{
  "id": 8553709,
  "name": "B. WALTON BROWN, Administrator of the Estate of Ronald Wilson Walker v. LUMBERMENS MUTUAL CASUALTY COMPANY",
  "name_abbreviation": "Brown v. Lumbermens Mutual Casualty Co.",
  "decision_date": "1973-09-12",
  "docket_number": "No. 7319SC610",
  "first_page": "391",
  "last_page": "392",
  "citations": [
    {
      "type": "official",
      "cite": "19 N.C. App. 391"
    }
  ],
  "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": [],
  "analysis": {
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Morris concur."
    ],
    "parties": [
      "B. WALTON BROWN, Administrator of the Estate of Ronald Wilson Walker v. LUMBERMENS MUTUAL CASUALTY COMPANY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nBy the \u201cuninsured motorists\u201d endorsement to the policy here sued upon the defendant agreed to pay, up to stated limits of liability, \u201call sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of . . . bodily injury, sickness or disease, including death resulting therefrom, . . . sustained by the insured . . . caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.\u201d Plaintiff\u2019s intestate comes within the policy definition of an \u201cinsured\u201d and the hit-andrrun automobile referred to in the complaint comes within the policy definition of an \u201cuninsured automobile\u201d with respect to the coverage afforded by the endorsement. Nevertheless, summary judgment dismissing plaintiff\u2019s action was proper.\nThe pleadings and record establish that this action was commenced more than two but less than three years after plaintiff\u2019s action for the wrongful death arose. By G.S. 1-53 (4) an action to recover damages for wrongful death must be commenced within two years. Thus, at the time plaintiff instituted this action against defendant insurance company, his action against the uninsured motorist was already barred and he was at that time no longer \u201clegally entitled to recover\u201d from the uninsured motorist.\nIt is true, as plaintiff contends, that this action against defendant insurance company is upon contract and that G.S. 1-52(1) provides a three-year period of limitations for the commencement of such actions. This contention, however, misses the point. Summary judgment dismissing plaintiff\u2019s action was proper not because his contract action against defendant insurance company was barred, but because the admitted facts establish that at the time this action was instituted his claim was no longer within the coverage provided by the policy. The summary judgment dismissing plaintiff\u2019s action is\nAffirmed.\nJudges Britt and Morris concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Ottway Burton for plaintiff appellant.",
      "Henson, Donahue & Elrod by Joseph E. Elrod Ill for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "B. WALTON BROWN, Administrator of the Estate of Ronald Wilson Walker v. LUMBERMENS MUTUAL CASUALTY COMPANY\nNo. 7319SC610\n(Filed 12 September 1973)\nInsurance \u00a7 69\u2014 uninsured motorist provision \u2014 wrongful death claim barred \u2014 no recovery under provision\nWhere plaintiff instituted his action against defendant insurance company under an uninsured motorist endorsement on a policy more than two but less than three years after his cause of action for wrongful death arose, the trial court properly entered summary judgment for defendant since at the time plaintiff commenced his' action, his claim against the uninsured motorist was already barred and he was no longer \u201clegally entitled to recover\u201d from the uninsured motorist\u2014 a prerequisite to recovery under the uninsured motorist endorsement.\nAppeal, by plaintiff from Godwin, Judge, 9 April 1973 Session of Superior Court held in Randolph County.\nPlaintiff\u2019s intestate died on 26 April 1969 as result of injuries received on that date when the Chevrolet automobile he was driving skidded off the road and overturned. Plaintiff instituted this action on 25 April 1972 seeking to recover up to the policy limit of $10,000.00 from defendant insurance company under the provisions of the uninsured motorist endorsement to a policy of insurance issued by defendant to plaintiff\u2019s intestate\u2019s mother, who was owner of the Chevrolet. Plaintiff alleged that the fatal collision was caused by the negligence of an unknown driver of an unknown vehicle who, while attempting' to pass the Chevrolet in a curve, collided with it and caused it to skid out of control.\nDefendant admitted issuance of the policy with the uninsured motorist endorsement, but denied liability thereunder on the ground, among others, that this, .action was instituted more than two years after the accrual of the cause of action for wrongful death. Defendant also moved for summary judgment dismissing the action on that ground. The motion was allowed and plaintiff appealed.\nOttway Burton for plaintiff appellant.\nHenson, Donahue & Elrod by Joseph E. Elrod Ill for defendant appellee."
  },
  "file_name": "0391-01",
  "first_page_order": 415,
  "last_page_order": 416
}