{ "id": 4164762, "name": "JOHNNY V. BENTON, JR. and VERONICA TYNDALL, Plaintiffs v. TIMOTHY S. HANFORD and PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Defendants", "name_abbreviation": "Benton v. Hanford", "decision_date": "2009-01-20", "docket_number": "No. COA08-44", "first_page": "88", "last_page": "97", "citations": [ { "type": "official", "cite": "195 N.C. App. 88" } ], "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": "429 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "409", "parenthetical": "\"When neither of two competing insurance policies has an 'other insurance' clause and both cover the loss which has been sustained, liability is allocated pro rata when no contrary policy stipulation is involved.\" (Citation and quotation marks omitted.)" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525372 ], "year": 1993, "pin_cites": [ { "page": "283", "parenthetical": "\"When neither of two competing insurance policies has an 'other insurance' clause and both cover the loss which has been sustained, liability is allocated pro rata when no contrary policy stipulation is involved.\" (Citation and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0278-01" ] }, { "cite": "462 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793222, 793228, 793200, 793113, 793182 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0651-02", "/nc/341/0651-01", "/nc/341/0651-04", "/nc/341/0651-03", "/nc/341/0651-05" ] }, { "cite": "456 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "885" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920692 ], "year": 1995, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0686-01" ] }, { "cite": "514 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1999, "pin_cites": [ { "parenthetical": "\"UIM carriers are entitled to set off the amount received by a claimant from the tortfeasor's liability carrier against any UIM amounts owed.\"" }, { "page": "293", "parenthetical": "allocating the liability credit on the basis of the \"other insurance\" clause in each policy" }, { "page": "293" }, { "page": "292" }, { "page": "293", "parenthetical": "citation, quotation marks, original brackets and ellipses omitted; original emphasis retained" }, { "page": "293-94" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216343 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "77", "parenthetical": "\"UIM carriers are entitled to set off the amount received by a claimant from the tortfeasor's liability carrier against any UIM amounts owed.\"" }, { "page": "78" }, { "page": "78-79" }, { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0076-01" ] }, { "cite": "608 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "110" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470710 ], "year": 2005, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0555-01" ] }, { "cite": "434 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531602 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0586-01" ] }, { "cite": "492 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551170, 551396, 551186, 551322, 551231 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0138-04", "/nc/347/0138-02", "/nc/347/0138-05", "/nc/347/0138-01", "/nc/347/0138-03" ] }, { "cite": "483 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708377 ], "weight": 3, "pin_cites": [ { "page": "50-51" }, { "page": "51-52" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0042-01" ] }, { "cite": "573 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "120", "parenthetical": "citations, quotation marks, ellipses and brackets omitted; emphasis added" }, { "page": "120" } ], "opinion_index": 0 }, { "cite": "356 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511376 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "573-74", "parenthetical": "citations, quotation marks, ellipses and brackets omitted; emphasis added" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0571-01" ] }, { "cite": "306 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "443-44", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763743 ], "year": 1983, "pin_cites": [ { "page": "210", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0195-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2005, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" }, { "page": "(b)(4)", "parenthetical": "emphasis added" }, { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "603 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "166 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413824 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/166/0740-01" ] }, { "cite": "583 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "408", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 416", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956491 ], "year": 2003, "pin_cites": [ { "page": "420", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0416-01" ] }, { "cite": "483 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54024, 54187, 53844, 53941, 53916 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0353-04", "/nc/345/0353-03", "/nc/345/0353-05", "/nc/345/0353-02", "/nc/345/0353-01" ] }, { "cite": "470 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "361", "parenthetical": "\"[A]n underinsured highway vehicle as defined in G.S. \u00a7 20-279.21(b)(4" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918384 ], "year": 1996, "pin_cites": [ { "page": "506", "parenthetical": "\"[A]n underinsured highway vehicle as defined in G.S. \u00a7 20-279.21(b)(4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0505-01" ] }, { "cite": "439 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529506, 2531270, 2532329, 2526292, 2531865 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0559-04", "/nc/335/0559-02", "/nc/335/0559-05", "/nc/335/0559-03", "/nc/335/0559-01" ] }, { "cite": "435 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521168 ], "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0259-01" ] }, { "cite": "420 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] } ], "analysis": { "cardinality": 736, "char_count": 21759, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0541289391192727e-07, "percentile": 0.5548647816919056 }, "sha256": "66b1b5d6e2b3a46ea595c32fcfcec633d0060169370358aa6d80fc10d682e003", "simhash": "1:f881545a49bf2eca", "word_count": 3398 }, "last_updated": "2023-07-14T21:32:21.117771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "JOHNNY V. BENTON, JR. and VERONICA TYNDALL, Plaintiffs v. TIMOTHY S. HANFORD and PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nThis case presents two issues to this Court: (1) whether a tortfeasor\u2019s underinsured motorist (\u201cUIM\u201d) insurance policy which covers a person occupying the tortfeasor\u2019s vehicle may be stacked with the injured party\u2019s separate UIM policy in order to determine the total UIM coverage available to the injured party, and (2) how the credit for the applicable liability coverage should be divided between the tortfeasor\u2019s insurer and the injured party\u2019s insurer. For the reasons which follow, we affirm the trial court.\nI. Background\nOn 27 October 2005 plaintiff Benton was a passenger in a 2001 Toyota operated by defendant Hanford. The Toyota collided with a tree causing bodily injury to Benton.\nAt the time of the accident, defendant Hanford was insured as a named driver in Nationwide Policy No. 6132S626920 (\u201cthe Nationwide policy\u201d). The Nationwide policy provided $50,000.00 per person in liability coverage and $50,000.00 per person in UIM coverage for, inter alia, a person occupying the covered vehicle. Plaintiff Benton was insured as a \u201chousehold resident\u201d on Progressive Southeastern Policy No. 11951100-1 (\u201cthe Progressive policy\u201d) owned by his mother, plaintiff Tyndall. The Progressive policy provided for $100,000.00 per person in UIM coverage. After the accident, Nationwide paid plaintiffs $50,000.00 in liability insurance benefits under its policy.\nOn 30 January 2007 plaintiffs filed a complaint in Superior Court, Nash County, seeking inter alia, \u201ca judicial determination as to whether Progressive is responsible for paying up to a total of $100,000.00 in underinsured motorist coverage for this claim.\u201d Defendant Progressive filed an answer on 19 April 2007, asserting that its $100,000.00 UIM policy limit should be reduced by a credit for Nationwide\u2019s liability payment of $50,000.00, thereby limiting Progressive\u2019s UIM coverage to only $50,000.00. On 1 June 2007 defendant Progressive moved for summary judgment, requesting the trial court to declare that Progressive\u2019s coverage was limited to $50,000.00.\nOn 28 September 2007, the trial court entered summary judgment in favor of plaintiffs, declaring:\n6. The Nationwide policy provided UIM coverage in the sum of $50,000.00 for the damages sustained by plaintiffs in the October 27, 2005 accident.\n8. The Nationwide policy provides primary UIM coverage for purposes of the damages sustained by the plaintiffs in the October 27, 2005 accident, and the Progressive Southeastern policy provides excess UIM insurance benefits.\n9. Nationwide is entitled to a credit of $50,000.00 to its $50,000.00 UIM limit, for the amount of the liability insurance paid under Nationwide\u2019s policy to the plaintiffs.\n10. The Progressive Southeastern policy is entitled to no credit for the liability proceeds paid under the Nationwide policy to the plaintiffs.\n11. The Progressive Southeastern policy provides available UIM coverage in the amount of $100,000.00 for the damages sustained by the plaintiffs in the October 27, 2005 accident.\nDefendant Progressive appeals.\nII. Underinsured Highway Vehicle\nDefendant first argues that the Nationwide policy does not provide UIM coverage to plaintiff Benton as a passenger in the Toyota because the Toyota was not an \u201cunderinsured vehicle\u201d for purposes of the Nationwide policy. Defendant argues that the definition of \u201cunderinsured motor vehicle\u201d found in the Nationwide policy is dis-positive, particularly the provision which expressly excludes from the definition \u201cany vehicle . . . [w]hich is insured under Liability Coverage of this policy if such policy\u2019s limit of liability for Combined Uninsured/Underinsured Motorists Coverage is equal to or less than its limit of liability for Liability Coverage.\u201d Defendant reasons that because the liability limits and the UIM limits in the Nationwide policy are equal, the Toyota does not meet the definition of an \u201cunderinsured motor vehicle\u201d under the terms of the policy. Therefore, defendant concludes, the Nationwide policy does not provide UIM coverage to plaintiff Benton. We disagree.\n\u201c[W]hether the tortfeasor\u2019s vehicle is an \u2018underinsured highway vehicle\u2019 as the term is used in N.C.G.S. \u00a7 20-279.21(b)(4)\u201d is the \u201cthreshold question\u201d in determining if UIM coverage applies. Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 187, 420 S.E.2d 124, 126 (1992); Ray v. Atlantic Casualty Ins. Co., 112 N.C. App. 259, 261, 435 S.E.2d 80, 81 (\u201cUIM coverage . . . necessarily depends on whether the tortfeasor\u2019s vehicle is an underinsured highway vehicle.\u201d), disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993); see also State Farm Mut. Auto. Ins. Co. v. Young, 122 N.C. App. 505, 506, 470 S.E.2d 361, 361 (1996) (\u201c[A]n underinsured highway vehicle as defined in G.S. \u00a7 20-279.21(b)(4) can include a motor vehicle owned by the named insured, and the provisions in the policies issued by plaintiff attempting to exclude such coverage are invalid and unenforceable.\u201d (Citation and quotation marks omitted.)), disc. review denied, 345 N.C. 353, 483 S.E.2d 191 (1997).\nNotwithstanding the express language in the Nationwide policy quoted by defendant, the \u201cprovisions of the Financial Responsibility Act [], N.C. Gen. Stat. Chapter 20, Article 9A [], are written into every insurance policy as a matter of law. Where the language of an insurance policy conflicts with the provisions of the Act, the provisions of the Act prevail.\u201d Austin v. Midgett, 159 N.C. App. 416, 420, 583 S.E.2d 405, 408 (2003) (citations omitted), modified on rehearing on other grounds, 166 N.C. App. 740, 603 S.E.2d 855 (2004). Because the Financial Responsibility Act (\u201cthe Act\u201d) specifically defines \u201cunderinsured highway vehicle[,]\u201d N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2005), we turn to the Act and the cases interpreting it without regard to the definition of the term in the Nationwide policy.\nDefendant contends that even if we reject the language of the policy and rely on the language of the Act, we should reach the same result, i.e., that the Toyota involved in the accident is not an \u201cunderinsured highway vehicle\u201d under the terms of the statute. Again, we disagree.\nThe Act defines \u201cunderinsured highway vehicle\u201d generally as:\na highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner\u2019s policy.\nN.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2005). Statutory interpretation begins with \u201c[t]he cardinal principle of statutory construction... that the intent of the legislature is controlling. In ascertaining the legislative intent, courts should consider the language of the statute, the spirit of the statute, and what it seeks to accomplish.\u201d State ex rel. Utilities Commission v. Public Staff, 309 N.C. 195, 210, 306 S.E.2d 435, 443-44 (1983) (citations omitted). Specific to the Act, the North Carolina Supreme Court has stated:\nThe avowed purpose of the Financial Responsibility Act is to compensate the innocent victims of financially irresponsible motorists. The Act is remedial in nature and is to be liberally construed so that the beneficial purpose intended by its enactment may be accomplished. The purpose of the Act, we have said, is best served when every provision of the Act is interpreted to provide the innocent victim with the fullest possible protection.\nLiberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 573-74, 573 S.E.2d 118, 120 (2002) (citations, quotation marks, ellipses and brackets omitted; emphasis added).\nIn keeping with the purpose of the Act, applicable UIM coverage may be stacked interpolicy to calculate the \u201capplicable limits of underinsured motorist coverage for the vehicle involved in the accident\u201d for the purpose of determining if the tortfeasor\u2019s vehicle is an \u201cunderinsured highway vehicle.\u201d N. C. Farm Bureau Mut. Ins. Co. v. Bost, 126 N.C. App. 42, 50-51, 483 S.E.2d 452, 458 (the legislature\u2019s use of the plural \u201climits\u201d in the statutory definition of \u201cunderinsured highway vehicle\u201d means that an insured may stack all applicable UIM policies to determine if the definition is met), disc. review denied, 347 N.C. 138, 492 S.E.2d 25 (1997).\nDespite Bost and other cases which have recognized interpolicy stacking of UIM coverages, see, e.g., Harrington v. Stevens, 334 N.C. 586, 434 S.E.2d 212 (1993), defendant contends that the multiple claimant exception added to the definition of \u201cunderinsured highway vehicle\u201d in 2004 controls, disallowing stacking in this case. The multiple claimant exception (or \u201c2004 amendment\u201d) reads, with the portion relied on by defendant underlined:\nFor purposes of an underinsured motorist claim asserted by a person injured in an accident where more than one person is injured, a highway vehicle will also be an \u201cunderinsured highway vehicle\u201d if the total amount actually paid to that person under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of under-insured motorist coverage for the vehicle involved in the accident and insured under the owner\u2019s policy. Notwithstanding the immediately preceding sentence, a highway vehicle shall not be an \u201cunderinsured motor vehicle\u201d for purposes of an underinsured motorist claim under an owner\u2019s policy insuring that vehicle if the owner\u2019s policy insuring that vehicle provides underinsured motorist coverage with limits that are less than or equal to that policy\u2019s bodily iniurv liability limits.\nN.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2005) (emphasis added).\nDefendant contends, pursuant to the above-underlined portion of the 2004 amendment, that because the Nationwide policy insuring the Toyota provided UIM coverage with a limit of $50,000.00 per person, an amount equal to the policy\u2019s bodily injury liability coverage limits, the Toyota is not an \u201cunderinsured highway vehicle\u201d within the meaning of the Act. Defendant recognizes that both sentences were added together in the 2004 amendment but contend, \u201cthere is nothing within the language of the amendment limiting the application of the second sentence of the amendment to the multiple claimant scenario addressed by the first sentence.\u201d\nWe disagree and hold that the exception in the 2004 amendment does not apply sub judice. Keeping in mind that we must interpret the provisions of the Act liberally, in order to \u201cprovide the innocent vietim with the fullest possible protection],]\u201d Liberty Mut. Ins. Co., 356 N.C. at 574, 573 S.E.2d at 120, we conclude that by including the phrase \u201c[notwithstanding the immediately preceding sentence,\u201d the General Assembly literally meant to limit the above-underlined provision to the \u201cpreceding sentence,\u201d which refers to the multiple claimant exception added in the 2004 amendment. Accordingly, we conclude that this sentence applies only to accidents with multiple claimants. Because there is only one claimant sub judice, the 2004 amendment, including the language highlighted by defendant, does not apply here and we must use the general definition of \u201cunderinsured highway vehicle\u201d found in the Act. Host, 126 N.C. App. at 51-52, 483 S.E.2d at 458.\nUsing the general definition of \u201cunderinsured highway vehicle,\u201d it follows that the Nationwide UIM policy limit ($50,000.00) may be stacked with the Progressive policy limit ($100,000.00) to determine whether the Toyota is an underinsured motor vehicle. Id. The amount of the stacked UIM coverages ($50,000.00 + $100,000.00 = $150,000.00) is the \u201capplicable limits of underinsured motorist coverage for the vehicle involved in the accident[.]\u201d Because this amount ($150,000.00) is greater than the liability limits ($50,000.00) under the Nationwide policy, we conclude that the Toyota is an \u201cunderinsured highway vehicle\u201d within the meaning of the Act.\nIII. Allocation of the Credit\nAfter calculating the amount of stacked UIM coverage at $150,000.00, the trial court credited Nationwide\u2019s UIM coverage ($50,000.00) with the entire amount of Nationwide\u2019s liability payment ($50,000.00) after concluding that \u201c[t]he Nationwide policy provides primary UIM coverage for purposes of the damages sustained by the plaintiffs in the October 27, 2005 accident, and the Progressive Southeastern policy provides excess UIM insurance benefits.\u201d Defendant argues that this conclusion is error, and that Progressive is entitled to the entire credit from the Nationwide liability policy. Defendant argues on this issue is essentially a rehash of its first argument, to wit: \u201c[a]s the only provider of UIM coverage to the plaintiffs, Progressive Southeastern is entitled to receive the entire $50,000,000 [sic] credit from liability insurance paid by Nationwide.\u201d Again, we disagree with defendant.\nBefore making payment to the injured party against the \u201capplicable limits of underinsured motorist coverage for the vehicle involved in the accident,\u201d the \u201cUIM carrierfs are] entitled to a credit for payments made by the liability carrier.\u201d Walker v. Penn Nat\u2019l Sec. Ins. Co., 168 N.C. App. 555, 559, 608 S.E.2d 107, 110 (2005). The statutory authority for this rule is N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2005), which states: \u201cIn any event, the limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident.\u201d Id.; Iodice v. Jones, 133 N.C. App. 76, 77, 514 S.E.2d 291, 292 n.2 (1999) (\u201cUIM carriers are entitled to set off the amount received by a claimant from the tortfeasor\u2019s liability carrier against any UIM amounts owed.\u201d).\nWhen there is more than one UIM carrier involved, allocation of the credit for liability payments is necessary. Onley v. Nationwide Mutual Ins. Co., 118 N.C. App. 686, 691, 456 S.E.2d 882, 885, disc. review denied, 341 N.C. 651, 462 S.E.2d 514 (1995). If neither policy has an \u201cother insurance\u201d clause, or if each policy has an \u201cother insurance\u201d clause which effectively cancels out the other, the credit is shared pro rata between the two insurance carriers. Bost, 126 N.C. App. at 52, 483 S.E.2d at 458-59 (allocating the credit pro rata between two UIM insurers when identical \u201cother insurance\u201d clauses were \u201cdeemed mutually repugnant\u201d and therefore nullified each other); Aetna Casualty and Surety Co. v. Continental Ins. Co., 110 N.C. App. 278, 283, 429 S.E.2d 406, 409 (1993) (\u201cWhen neither of two competing insurance policies has an \u2018other insurance\u2019 clause and both cover the loss which has been sustained, liability is allocated pro rata when no contrary policy stipulation is involved.\u201d (Citation and quotation marks omitted.)). However, if one or both policies contain an \u201cother insurance\u201d clause, and the clauses do not effectively cancel each other out, the language of the clause determines which carrier is the \u201cprimary\u201d insurer and which is the \u201cexcess\u201d insurer. Iodice, 133 N.C. App. at 78, 514 S.E.2d at 293 (allocating the liability credit on the basis of the \u201cother insurance\u201d clause in each policy). The \u201cprimary\u201d insurer is entitled to the entire credit. Id. at 79, 514 S.E.2d at 293.\nIn the case sub judice, both policies contain identical \u201cother insurance\u201d clauses:\nIn addition, if there is other applicable similar insurance, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\nThe relevant facts and policy language sub judice are apposite to. the facts and policy language in Iodice, 133 N.C. App. 76, 514 S.E.2d 291:\nBoth the GEICO policy and the Nationwide policy contain the following \u201cother insurance\u201d paragraph:\n[I]f there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\nId. at 77, 514 S.E.2d at 292.\nAccordingly, the holding of Iodice controls this case:\n[T]he \u201cexcess\u201d clause of the \u201cother insurance\u201d paragraph in each policy provides: \u201cAny insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.\u201d\n[T]he \u201cother insurance\u201d clauses in this case, although identically worded, do not have identical meanings and are therefore not mutually repugnant. . . . [T]he Nationwide \u201cexcess\u201d clause reads: \u201cAny insurance we provide with respect to a vehicle [the Nationwide policy holder] does not own shall be excess over any other collectible insurance.\u201d It follows that Nationwide\u2019s UIM coverage is not \u201cexcess\u201d over other collectible insurance (and is, therefore, primary), because the vehicle in which the accident occurred is owned by [the Nationwide policy holder]. The GEICO \u201cexcess\u201d clause reads: \u201cAny insurance we provide with respect to a vehicle [the GEICO policy holder] does not own shall be excess over any other collectible insurance.\u201d It follows that GEICO\u2019s UIM coverage is \u201cexcess\u201d (and is, therefore, secondary), because the vehicle in which the accident occurred is not owned by [the GEICO policy holder]. Accordingly, Nationwide provides primary UIM coverage in this case. As such, Nationwide is entitled to set off the entire [credit from the liability policy] against any UIM amounts it owes [the injured party], because the primary provider of UIM coverage is entitled to the credit for the liability coverage.\n133 N.C. App. at 78-79, 514 S.E.2d at 293 (citation, quotation marks, original brackets and ellipses omitted; original emphasis retained).\nAccording to. the \u201cother insurance\u201d clauses in both policies sub judice, as in Iodice, the UIM coverage for the vehicle owned by the policy holder is not excess, but is \u201cprimary\u201d coverage. 133 N.C. App. at 78-79, 514 S.E.2d at 293-94. In the case sub judice, this is the Nationwide policy covering the Toyota involved in the accident. The other policy sub judice, the Progressive policy, insured the injured party as a household resident of a named insured, in a vehicle not owned by the named insured. According to Iodice and the language of the policy, this is \u201cexcess\u201d coverage. Id. As the provider of primary coverage, Nationwide is entitled to the entire credit from the liability payment. The trial court did not err in so concluding.\nIV. Conclusion\nPlaintiffs were entitled to stack both the Nationwide and the Progressive policies in determining whether the Toyota involved in the accident was an \u201cunderinsured highway vehicle\u201d for purposes of UIM insurance coverage. Furthermore, Nationwide was entitled to the entire credit for its liability payment as the primary insurer. Accordingly, the order of the trial court granting summary judgment in favor of plaintiffs is affirmed.\nAffirmed.\nChief Judge MARTIN and Judge McGEE concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, and Henson & Fuerst, P.A., by William S. Hoyle, for plaintiff-appellees.", "Young Moore and Henderson P.A., by Glenn C. Raynor, for defendant-appellant.", "Maynard & Harris, PLLC, by C. Douglas Maynard, Jr., for amicus curiae North Carolina Academy of Trial Lawyers." ], "corrections": "", "head_matter": "JOHNNY V. BENTON, JR. and VERONICA TYNDALL, Plaintiffs v. TIMOTHY S. HANFORD and PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Defendants\nNo. COA08-44\n(Filed 20 January 2009)\n1. Insurance\u2014 automobile \u2014 UIM coverage \u2014 stacking of policies \u2014 Financial Responsibility Act\nThe trial court did not err by concluding that a tortfeasor\u2019s underinsured motorist (UIM) insurance policy which covers a person occupying the tortfeasor\u2019s vehicle may be stacked with the injured party\u2019s separate UIM policy in order to determine the total UIM coverage available to the injured party because: (1) the purpose of the Financial Responsibility Act is best served when every provision of the Act is interpreted to provide the innocent victim with the fullest possible protection; (2) the 2004 amendment was not applicable since there was only one claimant; and (3) the general definition of \u201cunderinsured highway vehicle\u201d found in the Act provided that the amount of the stacked UIM coverage ($50,000 from the tortfeasor\u2019s Nationwide UIM policy + $100,000 from the injured party\u2019s Progressive policy = $150,000) was the applicable limit of underinsured motorist coverage for the vehicle involved in the accident, and the tortfeasor\u2019s vehicle was an underinsured highway vehicle since the $150,000 amount was greater than the $50,000 liability limits under the Nationwide policy.\n2. Insurance\u2014 automobile \u2014 UIM coverage \u2014 primary and excess carriers \u2014 credit for liability payment\nThe underinsured motorist (UIM) coverage in a policy on the tortfeasor\u2019s vehicle in which a passenger was injured was primary and the UIM coverage in a policy insuring the injured passenger as a resident of the named insured\u2019s household was excess coverage, and the tortfeasor\u2019s primary UIM insurer was entitled to the credit for the liability insurance payment made to the passenger, where both policies contained \u201cother insurance\u201d clauses stating that any insurance provided with respect to a vehicle not owned by the insured shall be excess over any other collectible insurance.\nAppeal by defendant from order entered 28 September 2007 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 26 August 2008.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, and Henson & Fuerst, P.A., by William S. Hoyle, for plaintiff-appellees.\nYoung Moore and Henderson P.A., by Glenn C. Raynor, for defendant-appellant.\nMaynard & Harris, PLLC, by C. Douglas Maynard, Jr., for amicus curiae North Carolina Academy of Trial Lawyers." }, "file_name": "0088-01", "first_page_order": 120, "last_page_order": 129 }