{ "id": 8958107, "name": "MELISSA REGISTER, Plaintiff v. STEVE ALLEN WHITE, Defendant", "name_abbreviation": "Register v. White", "decision_date": "2003-10-21", "docket_number": "No. COA02-1585", "first_page": "657", "last_page": "664", "citations": [ { "type": "official", "cite": "160 N.C. App. 657" } ], "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": "582 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "158 N.C. App. 743", "category": "reporters:state", "reporter": "N.C. App.", "year": 2003, "opinion_index": 0 }, { "cite": "428 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525721 ], "year": 1993, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0451-01" ] }, { "cite": "437 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520727 ], "year": 1993, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0089-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(16)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(3)(a)" }, { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "426 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "453", "parenthetical": "quoting Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981)" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524720 ], "year": 1993, "pin_cites": [ { "page": "156", "parenthetical": "quoting Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0152-01" ] }, { "cite": "481 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "355" }, { "page": "356" }, { "page": "356", "parenthetical": "in favor of coverage" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868603 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "452-53" }, { "page": "454" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0443-01" ] }, { "cite": "112 S.E. 417", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "183 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657862 ], "year": 1922, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0652-01" ] }, { "cite": "429 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "185", "parenthetical": "quoting Miller v. Green, 183 N.C. 652, 654, 112 S.E. 417, 418 (1922)" }, { "page": "185", "parenthetical": "a latent ambiguity is where the words appear clear until facts make application of those words \"impracticable\"" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 78", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524810 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "81", "parenthetical": "quoting Miller v. Green, 183 N.C. 652, 654, 112 S.E. 417, 418 (1922)" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0078-01" ] }, { "cite": "347 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "317 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771766 ], "year": 1986, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0623-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "year": 1978, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "390 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "153", "parenthetical": "quoting Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978)" }, { "page": "153" }, { "page": "153" }, { "page": "153", "parenthetical": "in favor of the insured" } ], "opinion_index": 0 }, { "cite": "326 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307211 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "392", "parenthetical": "quoting Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978)" }, { "page": "393" }, { "page": "392" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0387-01" ] }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "24-25" }, { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "876", "parenthetical": "quoting Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785 (1983)" }, { "page": "876", "parenthetical": "internal citations omitted" }, { "page": "877", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "229", "parenthetical": "quoting Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785 (1983)" }, { "page": "229" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "414 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "331 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499908 ], "year": 1992, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0088-01" ] }, { "cite": "329 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "regarding waiver and time limitation" } ], "opinion_index": 0 }, { "cite": "313 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726125 ], "year": 1985, "pin_cites": [ { "parenthetical": "regarding waiver and time limitation" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0442-01" ] }, { "cite": "573 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "658-59", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250200 ], "year": 2002, "pin_cites": [ { "page": "356", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0353-01" ] }, { "cite": "582 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954324 ], "year": 2003, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0120-01" ] }, { "cite": "497 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "120", "parenthetical": "regarding waiver" }, { "page": "121" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648368 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "86" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0084-01" ] } ], "analysis": { "cardinality": 765, "char_count": 16162, "ocr_confidence": 0.764, "pagerank": { "raw": 5.638153094102574e-08, "percentile": 0.35217207644152226 }, "sha256": "1ed5e623612989cfa8570e61d9902791b0e3e8b04b1374ecfad5c3e40ef49716", "simhash": "1:0dc151ea4da72cba", "word_count": 2573 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "MELISSA REGISTER, Plaintiff v. STEVE ALLEN WHITE, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nMelissa Register (\u201cplaintiff\u2019) appeals the 5 August 2002 order denying her motion to compel arbitration. Since we find plaintiff\u2019s claim was not barred by the applicable statute of limitations and plaintiff did not waive her right to arbitration, we reverse.\nOn 30 June 1998, plaintiff was involved in an automobile accident while riding as a passenger in Steve Allen White\u2019s (\u201cdefendant\u201d) car. Thereafter, plaintiff filed suit against defendant. On 8 August 2001, defendant\u2019s insurance company tendered the full limits of its policy, $50,000.00, to plaintiff. On 24 September 2001, plaintiff demanded arbitration with unnamed defendant, North Carolina Farm Bureau Insurance Company (\u201cFarm Bureau\u201d), who provided underinsured motorist coverage (\u201cUIM\u201d) to plaintiff. The trial court held \u201c[p]laintiff failed to demand arbitration of Farm Bureau Insurance of North Carolina, Inc. within the time allowed by contract, thus, barring her claim for arbitration.\u201d The court further concluded, pursuant to the factors in Sullivan v. Bright, 129 N.C. App. 84, 497 S.E.2d 118 (1998), plaintiff waived her right to arbitration. We disagree.\nAlthough an order denying arbitration is interlocutory, the parties do not dispute it is immediately appealable because it involves a substantial right that might be lost were the right to appeal delayed. Park v. Merrill Lynch, 159 N.C. App. 120, 122, 582 S.E.2d 375, 377 (2003). Therefore, we properly have jurisdiction to consider plaintiff\u2019s appeal.\n\u201cIn considering a motion to compel arbitration, the trial court must determine (1) whether the parties have a valid agreement to arbitrate, and (2) whether the subject in dispute is covered by the arbitration agreement. The trial court\u2019s conclusion is reviewable de novo by this Court.\u201d Brevorka v. Wolfe Constr., Inc., 155 N.C. App. 353, 356, 573 S.E.2d 656, 658-59 (2002) (internal citations omitted). In determining whether an enforceable agreement exists, the court considers whether the parties have waived their contractual right to arbitrate and whether the demand for arbitration was timely. Sullivan, 129 N.C. App. at 86, 497 S.E.2d at 120 (regarding waiver); Adams v. Nelsen, 313 N.C. 442, 329 S.E.2d 322 (1985) (regarding waiver and time limitation). The trial court concluded a valid contract existed and provided for arbitration, but that plaintiff failed to demand arbitration within the time limit set forth in the contract, and, alternatively, she waived her right to arbitration by taking advantage of judicial discovery procedures.\n\u201cNorth Carolina has a strong public policy favoring the settlement of disputes by arbitration. Our strong public policy requires that the courts resolve any doubts concerning the scope of arbitrable issues in favor of arbitration.\u201d Johnston County v. R. N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992). This rule applies \u201c \u2018 \u201cwhether the problem at hand is the construction of the contract language itself or an allegation of waiver[,]\u201d \u2019 \u201d the issues we now consider. Id., (quoting Cyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984) (quoting Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785 (1983))).\nI. Time Limitation\nPlaintiff asserts the trial court erred in concluding she failed to assert her right to arbitration of her UIM coverage from Farm Bureau within the time limitation provided in the contract. We agree.\nAn insurance policy is a contract and \u201cits provisions govern the rights and duties of the parties thereto. \u2018As with all contracts, the goal of construction is to arrive at the intent of the parties when the policy was issued.\u2019 \u201d Brown v. Lumbermens Mut. Casualty Co., 326 N.C. 387, 392, 390 S.E.2d 150, 153 (1990) (quoting Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978)). \u201c \u2018All parts of a contract are to be given effect if possible. It is presumed that each part of the contract means something.\u2019 \u201d Brown, 326 N.C. at 393, 390 S.E.2d at 153 (quoting Bolton Corp. v. T. A. Loving Co., 317 N.C. 623, 628, 347 S.E.2d 369, 372 (1986)). However, \u201c \u2018[a] latent ambiguity may arise where the words of a written agreement are plain, but by reason of extraneous facts the definite and certain application of those words is found impracticable.\u2019 \u201d Jefferson-Pilot Life Ins. Co. v. Smith Helms Mulliss & Moore, 110 N.C. App. 78, 81, 429 S.E.2d 183, 185 (1993) (quoting Miller v. Green, 183 N.C. 652, 654, 112 S.E. 417, 418 (1922)).\n\u201c[T]he meaning of ambiguous language within an insurance policy is a question of law for the court.\u201d Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 452-53, 481 S.E.2d 349, 355 (1997). \u201cAny ambiguity in the policy language must be resolved against the insurance company and in favor of the insured.\u201d Brown, 326 N.C. at 392, 390 S.E.2d at 153. \u201cFurther, as our courts are not favorably disposed toward provisions limiting the scope of coverage, exclusions are \u2018 \u201cto be strictly construed to provide the coverage which would otherwise be afforded by the policy.\u201d \u2019 \u201d Markham, 125 N.C. App. at 454, 481 S.E.2d at 356 (quoting Durham City Bd. of Education v. National Union Fire Ins. Co., 109 N.C. App. 152, 156, 426 S.E.2d 451, 453 (1993) (quoting Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981))).\nWith these principals in mind we turn to the issue of time limitation in the case at bar. Plaintiff sought to enforce the UIM provision of the insurance contract, which provides:\nWe will also pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by an insured caused by an accident. The owner\u2019s or operator\u2019s liability for these damages must arise out of the ownership, maintenance or use of the underinsured motor vehicle. We will pay for these damages only after the limits of liability under any applicable liability bonds or policies have been exhausted by payments of judgments or settlements. . . .\nTherefore, an insured may seek UIM coverage only after the liability policy has paid to the full extent of its limits. The policy language tracks the statutory language of N.C. Gen. Stat. \u00a7 20-279.21(b)(4) which explains UIM coverage. To enforce this provision, the contract further provided, \u201cthe insured may demand to settle the dispute by arbitration.\u201d Finally, the contract provided the following time limitation for demanding arbitration: \u201c[a]ny arbitration action against the company must begin within the time limit allowed for bodily injury or death actions in the state where the accident occurred.\u201d This language is precisely as required by the North Carolina Rate Bureau in Rate Bureau Amendatory Endorsement NC 00 09 (Ed. 5-94) for personal auto policies. Since the accident in the case at bar occurred in North Carolina, a three-year time limit is applicable and begins when the bodily harm reasonably should have become, or actually became, apparent. N.C. Gen. Stat. \u00a7 1-52(16) (2001).\nThe terms of the contract, on their face, appear plain and enforceable. The coverage provision states that UIM insurance is triggered only when the liability policy has been exhausted; the arbitration provision provides plaintiff must demand arbitration of a UIM claim within the time limit for bodily injury claims. Farm Bureau asserts there is no ambiguity because the three-year limitation is an independent provision, and an insured must demand arbitration of the UIM coverage regardless of whether her right thereto has arisen. We disagree.\nIn considering the interaction between the UIM and arbitration provisions of an identical insurance contract, this Court held a plaintiffs arbitration rights do not arise until her right to UIM coverage arises, which is when she is offered a settlement for the full extent of the liability policy. Hackett v. Bonta, 113 N.C. App. 89, 97, 437 S.E.2d 687, 692 (1993). Therefore, a plaintiffs right to demand arbitration for UIM coverage does not arise until the liability insurer offers a settlement exhausting its limits. Since the insured\u2019s right to arbitration of UIM coverage is dependent upon a full settlement from the liability insurer, and such a settlement may occur after the three-year time limitation has expired, a latent ambiguity exists regarding the time limitation for demanding arbitration. See Jefferson-Pilot, 110 N.C. App. at 81, 429 S.E.2d at 185 (a latent ambiguity is where the words appear clear until facts make application of those words \u201cimpracticable\u201d). A latent ambiguity must be resolved in favor of the insured and providing coverage. See Brown, 326 N.C. at 392, 390 S.E.2d at 153 (in favor of the insured); Markham, 125 N.C. App. at 454, 481 S.E.2d at 356 (in favor of coverage). Moreover, \u201c[i]n no event can the limitations period begin to run until the injured party is at liberty to sue.\u201d Glover v. First Union National Bank, 109 N.C. App. 451, 455, 428 S.E.2d 206, 208 (1993). We see no reason to distinguish arbitration, and hold this rule also applies to injured parties who have foregone their right to sue in favor of arbitration. We hold a UIM insured\u2019s right to demand arbitration arises when the liability insurer has offered a settlement exhausting its coverage, and only once this right has arisen may the time limitation for demanding arbitration commence.\nApplying this rule in the case at bar, plaintiff\u2019s right to demand arbitration did not arise when she was injured on 30 June 1998, but rather arose on 8 August 2001, and therefore she timely demanded arbitration on 24 September 2001. We find the trial court erred in determining plaintiff\u2019s claim was time barred before her right to pursue compensation from Farm Bureau vested.\nII. Waiver\nPlaintiff also asserts the trial court erred in determining she waived her right to arbitration by \u201ct[aking] advantage of judicial discovery procedures not available in arbitration\u201d and that Farm Bureau \u201cexpended significant amounts of money\u201d on behalf of defendant in the underlying action.\nOur Supreme Court has explained:\nWaiver of a contractual right to arbitration is a question of fact. Because of the strong public policy in North Carolina favoring arbitration, courts must closely scrutinize any allegation of waiver of such a favored right. Because of the reluctance to find waiver, we hold that a party has impliedly waived its contractual right to arbitration if by its delay or by actions it takes which are inconsistent with arbitration, another party to the contract is prejudiced by the order compelling arbitration.\nCyclone Roofing Co., 312 N.C. at 229, 321 S.E.2d at 876 (internal citations omitted). Examples of such prejudice include, \u201ca party\u2019s opponent takes advantage of judicial discovery procedures not available in arbitration; or, by reason of delay, a party has taken steps in litigation to its detriment or expended significant amounts of money thereupon. . . Id., 312 N.C. at 230, 321 S.E.2d at 877 (internal citations omitted). The questions presented are: (1) whether plaintiff has taken actions which are inconsistent with arbitration; and (2) whether Farm Bureau was prejudiced by such actions. Id. Since we find plaintiff has taken no action inconsistent with her right to arbitration, we need not reach the issue of prejudice.\nFarm Bureau asserts plaintiffs suit against defendant was inconsistent with her arbitration rights because plaintiff availed herself of discovery unavailable in arbitration and Farm Bureau expended significant funds to defend the suit. However, the suit was necessary for plaintiff to enforce her rights against the liability insurer, and Farm Bureau voluntarily exercised its right to appear in the lawsuit. N.C. Gen. Stat. \u00a7 20-279.21(b)(3)(a) (2001). Plaintiffs right to arbitration cannot be waived by a UIM carrier\u2019s choice to participate in litigation brought to pursue the liability policy claim. Moreover, in determining the issue of waiver raised by a UIM carrier, our Court has considered only those actions by plaintiff in the existing lawsuit occurring after the liability insurer tendered its full coverage upon settlement of the liability policy. Sullivan, 129 N.C. App. at 87, 497 S.E.2d at 121. In the case at bar, following the liability carrier\u2019s settlement, plaintiff promptly ceased pursuing litigation and demanded arbitration of her UIM coverage pursuant to her contract with Farm Bureau. Therefore, we find plaintiff in no way acted inconsistently with her right for arbitration. Accordingly, we hold the trial court erred finding plaintiff waived her arbitration rights.\nWe reverse the order of the trial court and remand with instructions to enter an order compelling arbitration.\nReversed and remanded.\nJudges McGEE and HUNTER concur.\n. \u201cUnderinsured motorist coverage is deemed to apply when, by reason of payment of judgment or settlement, all liability bonds or insurance policies providing coverage for bodily injury caused by the ownership, maintenance, or use of the underinsured highway vehicle have been exhausted.\u201d N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2001).\n. The endorsement amended the Personal Auto Policies NC 00 01, for those written on or after 1 May 1994. The new arbitration provision was required to either be attached or incorporated into a company\u2019s policy. See George L. Simpson, III, North Carolina Uninsured and Underinsured Motorist Insurance, 2002 Edition: A Handbook, App. G (2002).\n. This argument conflicts with George L. Simpson, III, North Carolina Uninsured and Underinsured Motorist Insurance, 2002 Edition: A Handbook, 256-57 (2002), which explains that since an insured may demand arbitration only after the liability policy has been exhausted, the insured may not demand arbitration before the insurer tenders its limits.\n. We find the factual distinction in Hackett, that one insurance company provided both the liability and the UIM insurance, immaterial. In Hackett, the Court held plaintiff\u2019s arbitration rights under the UIM policy were triggered when State Farm offered to settle both claims for more than the limits on the liability policy, because only then could plaintiff reasonably assume the limits of the liability policy were exhausted. We apply the same rule here, where two different insurance companies provide the liability and UIM coverage.\n. No issue of notice arises since the contract provides the insured must notify the insurer \u201cpromptly of how, when and where the accident or loss happened.\u201d\n. We note our analysis is distinct from that utilized by this Court in its recent unpublished opinion Carter v. Cook, 158 N.C. App. 743, 582 S.E.2d 82 (2003). Since this opinion was not published it has no precedential value and we need not address it further.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Duffus & Melvin, P.A., by J. David Duffus, Jr., and Benjamin E. Waller, for plaintiff-appellant.", "Harris, Creech, Ward and Blackerby, P.A., by Charles E. Simpson, Jr., and Joseph E. Elder, for unnamed defendant-appellee." ], "corrections": "", "head_matter": "MELISSA REGISTER, Plaintiff v. STEVE ALLEN WHITE, Defendant\nNo. COA02-1585\n(Filed 21 October 2003)\n1. Appeal and Error\u2014 appealability \u2014 order denying arbitration\nAn order denying arbitration is immediately appealable.\n2. Arbitration\u2014 time for demanding \u2014 UIM insurance \u2014 exhaustion of liability coverage\nA UIM claimant\u2019s right to demand arbitration arises when the liability insurer has offered a settlement exhausting its coverages, and the time limitation for demanding arbitration begins when the right has arisen rather than when the injury occurred. The trial court erred in this case by concluding that plaintiffs demand for arbitration was not timely.\n3. Arbitration\u2014 UIM claim \u2014 underlying liability suit \u2014 not inconsistent with arbitration\nA UIM claimant\u2019s suit against the driver of a car in which she was injured was not inconsistent with her right to arbitrate her UIM claim, and she did not waive arbitration by taking advantage of discovery procedures not available in arbitration.\nAppeal by plaintiff from order entered 5 August 2002 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 11 September 2003.\nDuffus & Melvin, P.A., by J. David Duffus, Jr., and Benjamin E. Waller, for plaintiff-appellant.\nHarris, Creech, Ward and Blackerby, P.A., by Charles E. Simpson, Jr., and Joseph E. Elder, for unnamed defendant-appellee." }, "file_name": "0657-01", "first_page_order": 687, "last_page_order": 694 }