{ "id": 12122941, "name": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. CARL R. PERKINSON, Executor of the Estate of Milton Perkinson, CARL R. PERKINSON, Executor of the Estate of Mary Perkinson, LEON PERKINSON, BESS PERKINSON, LINDA ROBERTS, Administratrix of the Estate of Tommy Roberts, AUTO OWNERS MUTUAL INSURANCE COMPANY, KEMPER INSURANCE COMPANY, aka Lumbermen's Mutual Casualty Company, STATE CAPITAL INSURANCE COMPANY, MARY BREEDEN and BILLY BREEDEN, Defendants", "name_abbreviation": "North Carolina Farm Bureau Mutual Insurance Co. v. Perkinson", "decision_date": "2000-09-19", "docket_number": "No. COA99-1097", "first_page": "140", "last_page": "145", "citations": [ { "type": "official", "cite": "140 N.C. App. 140" } ], "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": "462 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "654", "parenthetical": "policy exclusion prevented wife of named insured from UM coverage where insured vehicle was not involved in accident" }, { "page": "652" } ], "opinion_index": 0 }, { "cite": "341 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 6057222 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "682-83" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0678-01" ] }, { "cite": "467 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "43", "parenthetical": "policy exclusion prevented wife and daughter of named insured from UIM coverage where insured vehicle was not involved in accident" }, { "page": "42" } ], "opinion_index": 0 }, { "cite": "342 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795937 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "496" }, { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0482-01" ] }, { "cite": "250 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "253", "parenthetical": "\"If the language of a statute is free from ambiguity and expresses a single, definite, and sensible meaning, judicial interpretation is unnecessary and the plain meaning of the statute controls.\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566069 ], "year": 1979, "pin_cites": [ { "page": "361", "parenthetical": "\"If the language of a statute is free from ambiguity and expresses a single, definite, and sensible meaning, judicial interpretation is unnecessary and the plain meaning of the statute controls.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0357-01" ] }, { "cite": "72 S.E. 354", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "156 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "year": 1911, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0 }, { "cite": "382 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "year": 1989, "pin_cites": [ { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "403 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537537, 2539785, 2542308, 2540999 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0577-01", "/nc/328/0577-02", "/nc/328/0577-03", "/nc/328/0577-04" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "year": 1991, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(3)" } ], "opinion_index": 0 }, { "cite": "238 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "604", "parenthetical": "stating when the terms of the statute and the policy conflict, the statute prevails" } ], "opinion_index": 0 }, { "cite": "293 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565135 ], "year": 1977, "pin_cites": [ { "page": "441", "parenthetical": "stating when the terms of the statute and the policy conflict, the statute prevails" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0431-01" ] }, { "cite": "494 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0410-01", "/nc/347/0410-04", "/nc/347/0410-05", "/nc/347/0410-02", "/nc/347/0410-03" ] }, { "cite": "488 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794464 ], "year": 1997, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0260-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20-279.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 513, "char_count": 11909, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24560949306310909 }, "sha256": "42e4d1f351b2fae97dfb90ebf77af24184545c50f4c7310b22ddd1734556b21f", "simhash": "1:08299066a23f97d0", "word_count": 1946 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. CARL R. PERKINSON, Executor of the Estate of Milton Perkinson, CARL R. PERKINSON, Executor of the Estate of Mary Perkinson, LEON PERKINSON, BESS PERKINSON, LINDA ROBERTS, Administratrix of the Estate of Tommy Roberts, AUTO OWNERS MUTUAL INSURANCE COMPANY, KEMPER INSURANCE COMPANY, aka Lumbermen\u2019s Mutual Casualty Company, STATE CAPITAL INSURANCE COMPANY, MARY BREEDEN and BILLY BREEDEN, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 20 July 1997, an automobile driven by defendant Billy Breeden struck an automobile owned by defendant Bess Perkinson and being driven by her husband, defendant Leon Perkinson. At the time of the accident there were three other passengers in the automobile driven by defendant Leon Perkinson: (1) Bess Perkinson, (2) Milton Perkinson and his wife, (3) Mary. Milton and Mary Perkinson died in the accident; their respective estates are named as defendants in this action. For the purpose of summary judgment, the parties stipulated that defendant Billy Breeden\u2019s negligence was the sole proximate cause of the accident.\nDefendant Billy Breeden was insured by plaintiff North Carolina Farm Bureau Mutual Insurance Company (\u201cFarm Bureau\u201d). The policy relevant to this appeal, however, is an automobile liability insurance policy issued by defendant Kemper Insurance Company aka Lumbermen\u2019s Mutual Casualty Company (\u201cKemper\u201d) to defendant Leon Perkinson (\u201cKemper policy\u201d). The vehicle insured under this policy was not involved in the accident. On 2 July 1998, Farm Bureau filed an action alleging, among other things, that UIM coverage under the Kemper policy extended to Leon and Bess Perkinson as well as Milton and Mary Perkinson. Kemper answered, denying that the Kemper policy provided UIM coverage in favor of the estates of Milton and Mary Perkinson and counterclaimed seeking a declaratory judgment concerning UIM coverage of their estates. On 15 June 1999, Kemper moved for summary judgment on all issues regarding UIM coverage of the estates of Milton and Mary Perkinson. The parties stipulated to all relevant facts, leaving only the legal question of UIM coverage under the Kemper policy. On 6 July 1999, the trial court granted summary judgment in favor of Kemper. Farm Bureau appeals.\nIn determining whether the trial court properly concluded UIM coverage under the Kemper policy did not extend to the estates of Milton and Mary Perkinson, we examine first the relevant language of the Kemper policy. The UIM section of that policy allows an \u201cinsured\u201d to recover for personal injuries, defining \u201cinsured\u201d as:\n\u201c1. You or any \u2018family member.\u2019\n2. Any other person \u2018occupying\u2019:\na.\u2018 Your covered auto\u2019; or\nb. Any other auto operated by you.\n3. Any person for damages that person is entitled to recover because of \u2018bodily injury\u2019 to which this coverage applies sustained by a person listed in 1. or 2. above.\u201d\nUnder the \u201cDefinitions\u201d section, the terms \u201cyou\u201d and \u201cyour\u201d are defined as \u201c [t]he \u2018named insured\u2019 shown in the Declarations\u201d and \u201c[t]he spouse if a resident of the same household.\u201d \u201cFamily member\u201d means \u201ca person related to you by blood, marriage or adoption who is a resident of your household.\" (Emphasis added).\nUnder the \u201cExclusions\u201d in the UIM coverage section, the Kemper policy provides:\nA. We do not provide coverage for \u201cproperty damage\u201d or \u201cbodily injury\u201d caused by an \u201cuninsured motor vehicle\u201d and sustained by any \u201cinsured\u201d:\n7. While \u201coccupying\u201d or when struck by, any motor vehicle owned by you or any \u201cfamily member\u201d which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.\nHowever, this exclusion does not apply to you or any \u201cfamily member.\u201d\nThe parties here stipulated for purposes of summary judgment that Milton and Mary Perkinson were not residents of the household of Leon and Bess Perkinson at the time of the accident. Under the express terms of the Kemper policy, they do not qualify as \u201cinsureds\u201d via the definition of a \u201cfamily member,\u201d who must be a resident of the household of the named insured. We emphasize the Kemper policy provision allowing UIM coverage to persons occupying \u201cyour covered auto\u201d is not applicable, as the vehicle insured under the Kemper policy was not involved in the accident. Accordingly, the Kemper policy does not entitle either Milton or Mary Perkinson to UIM coverage.\nFarm Bureau contends, however, the Kemper policy provisions denying Milton and Mary Perkinson UIM coverage are void as inconsistent with provisions of the Motor Vehicle Safety-Responsibility Act of 1953, N.C. Gen. Stat. \u00a7\u00a7 20-279.1 to -279.39 (\u201cthe Act\u201d) setting forth the minimum requirements for automobile liability coverage as a matter of law. Wilmoth v. State Farm, Mut. Auto Ins. Co., 127 N.C. App. 260, 262, 488 S.E.2d 628, 630, disc. review denied, 347 N.C. 410, 494 S.E.2d 601 (1997); see also Insurance Co. v. Chantos, 293 N.C. 431, 441, 238 S.E.2d 597, 604 (1977) (stating when the terms of the statute and the policy conflict, the statute prevails). Specifically, Farm Bureau asserts our courts have never decided whether an insurer can validly exclude UIM coverage from \u201crelatives\u201d of the named insured who are not members of the same household of the named insured. The specific provision relevant to UIM coverage under the Act is N.C. Gen. Stat. \u00a7 20-279.21(b)(4), which requires UIM coverage in accordance with the provisions of G.S. 20-279.21(b)(3).\nAt the time of the accident, N.C. Gen. Stat. \u00a7 20-279.21(b)(3) provided in relevant part:\nFor purposes of this section \u201cpersons insured\u201d means the 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, express or implied, of the named insured, the motor vehicle to which the policy applies and a guest in the motor vehicles to which the policy applies or the personal representative of any of the above or any other person or persons in lawful possession of the motor vehicle.\n(Emphasis added.) Under this statute there are two classes of \u201cpersons insured\u201d:\n(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.\n(Emphasis added). Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47, reh\u2019g denied, 328 N.C. 577, 403 S.E.2d 514 (1991). Members of the first class are \u201cpersons insured\u201d for the purposes of UIM coverage regardless of whether the insured vehicle is involved in the insured\u2019s injuries. Id. Members of the second class are \u201cpersons insured\u201d only when the insured vehicle is involved in their injuries. Id. The parties here concede that because the vehicle insured under the Kemper policy was not the vehicle involved in the collision, only the first class of \u201cpersons insured\u201d is relevant to this appeal. As to the required first class of insureds, the UIM provisions under the Kemper policy provide identical coverage as mandated by G.S. 20-279.21(b)(3). In both, one must be a \u201crelative\u201d of the named insured residing in the same household in order to be entitled to first class UIM coverage. Pursuant to the parties\u2019 stipulations in this case, neither Milton nor Mary Perkinson resided in the household of Leon Perkinson at the time of the accident and accordingly, are not entitled to UIM coverage.\nDespite the unambiguous language in the Act, Farm Bureau asserts the trial court\u2019s refusal to extend UIM coverage to Milton and Mary Perkinson violates the Act\u2019s purpose, which is to compensate innocent victims of financially irresponsible drivers, citing Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989). To the contrary, defendant Kemper argues that because the language employed in the statute is unambiguous, it would be erroneous for the court to resort to the Act\u2019s purpose to determine UIM coverage. We agree. Where \u201c[t]he meaning of the statute is clear, and where there is no ambiguity, there is no room for construction, and the intention must be gathered from the words employed.\u201d Battle v. Rocky Mount, 156 N.C. 330, 333-34, 72 S.E. 354, 355 (1911); see also Mazda Motors v. Southwestern Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (\u201cIf the language of a statute is free from ambiguity and expresses a single, definite, and sensible meaning, judicial interpretation is unnecessary and the plain meaning of the statute controls.\u201d)\nFarm Bureau also asserts the court\u2019s refusal to extend UIM coverage to Milton and Mary is contrary to our Supreme Court\u2019s decisions in Nationwide Mutual Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996), and Bray v. N.C. Farm Bureau Mut. Ins. Co., 341 N.C. 678, 462 S.E.2d 650 (1995). In these cases, however, the court invalidated exclusions in the insurance policies which precluded coverage by persons qualifying as first class \u201cinsured persons\u201d under G.S. 20-279.21(b)(3). Mabe, 342 N.C. at 496, 467 S.E.2d at 43 (policy exclusion prevented wife and daughter of named insured from UIM coverage where insured vehicle was not involved in accident); Bray, 341 N.C. at 682-83, 462 S.E.2d at 654 (policy exclusion prevented wife of named insured from UM coverage where insured vehicle was not involved in accident). Unlike the Kemper policy here, the applicable insurance policies in Mabe and Bray provided less coverage than is required under G.S. 20-279.21(b)(3). Id. Further, the court in both cases reinforced that a \u201cfamily member\u201d under the Act must reside in the same household as the named insured. Mabe, 342 N.C. at 497, 467 S.E.2d at 42; Bray, 341 N.C. at 683, 462 S.E.2d at 652.\nAccordingly, the trial court properly granted defendant Kemper\u2019s motion for summary judgment.\nAffirmed.\nJudges WALKER and HUNTER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for plaintiff-appellant.", "Yates, McLamb & Weyher, L.L.P., by R. Scott Brown and Michael J. Byrne, for defendant-appellee Kemper Insurance Company, aka Lumbermen\u2019s Mutual Casualty Company." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. CARL R. PERKINSON, Executor of the Estate of Milton Perkinson, CARL R. PERKINSON, Executor of the Estate of Mary Perkinson, LEON PERKINSON, BESS PERKINSON, LINDA ROBERTS, Administratrix of the Estate of Tommy Roberts, AUTO OWNERS MUTUAL INSURANCE COMPANY, KEMPER INSURANCE COMPANY, aka Lumbermen\u2019s Mutual Casualty Company, STATE CAPITAL INSURANCE COMPANY, MARY BREEDEN and BILLY BREEDEN, Defendants\nNo. COA99-1097\n(Filed 19 September 2000)\nInsurance\u2014 automobile \u2014 UIM coverage \u2014 relatives of the named insured \u2014 not residents of the same household\nThe trial court did not err by granting summary judgment in favor of defendant insurance company that issued an automobile liability insurance policy regarding UIM coverage of the estates of two of the named insured\u2019s relatives who were passengers in a vehicle driven by the named insured when they were struck by another automobile, because: (1) the relatives were not residents of the household of the insured at the time of the accident, and therefore, the express terms of the pertinent insurance policy reveal that they do not qualify as insureds as a \u201cfamily member\u201d; (2) the pertinent policy provision allowing UIM coverage to persons occupying the covered automobile is not applicable since the vehicle insured under the policy was not involved in the accident; (3) N.C.G.S. \u00a7 20-279.21(b)(3) provides that the relative of the named insured must reside in the same household in order to be entitled to first class UIM coverage; (4) it would be erroneous to resort to the Motor Vehicle Safety Responsibility Act\u2019s purpose to determine UIM coverage when the language employed in the statute is unambiguous; and (5) this case is not similar to prior cases where the Court of Appeals invalidated exclusions in the insurance policies which precluded coverage by persons qualifying as first class insured persons under N.C.G.S. \u00a7 20-279.21(b)(3) and that provided less coverage than is required under the statute.\nAppeal by plaintiff from order entered 6 July 1999 by Judge Carl L. Tilghman in Durham County Superior Court. Heard in the Court of Appeals 16 August 2000.\nHaywood, Denny & Miller, L.L.P., by Robert E. Levin, for plaintiff-appellant.\nYates, McLamb & Weyher, L.L.P., by R. Scott Brown and Michael J. Byrne, for defendant-appellee Kemper Insurance Company, aka Lumbermen\u2019s Mutual Casualty Company." }, "file_name": "0140-01", "first_page_order": 172, "last_page_order": 177 }