{ "id": 9132302, "name": "ROBERTO CASTILLO TRUJILLO and WILLIAM LEWIS KING, Administrator of the Estate of PEDRO BELTRAN BORBONIO, Plaintiffs v. NORTH CAROLINA GRANGE MUTUAL INSURANCE CO. and HALIFAX MUTUAL INSURANCE CO., Defendants", "name_abbreviation": "Trujillo v. North Carolina Grange Mutual Insurance", "decision_date": "2002-04-16", "docket_number": "No. COA00-1204", "first_page": "811", "last_page": "817", "citations": [ { "type": "official", "cite": "149 N.C. App. 811" } ], "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": "143 P.2d 800", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1622319 ], "year": 1943, "pin_cites": [ { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/okla/193/0395-01" ] }, { "cite": "268 P.2d 886", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10504877 ], "year": 1953, "pin_cites": [ { "page": "889", "parenthetical": "quoting Anderson v. Dukes, 143 P.2d 800, 801 (1943)" } ], "opinion_index": 0, "case_paths": [ "/p2d/268/0886-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 59-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "398 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "101 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527480 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/101/0199-01" ] }, { "cite": "362 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "810", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357856 ], "year": 1987, "pin_cites": [ { "page": "110", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0107-01" ] }, { "cite": "243 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "897", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560959 ], "year": 1978, "pin_cites": [ { "page": "43", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0039-01" ] }, { "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": "467 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "40", "parenthetical": "citing 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": "342 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795937 ], "year": 1996, "pin_cites": [ { "page": "492", "parenthetical": "citing 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/342/0482-01" ] }, { "cite": "360 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "816", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358494 ], "year": 1987, "pin_cites": [ { "page": "421-22", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0420-01" ] }, { "cite": "348 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "796", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736888 ], "year": 1986, "pin_cites": [ { "page": "380", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0378-01" ] }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "191 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562635 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0044-01" ] } ], "analysis": { "cardinality": 618, "char_count": 14561, "ocr_confidence": 0.742, "pagerank": { "raw": 2.2807485634107713e-07, "percentile": 0.7851459679695612 }, "sha256": "75b6658294cb75cd8f220986d1987f8806b41f407718b7000c4dd668dad3af15", "simhash": "1:8fe2786402f5825f", "word_count": 2396 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BIGGS concur." ], "parties": [ "ROBERTO CASTILLO TRUJILLO and WILLIAM LEWIS KING, Administrator of the Estate of PEDRO BELTRAN BORBONIO, Plaintiffs v. NORTH CAROLINA GRANGE MUTUAL INSURANCE CO. and HALIFAX MUTUAL INSURANCE CO., Defendants" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiffs brought this action seeking a declaratory judgment to determine whether defendant insurance companies provide coverage for personal injuries sustained by Roberto Castillo Trujillo and the death of Pedro Beltran Borbonio. In a separate action, a jury found that Trujillo was injured, and Borbonio was killed, on 13 October 1996 as a result of the negligent operation of a cotton picker machine by Donald Ray Vick. The same jury also determined that Robert Harrell, Russell Harrell, and Melvin Harrell, d/b/a Harrell Farms were not negligent. Plaintiffs were awarded judgment against Vick for damages for Trujillo\u2019s injuries and Borbonio\u2019s death.\nIn their complaint for declaratory judgment, plaintiffs alleged that at the time of the accident, Vick \u201cwas an employee of Melvin O. Harrell and Russell Harrell, and Robert Harrell d/b/a Harrell Farms,\u201d and that Vick was acting \u201cin the course and scope of his employment with Melvin 0. Harrell, Russell Harrell, and Robert Harrell d/b/a/ Harrell Farms.\u201d Plaintiffs alleged that Melvin 0. Harrell was insured under a policy issued by Halifax Mutual Insurance Company (Halifax), and that Russell Harrell was insured under a policy issued by defendant North Carolina Grange Mutual Insurance Company (defendant NCGMIC). Plaintiffs alleged that Vick was an insured under both of the policies.\nPlaintiffs submitted to a voluntary dismissal with prejudice as to Halifax. Defendant NCGMIC filed an answer admitting that it insured Russell Harrell under a policy of insurance which was in effect on the date of the accident, but denying that Donald Ray Vick was insured by the policy or that the policy provided any coverage for his negligent acts or omissions. After the completion of discovery, the trial court granted plaintiffs\u2019 motion for summary judgment. Defendant NCGMIC appeals.\nDefendant NCGMIC assigns error to the trial court\u2019s grant of summary judgment for plaintiffs, arguing that Donald Ray Vick is not an insured under the insurance policy issued by defendant to Russell Harrell and Sheila Harrell. For the reasons which follow, we agree with defendant; therefore, we reverse the order granting summary judgment in favor of plaintiffs and remand this case to the trial court for entry of summary judgment in favor of defendant NCGMIC.\nSummary judgment is appropriate when the materials before the court reveal there is no genuine controversy concerning any factual issue which is material to the outcome of the action so that resolution of the action involves only questions of law. First Federal Savings & Loan Ass\u2019n. v. Branch Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972). The burden is on the party moving for summary judgment to show the absence of any genuine issue of fact and his entitlement to judgment as a matter of law. Id. In ruling on the motion, the court is not authorized to resolve any issue of fact, only to determine whether there exist any genuine issues of fact material to the outcome of the case. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). When appropriate, summary judgment may be rendered against the moving party. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c).\nIt is well settled that \u201can insurance policy is a contract and its provisions govern the rights and duties of the parties thereto.\u201d Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986) (citations omitted). In those circumstances where \u201cthe language of a contract is plain and unambiguous, the construction of the agreement is a matter of law for the court.\u201d W.S. Clark & Sons, Inc. v. Ruiz, 87 N.C. App. 420, 421-22, 360 S.E.2d 814, 816 (1987) (citation omitted). If an insurance policy is not ambiguous, \u201cthen the court must enforce the policy as written and may not remake the policy under the guise of interpreting an ambiguous provision.\u201d Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 492, 467 S.E.2d 34, 40 (1996) (citing Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970)). Further,\na contract of insurance should be given that construction which a reasonable person in the position of the insured would have understood it to mean and, if the language used in the policy is reasonably susceptible of different constructions, it must be given the construction most favorable to the insured, since the company prepared the policy and chose the language.\nGrant v. Emmco Ins. Co., 295 N.C. 39, 43, 243 S.E.2d 894, 897 (1978) (citations omitted).\nIn this case, it is undisputed that defendant NCGMIC issued its policy of insurance to its named insureds, Russell Harrell and Sheila Harrell, and that the policy was in effect on the date of the accident in which Pedro Borbonio was killed and Roberto Trujillo was injured. The policy, a \u201cFarmowners Policy \u2014 Broad Form\u201d provided, in \u201cSection II \u2014 Liability Coverage,\u201d coverage to an \u201cinsured\u201d for liability for damages because of bodily injury or death \u201cto which this coverage applies.\u201d The policy defined \u201cinsured\u201d as the named insureds, Russell Harrell and Sheila Harrell and, as relevant to this case, an \u201cinsured\u201d under the policy was also defined \u201cwith respect to any vehicle to which this policy applies, any person while engaged in your employment . . . The two issues, then, upon which this case turns are (1) whether Donald Ray Vick was, in the operation of the cotton picker, engaged in the employment of Russell Harrell so as to be an \u201cinsured\u201d within the coverage of the NCGMIC policy, and (2) whether the cotton picker which he was operating at the time of the accident was a vehicle \u201cto which [the NCGMIC] policy applies.\u201d We hold that a genuine issue of fact exists as to the first issue, precluding summary judgment in favor of plaintiffs, but that there is no issue of fact that the cotton picker operated by Vick was not a vehicle to which the NCGMIC policy applied. Thus, Vick cannot be an \u201cinsured\u201d under the NCGMIC policy issued to Russell Harrell and NCGMIC is entitled to judgment as a matter of law.\nThe materials before the trial court for its consideration in ruling on the motion for summary judgment consisted of the pleadings, depositions, and trial transcript in the underlying tort action, as well as the pleadings and discovery in the present action. In the underlying action, plaintiffs alleged that Donald Ray Vick was an employee of \u201cRussell H. Harrell, Robert T. Harrell and Melvin 0. Harrell, d/b/a Harrell Farms, a partnership ...,\u201d that the cotton picker machine was owned by either Robert Harrell or Russell Harrell, and that the accident occurred while Borbonio, Trujillo and Vick were working on a farm owned by Melvin Harrell. In his answer, Vick admitted that he \u201cwas employed and paid by Harrell Farms with a check drawn on the Harrell Farms payroll account . ...\u201d He admitted upon information and belief that the cotton picker was owned by Robert Harrell and that the farm where the accident occurred was owned by Melvin Harrell. Russell Harrell similarly admitted that Vick was employed by Russell Harrell and Robert Harrell, d/b/a Harrell Farms, a partnership, and that the cotton picker was \u201cowned by either Russell H. Harrell or Robert T. Harrell.\u201d\nIn his deposition taken in the underlying action, Vick testified that his employer and supervisor was Russell Harrell. At the trial of the underlying action, however, Vick testified that he was employed by Harrell Farms and that he was paid by Harrell Farms checks. Robert Harrell testified in the underlying action that Harrell Farms consisted of himself; his brother, Russell Harrell; and their father, Melvin Harrell. All three owned their own farms and equipment and set up a common account to share the labor pool. Russell Harrell testified that Vick was employed by Harrell Farms.\nThere is evidence from which a jury could, but would not be compelled to, find that Russell Harrell, Robert Harrell, and Melvin Harrell were in fact engaged in business as partners. \u201cA partnership is a combination of two or more persons, their property, labor, or skill in a common business or venture under an agreement to share profits or losses and where each party to the agreement stands as an agent to the other and the business.\u201d G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 110, 362 S.E.2d 807, 810 (1987) (citations omitted). The existence of a partnership does not require an express written or oral agreement; its existence may be inferred by the conduct of the parties and requires examination of the circumstances. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625 (1990); see N.C. Gen. Stat. \u00a7 59-37.\nNot only is the existence of the partnership an issue material to the resolution of this action, the allegations, admissions, and testimony also disclose a factual dispute as to Donald Ray Vick\u2019s employer. There is considerable evidence that Vick was employed by the partnership, if such a partnership is found to have existed at the time of the accident; there is also evidence that Vick was an employee of Russell Harrell.\nPlaintiffs argue that the issue of who employed Vick is not material because all partners are jointly and severally liable for the acts and obligations of the partnership. However, there is no partnership obligation at issue here; the jury in the underlying action found no liability on the part of the individual Harrells or Harrell Farms. The only issue is whether NCGMIC provides coverage for Vick as an \u201cinsured\u201d under Russell Harrell\u2019s policy. Vick can only be an \u201cinsured\u201d under the policy if he is employed by Russell Harrell. \u201c \u2018A partnership as employer constitutes an entirely different employer than would exist if one of the partners is the individual employer. ... A partnership is a distinct entity from the individual members constituting it.\u2019 \u201d Oklahoma Farm Bureau Mut. Ins. Co. v. Mouse, 268 P.2d 886, 889 (1953) (quoting Anderson v. Dukes, 143 P.2d 800, 801 (1943)). Thus, there is a genuine issue of fact as to whether Vick was engaged as an employee of NCGMIC\u2019s named insured, Russell Harrell, at the time of the accident giving rise to this action.\nAs noted above, even if Vick had been an employee of Russell Harrell, in order to come within the coverage of the policy as an \u201cinsured\u201d he would have to have been operating a vehicle to which the policy applied. Under the language of the policy, \u201c \u2018insured\u2019 also means: . . . b. with respect to any vehicle to which this policy applies, any person while engaged in your employment. ...\u201d\nThe policy declarations listed the mobile agricultural equipment to which the coverage applied, including a 1996 John Deere model 9965 cotton picker. NCGMIC argues, however, that the evidence is uncontroverted that at the time of the accident, Vick was not operating the cotton picker owned by Russell Harrell and listed in the policy. Instead, the evidence shows Vick was operating a model 9960 cotton picker owned by Robert Harrell. Therefore, defendant NCGMIC argues, regardless of by whom Vick was employed, there can be no coverage for Vick\u2019s operation of a vehicle to which the NCGMIC policy does not apply and defendant is entitled to summary judgment in its favor as a matter of law.\nPlaintiffs counter that the policy issued by NCGMIC to Russell Harrell contained a Custom Farming endorsement, by which the liability coverage was extended \u201cto include farm tractors, trailers, implements, . . ., or vehicles used while under contract to others for a charge in connection with any farming operation.\u201d They argue the endorsement extends coverage to Vick, as an employee of Russell Harrell, under the policy. We disagree.\nThe plain language of the Custom Farming endorsement requires that equipment be used \u201cunder contract to others for a charge\u201d in order for coverage to be extended under the endorsement. There is no evidence from which a jury could find that, on the date of the accident, Russell Harrell was using Robert Harrell\u2019s cotton picker under contract with Melvin Harrell for a charge. Though the cotton picker was operating in a field owned by Melvin Harrell on the date of the accident, there was no evidence of any arrangement between Melvin Harrell and Russell Harrell whereby Russell Harrell was charging a fee for harvesting the cotton. Russell Harrell testified that each of the men had their own farms, \u201cbut we work together on harvesting all our farms.\u201d The labor cost for harvesting the field was paid through the Harrell Farms account. Melvin Harrell was to receive the profits realized from the field after payment of the expenses. Thus, there is no evidence from which a jury could find the Custom Farming endorsement extends the coverage of NCGMIC\u2019s policy to Donald Ray Vick in this case.\nThere is no genuine issue of material fact that the cotton picker operated by Vick was not a vehicle to which the NCGMIC policy applied. Therefore, Vick cannot be an \u201cinsured\u201d under the NCGMIC policy issued to Russell Harrell, regardless of whether he was Russell Harrell\u2019s employee, and NCGMIC is entitled to judgment as a matter of law. Summary judgment in favor of plaintiffs is reversed and this case is remanded to the trial court for entry of summary judgment in favor of defendant NCGMIC.\nReversed and remanded.\nJudges MCCULLOUGH and BIGGS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Gibbons, Cozart, Jones, Hughes, Sallenger & Taylor, by W. Earl Taylor, Jr., and Andrew J. Whitley, for plaintiff-appellees.", "Gabriel Berry & Weston, L.L.P., by Robert A. Wells; and Richmond G. Bernhardt, Jr., for defendant-appellant North Carolina Grange Mutual Insurance Company." ], "corrections": "", "head_matter": "ROBERTO CASTILLO TRUJILLO and WILLIAM LEWIS KING, Administrator of the Estate of PEDRO BELTRAN BORBONIO, Plaintiffs v. NORTH CAROLINA GRANGE MUTUAL INSURANCE CO. and HALIFAX MUTUAL INSURANCE CO., Defendants\nNo. COA00-1204\n(Filed 16 April 2002)\nInsurance\u2014 farm machine \u2014 not covered\nThe trial court erred by granting summary judgment for plaintiffs in a declaratory judgment action to determine whether defendant insurance companies provide coverage for a farm-worker injured by a cotton picker where three brothers shared the operation of their farms and there were factual issues as to whether the brothers were partners and as to who employed the person operating the machine, but there was no genuine issue of material fact that the machine was not a vehicle to which the policy applied.\nAppeal by defendant North Carolina Grange Mutual Insurance Company from order entered 9 June 2000 by Judge Frank R. Brown in Wilson County Superior Court. Heard in the Court of Appeals 23 August 2001.\nGibbons, Cozart, Jones, Hughes, Sallenger & Taylor, by W. Earl Taylor, Jr., and Andrew J. Whitley, for plaintiff-appellees.\nGabriel Berry & Weston, L.L.P., by Robert A. Wells; and Richmond G. Bernhardt, Jr., for defendant-appellant North Carolina Grange Mutual Insurance Company." }, "file_name": "0811-01", "first_page_order": 845, "last_page_order": 851 }