\nThe question of whether the trial court erred by crediting an amount paid by a tortfeasor solely to Harleysville rather than sharing the credit upon the multiple UIM carriers was not preserved for appellate review where appellant (USAA) did not assign error to nor challenge in its brief the court\u2019s characterization of the Harleysville policy as primary and the USAA policy as excess. It is well established that the primary provider of UIM coverage is entitled to the credit for the liability coverage.\nAppeal by defendant USAA General Indemnity Company from judgment entered 16 March 1999 by Judge Dexter Brooks in Scotland County Superior Court. Heard in the Court of Appeals 13 March 2000.\nGordon, Home & Hicks, P.A., by Charles L. Hicks, Jr., for plaintiff-appellee.\nMcDaniel, Anderson & Stephenson, L.L.P., by William E. Anderson and John M. Kirby, for defendant-appellee Harleysville Mutual Insurance Company.\nEverett L. Henry, for defendant-appellant USAA General Indemnity Company."
  },
  "file_name": "0602-01",
  "first_page_order": 634,
  "last_page_order": 642
}
