{ "id": 8300909, "name": "ENTERPRISE LEASING COMPANY SOUTHEAST, d/b/a ENTERPRISE RENT-A-CAR, Plaintiff v. ANGELA WILLIAMS, Defendant and Third-Party Plaintiff v. VIRGINIA L. WILLIAMS and DISCOVERY INSURANCE CO., Third-Party Defendants", "name_abbreviation": "Enterprise Leasing Co. Southeast v. Williams", "decision_date": "2006-04-04", "docket_number": "No. COA05-865", "first_page": "64", "last_page": "73", "citations": [ { "type": "official", "cite": "177 N.C. App. 64" } ], "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": "243 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "897" }, { "page": "153", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560959 ], "year": 1978, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0039-01" ] }, { "cite": "541 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "776", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440177 ], "year": 2001, "pin_cites": [ { "page": "188", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0183-01" ] }, { "cite": "347 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732310 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0259-01" ] }, { "cite": "333 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "561", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527503 ], "year": 1985, "pin_cites": [ { "page": "484", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0481-01" ] }, { "cite": "366 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "322 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517981 ], "year": 1988, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0077-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "522", "parenthetical": "citation omitted" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "354", "parenthetical": "citation omitted" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "777" }, { "page": "777", "parenthetical": "\"The various terms of the policy are to be harmoniously construed, and if possible, every word and every provision is to be given effect.\"" }, { "page": "777" }, { "parenthetical": "in construing the terms of an insurance policy, \"the various terms of the policy are to be harmoniously construed\"" } ], "opinion_index": 0 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "505" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "390 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "153", "parenthetical": "citation omitted" }, { "page": "153", "parenthetical": "citation omitted" }, { "page": "153" } ], "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": "citation omitted" }, { "page": "392" }, { "page": "392" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0387-01" ] }, { "cite": "346 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697093, 4703166 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0386-02", "/nc/316/0386-01" ] }, { "cite": "340 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "377" }, { "page": "377", "parenthetical": "citation omitted" }, { "page": "377", "parenthetical": "citations and footnotes omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720126 ], "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0688-01" ] }, { "cite": "527 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091602 ], "year": 2000, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0001-01" ] } ], "analysis": { "cardinality": 850, "char_count": 20610, "ocr_confidence": 0.742, "pagerank": { "raw": 5.104541093181089e-08, "percentile": 0.3206951447748498 }, "sha256": "646f1055361bf29cf125928ffa6b872942947b3604515048799920c917ade705", "simhash": "1:8661f56e8c5d94d6", "word_count": 3268 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "ENTERPRISE LEASING COMPANY SOUTHEAST, d/b/a ENTERPRISE RENT-A-CAR, Plaintiff v. ANGELA WILLIAMS, Defendant and Third-Party Plaintiff v. VIRGINIA L. WILLIAMS and DISCOVERY INSURANCE CO., Third-Party Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant and Third-Party Plaintiff Angela Williams (\u201cAngela\u201d) . appeals the trial court\u2019s 16 March 2005 order (\u201cthe Order\u201d) granting summary judgment in favor of Third-Party Defendant Discovery Insurance Company (\u201cDiscovery\u201d). For the reasons discussed herein, we affirm the trial court.\nPertinent factual and procedural history includes the following: In January 2004, Third-Party Defendant Virginia Williams (\u201cVirginia\u201d) arranged to rent an automobile from Plaintiff Enterprise Leasing Company d/b/a Enterprise Rent-A-Car (\u201cEnterprise\u201d). On 18 January 2004, Virginia was driven by her sister-in-law Angela to a Charlotte, North Carolina, branch of Enterprise to pick up the rented vehicle.\nEnterprise rental agent Carolyne Westfall (\u201cWestfall\u201d) handled Virginia\u2019s reservation. After Westfall prepared a rental agreement containing Virginia\u2019s name, address, telephone numbers, and other personal information, Virginia presented a credit card to Westfall for payment of the rental charge. However, Virginia\u2019s credit card was denied, and Westfall thereupon refused to rent her the vehicle.\nUpon retrieving a credit card from her automobile, Angela offered to pay the rental charge. Westfall declined, explaining it was required that Angela be designated as \u201cRenter\u201d of the vehicle if she made payment. However, Westfall continued, Angela could list Virginia as an additional driver of the rented vehicle for an additional fee. According to Westfall, \u201cAngela and Virginia then had a conversation, during which Virginia specifically stated to Angela, \u2018I\u2019ll just drive your car.\u2019 \u201d\nAngela thereafter informed Westfall she wished to rent a vehicle in her name, but did not want to list Virginia as an additional driver. Westfall then erased Virginia\u2019s personal information from the rental agreement (\u201cthe Agreement\u201d) and inserted Angela\u2019s address, telephone numbers, driver\u2019s license number and expiration date, and date of birth. However, Westfall failed to replace Virginia\u2019s name with that of Angela on the Agreement. Nevertheless, Angela reviewed the Agreement, initialed and signed it in the spaces designated \u201cRenter,\u201d and provided her credit card in payment of the rental charges. Westfall then accompanied Angela outside, where the latter walked around the rental vehicle to examine it. She then signed the portion of the Agreement indicating the vehicle was in good condition. Angela departed the Enterprise lot driving the rental vehicle and Virginia drove Angela\u2019s personal vehicle off the Enterprise lot.\nOn 20 January 2004, Virginia was driving the rented vehicle on Interstate Highway 85 while returning to Charlotte from Raleigh. She accidently collided with a vehicle owned and operated by Thomas Matthew Snodgrass, causing substantial damage to both automobiles. Angela was not in the rented vehicle at the time, and Virginia was cited by the investigating officer for her \u201cfailure to reduce speed\u201d to avoid the collision.\nAngela was the named insured under a personal automobile insurance policy (\u201cthe Policy\u201d) issued by Discovery and in effect on the date of the accident. Angela subsequently received written notification from Southern Adjusters (\u201cSouthern\u201d) on 3 March 2004 that, under the terms of the Policy, Discovery was not required to provide her with either liability coverage for the accident or physical damage coverage for the vehicle. On 1 April 2004, Enterprise wrote Angela that she was \u201clegally liable for [a total of $11,175.32 in] damages and other related expenses\u201d arising out of the collision.\nEnterprise filed the instant complaint 4 June 2004 in Mecklenburg County District Court, alleging Angela\u2019s \u201callowance of an unauthorized driver to operate the rental automobile without [the] written consent [of Enterprise] constitute [d] a breach of contract\u201d entitling Enterprise to $11,175.32 in damages as well as counsel fees. In her 17 August 2004 Answer and Third-Party Complaint, Angela admitted she \u201csigned and initialed\u201d the Agreement and that \u201csome of the information recorded\u201d upon it \u201crelates to her.\u201d However, Angela claimed \u201cthis action was taken by her\u201d and \u201cthis information was provided by her\u201d at the request of Enterprise \u201cfor the sole benefit and purpose of allowing [Westfall] to complete and process the Rental Agreement between Enterprise and [Virginia].\u201d Angela further alleged Enterprise was \u201caware [she] only intended to guarantiee] payment by [Virginia] of the rental fees under the Rental Agreement,\u201d and denied she was the \u201cRenter as defined by the Rental Agreement.\u201d By third-party cross-claims Angela asserted, inter alia, that Virginia\u2019s negligence caused the collision, that Discovery had a duty to defend Angela in the action, and that Angela was entitled to indemnity from both Discovery and Virginia. On 15 October 2004, Enterprise filed its Answer to the third-party complaint, denying the material allegations thereof and seeking transfer of the matter to superior court.\nSubsequent to a January 2004 entry of default judgment against Virginia, the case was ordered transferred to Mecklenburg County Superior Court on 2 February 2005. A hearing was conducted 15 March 2005. The trial court thereafter entered the Order granting Discovery\u2019s motion for summary judgment and denying that of Angela, concluding \u201cthere exists no genuine issue of material fact regarding [Discovery\u2019s] insurance policy\u201d and Discovery \u201chas no coverage for th[e] accident and no duty to defend.\u201d Angela appeals.\nPrior to reviewing the contentions of the parties, we note the instant appeal is interlocutory in that other claims remain outstanding in the trial court, notwithstanding dismissal of all claims involving Discovery by- virtue of the Order. In Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C. App. 1, 4, 527 S.E.2d 328, 331 (2000), however, this Court stated:\nthe duty to defend involves a substantial right to both the insured and the insurer. Accordingly, we conclude that the order of partial summary judgment on the issue of whether [the insurer] has a duty to defend [the insured] in the underlying action affects a substantial right that might be lost absent immediate appeal.\n(citations and quotation marks omitted). Angela\u2019s appeal therefore is properly before us.\nAngela argues the trial court erred in granting summary judgment in favor of Discovery. She insists genuine issues of material fact remain regarding both the question of coverage and Discovery\u2019s duty to defend under the Policy. Angela\u2019s arguments are unpersuasive.\n\u201cIn reviewing the propriety of summary judgment, the appellate court is restricted to assessing the record before it.\u201d Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 690, 340 S.E.2d 374, 377 (citation omitted), reh\u2019g denied, 316 N.C. 386, 346 S.E.2d 134 (1986). \u201cIf on the basis of that record it is clear that no genuine issue of material fact existed and that the movant was entitled to judgment as a matter of law, summary judgment was appropriately granted.\u201d Id. at 690, 340 S.E.2d at 377 (citation omitted).\nRegarding the correlation between the provisions of an insurance policy and the insurer\u2019s duty to defend its insured, our Supreme Court has previously stated that\n[generally speaking, the insurer\u2019s duty to defend the insured is broader than its obligation to pay damages incurred by events covered by a particular policy. An insurer\u2019s duty to defend is ordinarily measured by the facts as alleged in the pleadings; its duty to pay is measured by the facts ultimately determined at trial. When the pleadings state facts demonstrating that the alleged injury is covered by the policy, then the insurer has a duty to defend, whether or not the insured is ultimately liable. Conversely, when the pleadings allege facts indicating that the event in question is not covered, and the insurer has no knowledge that the facts are otherwise, then it is not bound to defend.\nId. at 691, 340 S.E.2d at 377 (citations and footnotes omitted).\n\u201cAn insurance policy is a contract and, unless overridden by statute, its provisions govern the rights and duties of the parties thereto.\u201d Brown v. Lumbermens Mut. Casualty Co., 326 N.C. 387, 392, 390 S.E.2d 150, 153 (1990) (citation omitted). \u201cAs with all contracts, the goal of construction is to arrive at the intent of the parties when the policy was issued.\u201d Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978). \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 (citation omitted). However,\n[n]o ambiguity . . . exists unless, in the opinion of the court, the language of the policy is fairly and reasonably susceptible to either of the constructions for which the parties contend. If it is not, the court must enforce the contract as the parties have made it and may not, under the guise of interpreting an ambiguous provision, remake the contract and impose liability upon the company which it did not assume and for which the policyholder did not pay.\nTrust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970) (citation omitted). Bearing these principles in mind, we proceed to an examination of the Policy to determine whether the trial court properly granted summary judgment on the issues of coverage and duty to defend.\nPart A of the Policy, entitled \u201cLiability Coverage,\u201d provides in pertinent part as follows:\nINSURING AGREEMENT\nWe will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident.... We will settle or defend, as we consider appropriate, any claim or suit asking for these damages.... We have no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy.\nEXCLUSIONS\nA. We do not provide Liability Coverage for any Insured:\n3. For property damage to property:\na. rented to;\nb. used by; or\nc. in the care of; that insured. . . .\n(emphasis in all policy provisions cited herein in original).\nTherefore, according to the express terms of the Policy, Discovery has no duty to defend Angela in any suit for property damage not covered under the Policy. More specifically, damage to property rented to the insured is excluded from coverage. Notwithstanding the foregoing, Angela baldly asserts \u201cthere remains the possibility that [she] would not be found the renter [of the vehicle damaged in the collision], in which case the exclusion [of the Policy] would not apply\u201d and Discovery \u201cwould have a duty to defend [her] pursuant to Part A of the Policy. This argument is'without merit.\nAs detailed above, coverage under the \u201cInsuring Agreement\u201d is expressly limited to \u201cproperty damage for which any insured becomes legally responsible because of an auto accident.\u201d Part A defines the term \u201cinsured\u201d in pertinent part as follows:\n1. You or any family member for the ownership maintenance or use of any auto or trailer.\nAccording to the \u201cDefinitions\u201d section of the Policy, the term \u201cfamily member\u201d means \u201ca person related to you by blood, marriage or adoption who is a resident of your household.\u201d\nIt is uncontradicted in the record that Virginia is not a resident of Angela\u2019s household even though the two are related by marriage. Virginia therefore does not meet the Policy definition of a \u201cfamily member.\u201d\nIn her sworn affidavit, Westfall states she \u201cerase[d] Virginia\u2019s information\u201d from the Agreement, including Virginia\u2019s address and home phone number, and thereafter filled in Angela\u2019s own \u201cinformation.\u201d More significantly, affidavits of service filed by Angela prior to the summary judgment hearing indicate Virginia resided at two separate addresses in 2004, neither of which correspond to Angela\u2019s home address. Further, in her response to Discovery\u2019s interrogatories and requests for information, Angela provides an address different from her own when asked to \u201clist the residential address for [] Virginia Williams as of January 20, 2004[,]\u201d the date of the accident. Accordingly, even assuming arguendo that Virginia qualified as \u201crenter\u201d of the vehicle, Discovery would be under no duty to defend a suit against Angela because Virginia, not \u201ca resident of [Angela\u2019s] household,\u201d would not qualify as a covered \u201cinsured\u201d under the Policy.\nIn similar vein, Angela claims the language of the \u201cInsuring Agreement\u201d limiting Discovery\u2019s duty to defend to \u201cany suit or . . . claim for . . . property damage . . . covered under\u201d the Policy \u201c[a]t best . . . creates an ambiguity when read with the immediately preceding affirmative promise to settle or defend all suits asking for property damages because of an accident.\u201d However, although \u201c[t]he fact that a dispute has arisen as to the parties\u2019 interpretation of the contract is some indication that the language of the contract is at best, ambiguous,\u201d St. Paul Fire & Marine Ins. Co. v. Freeman-White Assoc., Inc., 322 N.C. 77, 83, 366 S.E.2d 480, 484 (1988), \u201cambiguity ... 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 Trust Co., 276 N.C. at 354, 172 S.E.2d at 522.\nHere, we are not persuaded the Policy is ambiguous merely because Discovery promises to defend suits seeking property damages in one sentence and then qualifies that duty in another sentence, both of which appear in the same paragraph and under the same contextual heading. To hold otherwise would violate general principles of insurance policy construction, which require courts to \u201cconstrue[] [insurance policies] as a whole, giving effect to each clause, if possible.\u201d Chavis v. Southern Life Ins. Co., 76 N.C. App. 481, 484, 333 S.E.2d 559, 561 (1985) (citation omitted), aff\u2019d, 318 N.C. 259, 347 S.E.2d 425 (1986); see Woods, 295 N.C. at 506, 246 S.E.2d at 777 (\u201cThe various terms of the policy are to be harmoniously construed, and if possible, every word and every provision is to be given effect.\u201d). Accordingly, we reject Angela\u2019s assertion that the Policy is ambiguous on its face.\nLastly, Angela contends Part D of the Policy provides coverage for damages to the rented vehicle irrespective of the exclusion for rented property set forth in Part A. Part D of the Policy, entitled \u201cCoverage For Damage To Your Auto,\u201d reads as follows:\nWe will pay for direct and accidental loss to your covered auto or any non-owned auto, including their equipment. . . .\nCiting the foregoing language, Angela reasons the rented vehicle was a \u201cnon-owned auto\u201d for the purposes of coverage and that Discovery thus had a duty to defend the suit against her and provide coverage for Enterprise\u2019s damages. Angela\u2019s contention misses the mark.\n\u201cAutomobile liability policies that provide coverage for non-owned autos are intended to provide coverage to a driver without additional premiums, for the occasional or infrequent driving of an automobile other than his own.\u201d Nationwide Mut. Ins. Co. v. Walters, 142 N.C. App. 183, 188, 541 S.E.2d 773, 776 (2001) (citation and quotation marks omitted). Here, Part D of the Policy defines \u201cNon-owned auto\u201d in pertinent part as follows:\n1. Any private passenger auto, station wagon type, pickup truck, van or trailer not owned by or furnished or available for the regular use of you or any family member while in the custody of or being operated by you or any family member.\nAlthough conceding she was neither the operator of nor a passenger in the rented vehicle at the time of the collision, Angela insists the vehicle was \u201cin [her] custody\u201d for the purpose of Part D. Angela is mistaken.\nIt is well established that \u201c[i]n construing an insurance policy, \u2018nontechnical words, not defined in the policy, are to be given the same meaning they usually receive in ordinary speech, unless the context requires otherwise.\u2019 \u201d Brown, 326 N.C. at 392, 390 S.E.2d at 153 (quoting Grant v. Insurance Co., 295 N.C. 39, 42, 243 S.E.2d 894, 897 (1978)). Here, the term \u201ccustody\u201d is not defined in the Policy. Turning then to the \u201c \u2018meaning [the term would] usually receive in ordinary speech,\u2019 \u201d Brown, 326 N.C. at 392, 243 S.E.2d at 153 (citation omitted), we note Merriam-Webster\u2019s Dictionary defines the noun \u201ccustody\u201d as \u201cimmediate charge and control (as over a ward or a suspect) exercised by a person or an authority.\u201d Merriam-Webster\u2019s Collegiate Dictionary (10th ed. 1998).\nUnder the facts of this, case, Angela did not have \u201cimmediate charge\u201d or \u201ccontrol\u201d over the rented automobile at the time of the collision, as it is undisputed that she was neither driver nor passenger. Indeed, the vehicle was being operated by Virginia on Interstate Highway 85. Further, despite Angela\u2019s contention to the contrary, giving the term \u201ccustody\u201d the above-quoted meaning does not \u201cmake[] the or being operated bv portion of the definition superfluous\u201d or fail to give \u201cevery word and every provision [of the policy] effect,\u201d Woods, 295 N.C. at 506, 246 S.E.2d at 777. Indeed, had the vehicle actually been operated by Angela at the time of the collision, arguably it would qualify as a \u201cnon-owned auto\u201d under the Policy. Our application of the general meaning of the term \u201ccustody\u201d found in the Policy merely anticipates such instances in which a non-owned auto is \u201cnot being operated\u201d by an insured or its \u201cfamily member,\u201d but rather is in the \u201cimmediate charge\u201d or \u201ccontrol\u201d of the insured or family member. See Id. (in construing the terms of an insurance policy, \u201cth\u00e9 various terms of the policy are to be harmoniously construed\u201d).\nIn sum, after reviewing the pertinent case law and provisions of the Policy, we conclude no genuine issue of material fact remains regarding whether Discovery was required to provide coverage to Angela or defend her against the suit by Enterprise. Accordingly, the trial court did not err in granting summary judgment in favor of Discovery.\nAffirmed.\nJudges BRYANT and CALABRIA concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Edward J. McNaughton for defendant/third-party plaintiff-appellant Angela Williams.", "Golding, Holden & Pope, L.L.P., by J. Scott Bayne, for third-party defendant-appellee Discovery Insurance Company." ], "corrections": "", "head_matter": "ENTERPRISE LEASING COMPANY SOUTHEAST, d/b/a ENTERPRISE RENT-A-CAR, Plaintiff v. ANGELA WILLIAMS, Defendant and Third-Party Plaintiff v. VIRGINIA L. WILLIAMS and DISCOVERY INSURANCE CO., Third-Party Defendants\nNo. COA05-865\n(Filed 4 April 2006)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 substantial right \u2014 insurer\u2019s duty to defend\nAlthough defendant/third-party plaintiff\u2019s appeal from the grant of summary judgment in favor of third-party defendant insurance company is an appeal from an interlocutory order since other claims remain outstanding in the trial court, notwithstanding dismissal of all claims involving the insurance company by virtue of the order, this appeal is properly before the Court of Appeals because the issue of the insurer\u2019s duty to defend involves a substantial right to both the insured and the insurer.\n2. Insurance\u2014 leased vehicle \u2014 lessee not driver \u2014 insurer\u2019s duty to defend\nAn automobile policy issued to defendant provided no coverage and third-party defendant insurer had no duty to defend defendant insured with regard to an accident involving a car leased by defendant and driven by her sister-in-law at a time when defendant was not in the car because: (1) the express terms of the policy provide that the insurance company has no duty to defend defendant in any suit for property damage not covered under the policy (damage to property leased to the insured is excluded from coverage); (2) defendant\u2019s sister-in-law does not fall within the policy definition of a family member; (3) even assuming arguendo that the sister-in-law qualified as a lessee of the vehicle, the insurance company would be under no duty to defend a suit against defendant because the sister-in-law was not a resident of defendant\u2019s household, and thus, would not qualify as a covered insured under the policy; (4) the policy is not ambiguous merely based on the fact that the insurance company promises to defend suits seeking property damage in one sentence and then qualifies that duty in another sentence; and (5) although defendant contends the rented vehicle was a non-owned auto for purposes of coverage, she did not have immediate charge or control over the leased automobile at the time of the collision as she was neither the driver nor passenger.\nAppeal by defendant/third-party plaintiff from order entered 16 March 2005 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 January 2006.\nEdward J. McNaughton for defendant/third-party plaintiff-appellant Angela Williams.\nGolding, Holden & Pope, L.L.P., by J. Scott Bayne, for third-party defendant-appellee Discovery Insurance Company." }, "file_name": "0064-01", "first_page_order": 98, "last_page_order": 107 }