{ "id": 8915195, "name": "SOUTHERN FIRE & CASUALTY COMPANY, Plaintiff v. KIRBY'S GARAGE, INC., d/b/a KIRBY'S TOWING, Defendant", "name_abbreviation": "Southern Fire & Casualty Co. v. Kirby's Garage, Inc.", "decision_date": "2004-01-06", "docket_number": "No. COA02-1539", "first_page": "124", "last_page": "129", "citations": [ { "type": "official", "cite": "162 N.C. App. 124" } ], "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": "446 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522456 ], "year": 1994, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0110-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "522" }, { "page": "522-23" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "354" }, { "page": "355" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "453 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "869", "parenthetical": "citations omitted" }, { "page": "869" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916415 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "51", "parenthetical": "citations omitted" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0044-01" ] }, { "cite": "467 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795937 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0482-01" ] }, { "cite": "444 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125974 ], "year": 1994, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0193-01" ] } ], "analysis": { "cardinality": 482, "char_count": 11540, "ocr_confidence": 0.75, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21238458303939728 }, "sha256": "6430a8e4c3fe753b621cd6ad27847258011392e4962cc1b943fc8e345488eacd", "simhash": "1:cec95760277f04bd", "word_count": 1789 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and GEER concur." ], "parties": [ "SOUTHERN FIRE & CASUALTY COMPANY, Plaintiff v. KIRBY\u2019S GARAGE, INC., d/b/a KIRBY\u2019S TOWING, Defendant" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nThis appeal arises from an action for declaratory judgment to construe the terms of an insurance policy.\nThe record tends to establish the following facts: On 18 December 1996, Southern Fire & Casualty Company (\u201cSouthern\u201d) issued a commercial auto insurance policy to Kirby\u2019s Garage, Inc. (\u201cKirby\u2019s\u201d), covering seven tow trucks. On 23 June 1997, during the coverage period of the policy, one of Kirby\u2019s tow trucks was damaged when it was hit from behind by a truck negligently driven by Anthony J. Padgett. Padgett\u2019s truck was insured by Travelers Insurance Co. (\u201cTravelers\u201d). Although Kirby\u2019s damages totaled $33,759.84 ($13,759.84 for property damage and $20,000.00 for loss of use), Padgett\u2019s policy limited coverage to $25,000.00. Padgett subsequently admitted liability and Travelers tendered payment to Kirby\u2019s in the full amount of Padgett\u2019s policy. Kirby\u2019s sought to recover the balance ($8,759.84) from Southern by filing a claim against the underinsured motorist provisions of its policy with Southern.\nThe schedule of coverages on the \u201cBusiness Auto Coverage Form\u201d included in Kirby\u2019s policy indicates a policy limit, i.e., the most Southern will pay for any one loss or accident involving a covered auto, in the amount of $1 million. The schedule further indicates that coverage in this amount extends to (1) liability, (2) uninsured motorists and (3) underinsured motorists. Kirby\u2019s policy also included an endorsement entitled \u201cNorth Carolina Uninsured Motorist Form.\u201d This endorsement, which expressly states that it \u201cmodifies\u201d the insurance provided under the \u201cBusiness Auto Coverage Form\u201d provides:\nA. Coverage\n1. We will pay all sums the \u201cinsured\u201d is legally entitled to recover as compensatory damages from the owner or driver of:\na. An \u201cuninsured motor vehicle\u201d because of \u201cbodily injury\u201d sustained by the \u201cinsured\u201d and caused by an \u201caccident,\u201d and\nb. An \u201cuninsured motor vehicle\u201d as defined in Paragraphs a. and c. of the definition of \u201cuninsured motor vehicle\u201d because of \u201cproperty damage\u201d caused by an \u201caccident.\u201d\nF. Additional Definitions\nAs used in this endorsement:\n4. \u201cUninsured motor vehicle\u201d means a land motor vehicle or trailer:\na. For which neither a bond or policy nor cash or securities on file with the North Carolina Commissioner of Motor Vehicles provides at least the amounts required by the North Carolina Motor Vehicle Safety and Responsibility Act;\nb. That is an underinsured motor vehicle. An underin-sured motor vehicle is a motor vehicle or trailer for which the sum of all bodily injury liability bonds or policies at the time of an \u201caccident\u201d provides at least the amounts required by the North Carolina Motor Vehicle Safety and Responsibility Act but their limits are either:\n(1) Less than the limits of underinsured motorists coverage applicable to a covered \u201cauto\u201d that you own involved in the \u201caccident\u201d; or\n(2) Less than the limits of this coverage, if a covered \u201cauto\u201d that you own is not involved in the \u201caccident\u201d; or\nc. For which the insuring or bonding company denies coverage or is or becomes insolvent; or\nd. That is a hit-and-run vehicle causing \u201cbodily injury\u201d to an \u201cinsured\u201d and neither the driver nor owner can be identified. The vehicle must hit an \u201cinsured,\u201d a covered \u201cauto\u201d or a vehicle an \u201cinsured\u201d is \u201coccupying.\u201d\n(Emphasis in original).\nSouthern denied coverage. Citing paragraph A.l.b. of the uninsured motorist endorsement, Southern contended that Kirby\u2019s policy did not cover property damage caused by underinsured motorists. On 31 May 2001, Southern filed this action in New Hanover County Superior Court, seeking a declaration that Kirby\u2019s policy with Southern did not cover property damage caused by underinsured motorists. The trial court concluded that the policy language relating to underinsured motorist coverage was ambiguous and that this ambiguity was compounded by the schedule of coverage, which purported to cover losses caused by underinsured motorists, without limitation, up to the $1 million policy limit. Consequently, the trial court construed the policy against Southern and in favor of coverage. Southern appeals.\nSouthern contends that the trial court erred by concluding that the policy was ambiguous and by construing the policy to cover property damage caused by underinsured motorists. We agree.\n\u201cIn interpreting insurance policies, our appellate courts have established several rules of construction. Of these, the most fundamental rule is that the language of the policy controls.\u201d Nationwide Mut. Ins. Co. v. Mabe, 115 N.C. App. 193, 198, 444 S.E.2d 664, 667 (1994), aff'd, 342 N.C. 482, 467 S.E.2d 34 (1996).\n[W]hen an insurance policy contains ambiguous provisions, this Court will resolve the ambiguity against the insurance company-drafter, and in favor of coverage. On the other hand, if a contract of insurance is not ambiguous, \u201cthe court must enforce the policy as written and may not reconstruct it under the guise of interpreting an ambiguous provision.\u201d\nLedford v. Nationwide Mut. Ins. Co., 118 N.C. App. 44, 51, 453 S.E.2d 866, 869 (1995) (citations omitted).\n\u201c[A]mbiguity in the terms of an insurance policy is not established by the mere fact that the plaintiff makes a claim based upon a construction of its language which the company asserts is not its meaning.\u201d Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). \u201c \u2018[Language in an insurance contract is ambiguous only if the language is \u2018fairly and reasonably susceptible to either of the constructions for which the parties contend.\u201d \u201d Ledford, 118 N.C. App. at 51, 453 S.E.2d at 869 (quoting Watlington v. North Carolina Farm Bureau, 116 N.C. App. 110, 112, 446 S.E.2d 614, 616 (1994)) (citation omitted) (emphasis added).\nAfter careful review of the policy at issue, we conclude there is but one fair and reasonable construction of the language relating to underinsured motorists. Accordingly, we hold that the trial court erred by concluding the terms of the policy were ambiguous.\nWe begin our analysis by noting that \u201cexclusions from, conditions upon and limitations of undertakings by the company, otherwise contained in the policy, are to be construed strictly so as to provide the coverage, which would otherwise be afforded by the policy.\u201d Wachovia, 276 N.C. at 355, 172 S.E.2d at 522-23. Here, the schedule of coverages in the Business Auto Coverage Form purports to provide uninsured motorist coverage, without limitation, in the full amount of the policy. However, the uninsured motorist endorsement expressly states that it \u201cmodifies\u201d the insurance provided by the \u201cBusiness Auto Coverage Form.\u201d Therefore, in determining what insurance is provided by the policy, the terms of the uninsured motorist endorsement must be construed strictly.\nWe further note that \u201c[w]hen the policy contains a definition of a term used in it, this is the meaning which must be given to that term wherever it appears in the policy, unless the context clearly requires otherwise.\u201d Wachovia, 276 N.C. at 354, 172 S.E.2d at 522. Here, the policy specifically defines the term \u201cuninsured motor vehicle.\u201d Therefore, by virtue of paragraph F.4.b., the term \u201cuninsured motor vehicle\u201d must include an \u201cunderinsured motor vehicle,\u201d wherever the term is used in the policy, unless the context provides otherwise. With these principles in mind, we now consider whether the language of the policy is ambiguous.\nParagraph A.l.a. of the uninsured motorist endorsement states that Southern will pay all sums that Kirby\u2019s would be legally entitled to recover as compensatory damages, for \u201cbodily injury\u201d caused by an accident with an \u201cuninsured motor vehicle.\u201d Since nothing in the context of this provision requires that a different meaning be given to the term \u201cuninsured motor vehicle,\u201d we must give the term the meaning provided in the policy. Applying the relevant definition, we conclude this portion of the policy (paragraph A.l.a.) unambiguously provides coverage for any compensatory damages Kirby\u2019s would be entitled to recover for \u201cbodily injury,\u201d up to the $1 million policy limit, caused by either an uninsured or underinsured motor vehicle. Since this portion of the policy is not ambiguous, it must be enforced as written.\nMuch like the preceding paragraph, paragraph A.l.b. of the endorsement states that Southern will pay all sums that Kirby\u2019s would be legally entitled to recover as compensatory damages for \u201cproperty damage\u201d caused by an accident with an \u201cuninsured motor vehicle.\u201d However, this paragraph further specifies that the definition of \u201cuninsured motor vehicle\u201d includes only paragraphs \u201ca.\u201d and \u201cc.\u201d of the definition provided in the policy. Unlike paragraph A.l.a., the context in which the term \u201cuninsured motor vehicle\u201d is used here indicates clearly that another definition applies to this provision. We conclude that for purposes of construing this provision, the term \u201cuninsured motor vehicle\u201d means only a vehicle (1) for which there is no insurance on file with the Commissioner of Motor Vehicles, or (2) for which the insuring company becomes insolvent. Neither \u201cunderin-sured\u201d motor vehicles defined by paragraph \u201cb.\u201d nor \u201chit-and-run\u201d vehicles defined by paragraph \u201cd.\u201d of the definition provided in the policy are included within this definition of \u201cuninsured motor vehicle.\u201d Applying this definition, we conclude this portion of the policy (paragraph A.l.b.) provides coverage for any compensatory damages Kirby\u2019s would be entitled to recover for \u201cproperty damage,\u201d up to the $1 million policy limit, but only when caused by an accident with an uninsured motorist as defined in paragraphs F.4.a. and F.4.c.\nIn the instant case, the damage to Kirby\u2019s truck falls under paragraph A.l.b. of the uninsured motorist endorsement. Furthermore, Padgett\u2019s car may only be considered an \u201cuninsured motor vehicle\u201d under the policy if paragraph F.4.b. remains in the definition. Since paragraph A.l.b. specifically exempts paragraph F.4.b. from the definition of \u201cuninsured motor vehicle,\u201d Kirby\u2019s may not recover the balance of its damages from Southern.\nNothing in the schedule of coverages changes this outcome. The schedule of coverage states only \u201cthe most [Southern] will pay for any one accident or loss.\u201d The uninsured motorist endorsement provides all the pertinent policy language with respect to the coverage of uninsured motor vehicles. Furthermore, both the schedule of coverages and the uninsured motorist endorsement expressly provide that the insurance declarations in the schedule are modified by the endorsement.\nAccordingly, the decision of the trial court is hereby reversed and this matter is remanded to the New Hanover County Superior Court for entry of judgment not inconsistent with this opinion.\nReversed and remanded.\nJudges HUNTER and GEER concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Hedrick, Blackwell & Morton, L.L.P., by B. Danforth Morton, for plaintiff-appellant.", "No brief filed on behalf of defendant-appellee." ], "corrections": "", "head_matter": "SOUTHERN FIRE & CASUALTY COMPANY, Plaintiff v. KIRBY\u2019S GARAGE, INC., d/b/a KIRBY\u2019S TOWING, Defendant\nNo. COA02-1539\n(Filed 6 January 2004)\nInsurance\u2014 commercial automobile policy \u2014 UM endorsement \u2014 inapplicable to property damage\nThe uninsured motorist endorsement to a commercial automobile insurance policy did not provide underinsured motorist coverage for property damage to one of the insured\u2019s vehicles.\nAppeal by plaintiff from judgment entered 2 October 2002 by Judge Ernest Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 27 October 2003.\nHedrick, Blackwell & Morton, L.L.P., by B. Danforth Morton, for plaintiff-appellant.\nNo brief filed on behalf of defendant-appellee." }, "file_name": "0124-01", "first_page_order": 152, "last_page_order": 157 }