{ "id": 11360446, "name": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. FAYE MORGAN ALLEN, Administratrix of the ESTATE OF EDGAR LEWIS ALLEN and JOE HAMPTON YOW, Defendants", "name_abbreviation": "North Carolina Farm Bureau Mutual Insurance v. Allen", "decision_date": "2001-10-16", "docket_number": "No. COA00-1407", "first_page": "539", "last_page": "546", "citations": [ { "type": "official", "cite": "146 N.C. App. 539" } ], "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": "429 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "finding that wife of insured under life insurance policy was neither a party to the contract nor a third-party beneficiary, and consequently had no standing to sue on the contract" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525162 ], "year": 1993, "pin_cites": [ { "parenthetical": "finding that wife of insured under life insurance policy was neither a party to the contract nor a third-party beneficiary, and consequently had no standing to sue on the contract" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0194-01" ] }, { "cite": "472 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "366", "parenthetical": "\"[t]he injured party in an automobile accident is an intended third-party beneficiary to the insurance contract between insurer and the tortfeasor/insured party\"" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911479 ], "year": 1996, "pin_cites": [ { "page": "15", "parenthetical": "\"[t]he injured party in an automobile accident is an intended third-party beneficiary to the insurance contract between insurer and the tortfeasor/insured party\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0001-01" ] }, { "cite": "544 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "801", "parenthetical": "noting that North Carolina permits \"a person to bring an action to enforce a contract to which he is not a party, if he demonstrates that the contracting parties intended primarily and directly to benefit him or the class of persons to which he belongs\"" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442530 ], "year": 2001, "pin_cites": [ { "page": "604", "parenthetical": "noting that North Carolina permits \"a person to bring an action to enforce a contract to which he is not a party, if he demonstrates that the contracting parties intended primarily and directly to benefit him or the class of persons to which he belongs\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0598-01" ] }, { "cite": "486 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712775 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0683-01" ] }, { "cite": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] }, { "cite": "303 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "62 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523150 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0461-01" ] }, { "cite": "445 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "115 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135419 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/115/0534-01" ] }, { "cite": "472 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "intent to injure may be inferred from intentional act of sexual harassment" } ], "opinion_index": 0 }, { "cite": "343 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798851, 798883, 798950, 798797, 798783 ], "year": 1996, "pin_cites": [ { "parenthetical": "intent to injure may be inferred from intentional act of sexual harassment" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0309-05", "/nc/343/0309-04", "/nc/343/0309-01", "/nc/343/0309-03", "/nc/343/0309-02" ] }, { "cite": "467 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "intent to injure may be inferred from intentional act of sexual harassment" } ], "opinion_index": 0 }, { "cite": "342 N.C. 896", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796000, 795975, 796076, 796028, 795997 ], "year": 1996, "pin_cites": [ { "parenthetical": "intent to injure may be inferred from intentional act of sexual harassment" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0896-04", "/nc/342/0896-01", "/nc/342/0896-03", "/nc/342/0896-05", "/nc/342/0896-02" ] }, { "cite": "464 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "121 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916280 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/121/0185-01" ] }, { "cite": "493 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "intent to inflict emotional injury may be inferred from solicitation to commit murder, precluding coverage due to \"expected or intended\" exclusion" } ], "opinion_index": 0 }, { "cite": "347 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551076, 551238, 551187, 551348, 551323 ], "year": 1997, "pin_cites": [ { "parenthetical": "intent to inflict emotional injury may be inferred from solicitation to commit murder, precluding coverage due to \"expected or intended\" exclusion" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0265-05", "/nc/347/0265-01", "/nc/347/0265-03", "/nc/347/0265-02", "/nc/347/0265-04" ] }, { "cite": "485 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "intent to inflict emotional injury may be inferred from solicitation to commit murder, precluding coverage due to \"expected or intended\" exclusion" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711415 ], "year": 1997, "pin_cites": [ { "parenthetical": "intent to inflict emotional injury may be inferred from solicitation to commit murder, precluding coverage due to \"expected or intended\" exclusion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0483-01" ] }, { "cite": "489 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "interpreting Virginia law but noting the substantial similarities of North Carolina law and finding that \"intended or expected\" exclusion precluded coverage where insured punched victim in the forehead" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796541 ], "year": 1997, "pin_cites": [ { "parenthetical": "interpreting Virginia law but noting the substantial similarities of North Carolina law and finding that \"intended or expected\" exclusion precluded coverage where insured punched victim in the forehead" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0405-01" ] }, { "cite": "544 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685003, 685101, 684884, 685111, 685081 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0590-05", "/nc/352/0590-02", "/nc/352/0590-01", "/nc/352/0590-03", "/nc/352/0590-04" ] }, { "cite": "530 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "95" }, { "page": "94" }, { "page": "95" }, { "page": "95" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080676 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "532" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0530-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "55 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632328 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0743-01" ] }, { "cite": "94 N.C. 982", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652726 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/nc/94/0982-01" ] }, { "cite": "11 S.E. 330", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "pin_cites": [ { "page": "330-31" } ], "opinion_index": 0 }, { "cite": "106 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651837 ], "year": 1890, "pin_cites": [ { "page": "573-74" } ], "opinion_index": 0, "case_paths": [ "/nc/106/0571-01" ] }, { "cite": "113 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "252 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622539 ], "year": 1960, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0412-01" ] }, { "cite": "163 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "633-34" } ], "opinion_index": 0 }, { "cite": "2 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554818 ], "year": 1968, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0627-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-283", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "465 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "560-61" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917415 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0382-01" ] }, { "cite": "525 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "136 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241018 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/136/0578-01" ] }, { "cite": "533 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "139 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496659 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/139/0311-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0064-01" ] } ], "analysis": { "cardinality": 833, "char_count": 18195, "ocr_confidence": 0.76, "pagerank": { "raw": 1.5665226282000967e-07, "percentile": 0.677913268302515 }, "sha256": "39bca5ac9af63006cbf7b10d8800364c080a9a0b24bb031c3aa31c8e59767b17", "simhash": "1:8fd6f4867728be7e", "word_count": 2964 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and BRYANT concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. FAYE MORGAN ALLEN, Administratrix of the ESTATE OF EDGAR LEWIS ALLEN and JOE HAMPTON YOW, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nJoe Hampton Yow appeals from summary judgment favoring North Carolina Farm Bureau Mutual Insurance Company. We affirm.\nFarm Bureau Insurance insured Edgar Lewis Allen providing bodily injury liability coverage \u201c[i]f a claim is made or a suit is brought against any insured for damages because of bodily injury . . . to which this coverage applies[.]\u201d The policy also provided for payment of \u201cnecessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury\u201d to persons \u201con the insured location with the permission of [the] insured[.]\u201d However, the policy excluded such personal liability and medical payments coverage from bodily injury \u201cwhich is expected or intended by the insured.\u201d This appeal concerns the interpretation of this exclusionary language.\nAllen owned an unoccupied house in Montgomery County, North Carolina. The house had previously been broken into, and on 4 September 1997, Allen asked Yow to stay with him overnight in the house to guard against a further break-in. Allen took along several firearms, including two handguns and two rifles. At some point during the night, Allen awoke and thought he heard someone outside, possibly an intruder. Allen pointed one of his handguns in the direction of the purported intruder; the gun fired, striking Yow. Yow contends in his brief that Allen fired the gun accidentally, while Farm Bureau Insurance argues that Allen fired the gun intentionally. Furthermore, Farm Bureau Insurance contends that Yow\u2019s injuries, even though perhaps not intended by Allen, could nonetheless be reasonably expected to result from the intentional act of firing the gun, and therefore were excluded from coverage under the policy.\nUnder a declaratory action against Allen and Yow, Farm Bureau Insurance sought a determination of whether it was required to defend and indemnify Allen in a personal injury action brought by Yow based on the shooting. That declaratory judgment action resulted in the trial court granting summary judgment in favor of Farm Bureau Insurance against both Allen and Yow; only Yow appeals to us.\nYow brings forth the following two assignments of error:\n1. The Court erred in granting Plaintiffs Motion for Summary Judgment.\n2. The Court erred in allowing [Yow\u2019s] Deposition to be included in the Record on Appeal.\nAt the outset, we note that in his brief, Yow presents a single \u201cArgument\u201d without reference to his assignments of error, in violation of our Rules of Appellate Procedure. See N.C.R. App. P. 28(b)(5) (2000) (requiring appellant\u2019s brief to separately state each question presented, followed by a reference to the pertinent assignment(s) of error, \u201cidentified by their numbers and by the pages at which they appear in the printed record on appeal\u201d). Although such a failure to comply with our appellate rules may subject an appeal to dismissal, Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999), we exercise our discretion under N.C.R. App. P. 2 (2000), and consider the merits of this appeal. See Naddeo v. Allstate Ins. Co., 139 N.C. App. 311, 533 S.E.2d 501 (2000); May v. City of Durham, 136 N.C. App. 578, 525 S.E.2d 223 (2000).\nRegarding his second assignment of error, Yow cites Graham v. Hardee\u2019s Food Systems, 121 N.C. App. 382, 465 S.E.2d 558 (1996), arguing that his deposition should not have been included in the record on appeal as he contends it was not considered by the trial court in ruling upon the parties\u2019 opposing motions for summary judgment. In Graham, this Court declined to consider additional materials offered by the plaintiff for addition to the record on appeal, where \u201cthe transcript show[ed] these materials were not properly tendered for consideration on [the] defendant\u2019s motion for summary judgment and were not considered by the trial court.\u201d 121 N.C. App. at 386, 465 S.E.2d at 560-61. As the transcript indicated those materials were not part of the official record on appeal, this Court held that they could not be considered by it on appeal. See id. (citing N.C.R. App. P. 9 (2000)).\nIn the instant case, there is no definitive indication in the record whether Yow\u2019s deposition was considered by the trial court in ruling on the parties\u2019 motions for summary judgment. Farm Bureau Insurance\u2019s motion requested entry of summary judgment in its favor on grounds that the materials before the trial court, specifically including \u201cdepositions,\u201d revealed no genuine issue as to any material fact. However, Farm Bureau Insurance\u2019s motion was filed with the trial court on 16 June 2000, several days prior to Yow\u2019s deposition on 22 June 2000.\nAllen moved for summary judgment on grounds that the materials before the trial court, specifically including \u201cdepositions,\u201d revealed no genuine issue as to any material fact. This motion was filed with the trial court on 6 July 2000. Nonetheless, this motion specifically asked the trial court to \u201cconsider all pleadings in the file, the Plaintiff\u2019s responses to the Defendant, Faye Morgan Allen, Administratrix of the Estate of Edgar Lewis Allen, Request for Production of Documents; the [] Affidavit of Faye Morgan Allen and all other documents of record.\u201d Noticeably absent is any mention of Yow\u2019s deposition testimony.\nLastly, the trial court\u2019s 21 July 2000 order granting summary judgment to Farm Bureau Insurance states that the court considered the \u201cdepositions,\u201d among other materials, and found no genuine issue of material fact. However, we do not deem the trial court\u2019s general recitation of the N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) language conclusive on the issue of whether the court considered Yow\u2019s deposition testimony in ruling on the motions for summary judgment.\nRegardless of the inconclusive nature of the materials in the record on this issue, we take this opportunity to point out that \u201conly the judge of [the] superior court or of [the] district court from whose order or judgment an appeal has been taken is empowered to settle the record on appeal when judicial settlement is required.\u201d N.C. Gen. Stat. \u00a7 1-283 (1999). This Court has held that \u201cthe appellate court is bound by the contents of the record on appeal. The record imports verity and the Court of Appeals is bound thereby.\u201d State v. Hickman, 2 N.C. App. 627, 630, 163 S.E.2d 632, 633-34 (1968). Where asked to settle the record on appeal, \u201c[t]he trial judge then has both the power and the duty to exercise supervision to see that the record accurately presents the questions on which this Court is expected to rule.\u201d Conrad v. Conrad, 252 N.C. 412, 416, 113 S.E.2d 912, 914 (1960). \u201c[T]his Court must receive and act upon the case settled for this Court as importing absolute verity and as it comes from the court below[.] . . . This Court. . . has no authority to suggest to, direct or require the judge, in settling the case, as to . . . what facts he shall state, or what matter he shall set forth.\u201d Boyer v. Teague, 106 N.C. 571, 573-74, 11 S.E. 330, 330-31 (1890). Thus, the trial judge\u2019s settlement of the record on appeal is final, and cannot be reviewed by this Court on appeal. See State v. Gooch, 94 N.C. 982 (1886); State v. Johnson, 230 N.C. 743, 55 S.E.2d 690 (1949). Appellant\u2019s second assignment of error is therefore overruled,' and we consider the entire record on appeal, including Yow\u2019s deposition testimony, in ruling on the merits of his first assignment of error.\nWe next consider Yow\u2019s argument that the trial court erred in granting summary judgment to Farm Bureau Insurance. With this argument, we disagree.\nSummary judgment is proper where \u201cthe 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. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999). The party seeking summary judgment must establish the absence of any triable issue; this burden may be met by (1) proving the nonexistence of an essential element of the opposing party\u2019s claim, (2) establishing through discovery that the opponent cannot produce evidence supporting an essential element, or (3) showing that the opposing party cannot overcome an affirmative defense that would bar the claim. See Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992).\nThe pertinent issue before us is whether, as a matter of law, the bodily injury inflicted upon Yow by Allen was \u201cexpected or intended\u201d by Allen such that it is barred from coverage under Farm Bureau Insurance\u2019s policy. We conclude that the policy excludes coverage for Yow\u2019s injuries.\n\u201cThe interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction.\u201d N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 532, 530 S.E.2d 93, 95, disc. review denied, 352 N.C. 590, 544 S.E.2d 783 (2000). The language used in such policies is subject to judicial construction only where it \u201cis ambiguous and reasonably susceptible to more than one interpretation.\u201d Id.\nIn Mizell, this Court addressed a factual scenario strikingly analogous to the instant case. There, plaintiff North Carolina Farm Bureau Mutual Insurance Company provided homeowner\u2019s insurance coverage to defendant Mizell. One evening Mizell emerged from his house with his rifle, which he fired in the direction of someone running away from his house who he believed to be a prowler. At least one of the bullets fired struck defendant Austin in the head, injuring him; Austin later filed suit against Mizell seeking to recover damages from Mizell for his personal injuries. Subsequently, as in the instant case, Farm Bureau Insurance filed a declaratory judgment action to determine whether the insurance policy covered Mizell\u2019s actions.\nThe insurance policy insuring Mizell excluded coverage for \u201cbodily injury\u201d or \u201cproperty damage\u201d:\na. Which is intended by or which may reasonably be expected to result from the intentional act or omissions or criminal acts or omissions for one or more \u2018insured\u2019 persons. This exclusion applies even if:\n(2) The \u2018bodily injury\u2019 or \u2018property damage\u2019 is of a different kind, quality or degree than intended or reasonably expected[.]\n138 N.C. App. at 531, 530 S.E.2d at 94. Mizell\u2019s statement to the district attorney indicated that he fired the rifle at a person he believed to be a prowler. Mizell indicated that he fired in the prowler\u2019s general direction, meaning only to scare the prowler but not to hit him. Id.\nThis Court affirmed the trial court\u2019s grant of summary judgment in Farm Bureau Insurance\u2019s favor, stating that \u201cwhen a person fires multiple shots from a rifle at night in the direction of a prowler who is approximately fifty feet away, that person could reasonably expect injury or damage to result from the intentional act.\u201d Id. at 533-34, 530 S.E.2d at 95. In so holding, this Court noted that the insurance policy\u2019s exclusionary language \u201csuggests the application of an objective standard as opposed to\u201d a subjective one. Id. at 533, 530 S.E.2d at 95.\nHowever, even in instances in which an insurance policy\u2019s exclusionary language suggests a subjective standard of intent to injure or expectation of injury, this Court has held that an intent to injure may be inferred as a matter of law from certain acts. See Erie Ins. Group v. Buckner, 127 N.C. App. 405, 489 S.E.2d 901 (1997) (interpreting Virginia law but noting the substantial similarities of North Carolina law and finding that \u201cintended or expected\u201d exclusion precluded coverage where insured punched victim in the forehead); Eubanks v. State Farm Fire and Casualty Co., 126 N.C. App. 483, 485 S.E.2d 870, disc. review denied, 347 N.C. 265, 493 S.E.2d 452 (1997) (intent to inflict emotional injury may be inferred from solicitation to commit murder, precluding coverage due to \u201cexpected or intended\u201d exclusion); Russ v. Great American Ins. Companies, 121 N.C. App. 185, 464 S.E.2d 723 (1995), disc. review denied, 342 N.C. 896, 467 S.E.2d 905, and motion to reconsider dismissed, 343 N.C. 309, 472 S.E.2d 334 (1996) (intent to injure may be inferred from intentional act of sexual harassment). See also Nationwide Mutual Ins. Co. v. Abernethy, 115 N.C. App. 534, 445 S.E.2d 618 (1994); Commercial Union Ins. Co. v. Mauldin, 62 N.C. App. 461, 303 S.E.2d 214 (1983).\nDefendant Yow cites N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 412 S.E.2d 318 (1992), and Miller v. Nationwide Mutual Ins. Co., 126 N.C. App. 683, 486 S.E.2d 246 (1997), in support of his contention that the \u201cexpected or intended\u201d exclusion in the instant case does not preclude coverage for his injuries resulting from Allen\u2019s actions. As in Mizell, we distinguish Stox and Miller in that the insurer in each of those cases failed to show that the insured\u2019s action was expected or intended to cause injury or damage.\nSimilar to Mizell, in the instant case, Allen\u2019s statement to police after the shooting indicated that he \u201cshot through the door\u201d at someone he saw outside. Allen also advised police that \u201che had shot Joe Yow because he thought he was breaking in on him.\u201d According to Yow\u2019s deposition, he could clearly see Allen approximately three feet away through the door when Allen shot him. We hold that Allen\u2019s intentional act of firing his handgun at Yow, in close proximity, was sufficiently certain to cause injury that Allen should have expected such injury to occur. See Eubanks; Russ; Mauldin; Mizell. Accordingly, the \u201cexpected or intended\u201d exclusionary language in Allen\u2019s insurance policy with Farm Bureau Insurance precludes coverage for Yow\u2019s injuries. The trial court\u2019s grant of summary judgment in favor of Farm Bureau Insurance is therefore,\nAffirmed.\nJudges McCULLOUGH and BRYANT concur.\n. At the time of this action, Allen was deceased so Farm Bureau Insurance brought this action against his estate through his administratrix, Faye Morgan Allen. The Estate is referred to as \u201cAllen\u201d throughout the opinion.\n. Neither party takes issue with the failure of Allen to appeal from summary judgment. Since Allen did not appeal, the summary judgment declaring that Farm Bureau Insurance has no obligation to provide coverage that would indemnify Allen for potential liability to Yow stands.\nAs the parties have not raised this issue, and consideration thereof is not necessary to our disposition of this appeal, we do not address whether Yow nonetheless qualifies as a third-party beneficiary such that he alone can directly seek enforcement of the terms of the Farm Bureau Insurance policy. See DeMent v. Nationwide Mutual Ins. Co., 142 N.C. App. 598, 604, 544 S.E.2d 797, 801 (2001) (noting that North Carolina permits \u201ca person to bring an action to enforce a contract to which he is not a party, if he demonstrates that the contracting parties intended primarily and directly to benefit him or the class of persons to which he belongs\u201d); Murray v. Nationwide Mutual Ins. Co., 123 N.C. App. 1, 15, 472 S.E.2d 358, 366 (1996) (\u201c[t]he injured party in an automobile accident is an intended third-party beneficiary to the insurance contract between insurer and the tortfeasor/insured party\u201d); Jefferson-Pilot Life Ins. Co. v. Spencer, 110 N.C. App. 194, 429 S.E.2d 583 (1993) (finding that wife of insured under life insurance policy was neither a party to the contract nor a third-party beneficiary, and consequently had no standing to sue on the contract). This case begs the question whether an injured third party can ever achieve third-party beneficiary status thus entitling him to maintain an action against the insurer, where the insurer has been conclusively deemed to have no liability to the insured. Since that matter has not been addressed by the parties, we reserve our answer to that question for another day.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Robbins May & Rich L.L.P., by P. Wayne Robbins, for defendant-appellant Joe Hampton Yow.", "Pinto, Coates, Kyre & Brown, P.L.L.C., by Paul D. Coates and John I. Malone, Jr., for plaintiff-appellee North Carolina Farm Bureau Mutual Insurance Company." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. FAYE MORGAN ALLEN, Administratrix of the ESTATE OF EDGAR LEWIS ALLEN and JOE HAMPTON YOW, Defendants\nNo. COA00-1407\n(Filed 16 October 2001)\n1. Appeal and Error\u2014 record on appeal \u2014 inclusion of defendant\u2019s deposition\nThe trial court did not err by allowing defendant\u2019s deposition to be included in the record on appeal from summary judgment for plaintiff insurance company in a declaratory judgment action to determine whether plaintiff was required to defend and indemnify an insured in a personal injury action brought by an individual based on the insured shooting the individual, because: (1) there is no definitive indication in the record whether the deposition was considered by the trial court in ruling on the parties\u2019 opposing motions for summary judgment; and (2) the trial judge\u2019s settlement of the record on appeal is final and cannot be reviewed by the appellate court.\n2. Insurance\u2014 personal injury action \u2014 expected or intended injury exclusionary language\nThe trial court did not err by granting summary judgment in favor of plaintiff insurance company in a declaratory judgment action to determine whether the insurance company was required to defend and indemnify the insured in a personal injury action brought by an individual based on the insured shooting the individual, because: (1) the insured\u2019s statement to police after the shooting indicated that he shot through the door at someone he saw outside and that the insured shot the individual because he thought he was breaking in; (2) the insured\u2019s intentional act of firing his handgun at the individual in close proximity was sufficiently certain to cause injury that the insured should have expected such injury to occur; and (3) the expected or intended injury exclusionary language in the insured\u2019s insurance policy precludes coverage for the individual\u2019s injuries.\nAppeal by defendant Joe Hampton Yow from order entered 21 July 2000 by Judge Melzer A. Morgan, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 19 September 2001.\nRobbins May & Rich L.L.P., by P. Wayne Robbins, for defendant-appellant Joe Hampton Yow.\nPinto, Coates, Kyre & Brown, P.L.L.C., by Paul D. Coates and John I. Malone, Jr., for plaintiff-appellee North Carolina Farm Bureau Mutual Insurance Company." }, "file_name": "0539-01", "first_page_order": 571, "last_page_order": 578 }