{ "id": 4169418, "name": "REGINA K. NOLAN, Plaintiff v. DERRICK LAMONT COOKE and WARREN COUNTY, a body politic and corporate, NORTH CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS-Liability and Property Insurance Pool Fund, an unincorporated Association, Defendants", "name_abbreviation": "Nolan v. Cooke", "decision_date": "2009-08-04", "docket_number": "No. COA08-1371", "first_page": "667", "last_page": "674", "citations": [ { "type": "official", "cite": "198 N.C. App. 667" } ], "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": "668 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642173, 12642174, 12642175 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/668/0029-01", "/se2d/668/0029-02", "/se2d/668/0029-03" ] }, { "cite": "362 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642109 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/667/0468-03" ] }, { "cite": "662 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641410 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "683", "parenthetical": "citation omitted" }, { "page": "679" }, { "page": "682-83", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0678-01" ] }, { "cite": "632 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636284 ], "year": 2006, "pin_cites": [ { "page": "180", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0178-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "378 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485437 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0424-01" ] }, { "cite": "369 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "86" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525523 ], "year": 1988, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0585-01" ] }, { "cite": "397 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "332" }, { "page": "332", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527036 ], "year": 1990, "pin_cites": [ { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0490-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-10.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "191 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158883 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "224", "parenthetical": "citation omitted" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0217-01" ] }, { "cite": "425 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "697" }, { "page": "697-98" } ], "opinion_index": 0 }, { "cite": "333 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "340" }, { "page": "340" } ], "opinion_index": 0 }, { "cite": "417 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313718 ], "year": 1992, "pin_cites": [ { "page": "685-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0681-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "178 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376698 ], "year": 2006, "pin_cites": [ { "page": "199", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0197-01" ] } ], "analysis": { "cardinality": 600, "char_count": 16084, "ocr_confidence": 0.747, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13643112011549707 }, "sha256": "26831041c696e80b0227afb85f94b69452298b3d812a331156d10276b7f22868", "simhash": "1:ab6bb756e3ebf5fc", "word_count": 2573 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "REGINA K. NOLAN, Plaintiff v. DERRICK LAMONT COOKE and WARREN COUNTY, a body politic and corporate, NORTH CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS\u2014Liability and Property Insurance Pool Fund, an unincorporated Association, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nThe facts of this case are undisputed. On 21 February 2002, Regina Nolan (plaintiff) was on patrol as a deputy sheriff, operating a car owned by Warren County and insured by the North Carolina Association of County Commissioners Liability and Property Insurance Pool Fund (the Fund) (collectively, defendants). Plaintiff was injured during a motor vehicle collision with Derrick Cooke\u2019s vehicle, which was uninsured.\nPlaintiff filed a workers\u2019 compensation claim with the North Carolina Industrial Commission seeking compensation for her injuries. She has received $197,193.75 in compensation as a result of this claim.\nWith regard to motor vehicle insurance coverage, Warren County self-insures by participating with other North Carolina counties in a risk pool operated by the Fund. Warren County\u2019s policy with the Fund provides a $2,000,000.00 coverage limit for general vehicle liability but only $100,000.00 in uninsured motorist coverage for county-owned vehicles. The policy includes the following relevant language:\n5. Limit of Liability for Section III Uninsured/Underinsured Motorist Coverage.\na. Regardless of the number of Covered Auto\u2019s [sic], Covered Persons, claims made, or vehicles involved in the accident, the most the Fund will pay for all damages resulting from any one accident is the limit of Uninsured/Underinsured Motorist Coverage of this Section III shown in the Declarations Page.\nb. Any amount payable under Section III, E. Uninsured/Under-insured Motorist Coverage shall be reduced by:\n(1) all sums paid or payable under any workers\u2019 compensation, disability benefits, or similar law exclusive of non-occupational disability benefits; and\n(2) all sums paid by or for anyone who is legally responsible, including all sums paid under the Contract\u2019s liability coverage; and\n(3) all sums paid or payable under any policy of property insurance.\nc. Any amount paid under this coverage will reduce any amount a Participant may be paid under the Contract\u2019s liability coverage.\nPlaintiff brought an action seeking determination of the amount of coverage of the vehicle policy maintained by Warren County. The trial court held that the North Carolina Motor Vehicle Safety and Responsibility Act (the MVSR Act) required the Fund to provide $2,000,000.00 in general liability coverage, despite the policy limit of $100,000.00 for uninsured motorists. The trial court also held that the $197,193.75 in workers\u2019 compensation that plaintiff had received could not be directly set off from the coverage amount. Rather, the trial court held, the workers\u2019 compensation damages constituted a lien, leaving the amount set off from Warren County\u2019s coverage to be determined by the trial court.\nDefendants appeal those two orders of the trial court. For the reasons stated below, we reverse in part and affirm in part.\nARGUMENTS\nI.\nDefendants argue that the trial court erred when it ordered the Fund to provide $2,000,000.00 in coverage after determining that the policy was governed by the MVSR Act. We agree.\nWe review a trial court\u2019s construction of statutory provisions de novo. Ramey v. Easley, 178 N.C. App. 197, 199, 632 S.E.2d 178, 180 (2006) (citations omitted).\nBy its 6 December 2006 order, the trial court concluded that N.C. Gen. Stat. \u00a7 20-279.32 exempted county-owned vehicles from the MVSR Act. Despite this exemption, the trial court further concluded that, because Warren County had purchased insurance for its vehicles, the insurance policy itself was subject to the MVSR Act and \u201cshould be held to the same standards and laws as other automobile policies written in this state].]\u201d Under the trial court\u2019s reasoning, N.C. Gen. Stat. section 20-279.21 of the MVSR Act would have required Warren County to specifically select that it wanted the coverage for uninsured motorist claims to be different than its general motor vehicle liability coverage limit, which was $2,000,000.00. However, \u201cWarren County did not specifically select a different uninsured/ underinsured motorist coverage limit[.]\u201d Since the trial court determined that the policy was subject to the MVSR Act, the trial court held that \u201cthe coverage limits for uninsured motorists [under Warren County\u2019s policy] ... is [sic] the same as those selected for liability coverage.\u201d As such, the trial court ruled that the Fund was required to provide $2,000,000.00, rather than $100,000.00, in coverage for plaintiff\u2019s accident.\nThe question on appeal, therefore, is whether the vehicle insurance policy between Warren County and the Fund is actually subject to the MVSR Act. We reverse the trial court on this point and hold that the policy is not subject to the MVSR Act and that the uninsured motorist coverage limit applies to plaintiff\u2019s claim.\nThe MVSR Act\u2019s provisions do not apply to the policy between Warren County and the Fund because the Act itself specifically exempts county-owned vehicles and accidents involving county employees in the line of employment:\nThis Article does not apply to any motor vehicle owned by a county or municipality of the State of North Carolina, nor does it apply to the operator of a vehicle owned by a county or municipality of the State of North Carolina who becomes involved in an accident while operating such vehicle in the course of the operator\u2019s employment as an employee or officer of the county or municipality.\nN.C. Gen. Stat. \u00a7 20-279.32 (2007). Both parties agree that the vehicle driven by plaintiff during the accident was owned by Warren County and that plaintiff was operating the vehicle in the.course of her employment. As such, the plain language of the statute itself excludes its application to these facts, which means that Warren County was not obligated to specifically select that its uninsured liability coverage would be less than $2,000,000.00.\nAdditionally, this precise scenario has been addressed by our Supreme Court. In Watson v. American National Fire Insurance Company, the plaintiff\u2019s vehicles were excluded from the MVSR Act by N.C. Gen. Stat. \u00a7 20-279.32, but the plaintiff argued that his insurance policy itself was still subject to N.C. Gen. Stat. \u00a7 20-279.21(b)(4)\u2019s requirement that he specifically select uninsured and underinsured motorist coverage limits. 106 N.C. App. 681, 685-86, 417 S.E.2d 814, 817 (1992). When the case reached our Supreme Court, the Court held that \u201c[b]y its plain words N.C.G.S. \u00a7 20-279.32 says that N.C.G.S. \u00a7 20-279.21(b)(4) does not apply in this case. The plaintiff has only such coverage as is provided in the policy.\u201d Watson v. American National Fire Ins. Co., 333 N.C. 340, 340, 425 S.E.2d 696, 697 (1993). As in Watson, the vehicle in the present case is specifically excluded from the MVSR Act\u2019s provisions, and, therefore, Warren County was not obligated to specifically select its uninsured motorist coverage per N.C. Gen. Stat. \u00a7 20-279.21(b)(4). Accordingly, the coverage for plaintiff\u2019s accident is capped at $100,000.00 as specified in the policy. Plaintiff contends that the \u201ccourt\u2019s rationale [in Watson] implies that the vehicles . . . were exempt from the Motor Vehicle Safety and Responsibility Act because there are [additional Federal Interstate Commerce] regulations governing those policies.\u201d However, our Supreme Court specifically stated that .\u201c[i]t is not the [Federal Interstate Commerce] regulations that preempt the plaintiff from underinsured motorist coverage. It is the statutes of this state which do not provide for underinsured motorist coverage in this case.\u201d Watson, 333 N.C. at 340, 425 S.E.2d at 697-98.\nFor the reasons stated above, we hold that the trial court erred by concluding as a matter of law that the policy between Warren County and the Fund was subject to the MVSR Act. Therefore, Warren County was not required to specifically select that its uninsured motorist coverage would be less than $2,000,000.00, and the maximum coverage for plaintiff\u2019s accident is capped at $100,000.00, per the language of the policy with the Fund.\nII.\nDefendants next argue that the trial court erred as a matter of law by holding that the $197,193.75 that plaintiff had received in workers\u2019 compensation could not be directly set off from the coverage limits in Warren County\u2019s policy. We disagree.\nThe policy between Warren County and the Fund provides that any amount paid by workers\u2019 compensation would be directly set off from the policy\u2019s coverage limit, which, as determined above, is $100,000.00 in this particular instance. \u201c[T]he purpose of set-off provisions is to prevent double recoveries\u201d that would allow a plaintiff to recover damages from both a third party under motor vehicle insurance and from her employer\u2019s workers\u2019 compensation fund. N.C. Counties Liability & Prop. Joint Risk Mgmt. Agency v. Curry, 191 N.C. App. 217, 224, 662 S.E.2d 678, 683 (2008) (citation omitted). In the present case, the trial court held that the set-off provision was in direct conflict with N.C. Gen. Stat. \u00a7 97-10.2. This statute allows the trial court to award a lien to an employer for any damages recovered by an injured employee from a third party, so that the employer does not have to pay the entire cost of its employee\u2019s injury while the employee receives compensation from the third party. See Allen v. Rupard, 100 N.C. App. 490, 493-94, 397 S.E.2d 330, 332 (1990). However, the amount of this lien is in the discretion of the trial court, which could \u201callow[] plaintiff a double recovery at the expense of the employer or carrier[.]\u201d Id. at 494, 397 S.E.2d at 332 (quotations and citation omitted). The language of the policy in the present case would not have left the amount of set-off to the trial court\u2019s discretion, but rather would have required the full amount of the damages awarded to plaintiff under workers\u2019 compensation to be set off.\nThe policy between Warren County and the Fund specifically states that \u201c[i]f any of the provisions of this Contract conflict with the laws or statutes of any jurisdiction in which this contract applies, this Contract is amended to conform to such laws or statutes.\u201d The language in the policy calling for the entire amount of plaintiff\u2019s worker compensation award to be set off from the policy limits is in direct conflict with this Court\u2019s interpretation of N.C. Gen. Stat. \u00a7 97-10.2, which leaves that determination to the sound discretion of the trial court judge. Id.; Pollard v. Smith, 90 N.C. App. 585, 588, 369 S.E.2d 84, 86 (1988), rev\u2019d on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989). As such, the policy itself dictates that its language addressing set-offs be amended in accordance with the holdings of Allen and Pollard, leaving this matter to the discretion of the trial judge.\nAdditionally, this Court\u2019s recent decision in Curry concerned a policy between the Fund and another North Carolina County that contained precisely the same language as the policy in the present case. 191 N.C. App. at 218, 662 S.E.2d at 679. In Curry, this Court held:\n[Tjhe structure and language of the policy support [the plaintiffs] interpretation of the set-off provisions as requiring a deduction from the total damages rather than a deduction from the policy limits. Even though [the Fund\u2019s] view is also reasonable, the existence of two reasonable constructions means that the policy ... is ambiguous. Under well-established principles, this ambiguity requires that we accept the construction that favors the insured.\nId. at 224, 662 S.E.2d at 682-83 (citation omitted). That is, the policy was ambiguous as to precisely how the set-off would be calculated, and, therefore, the language was construed against the Fund.\nCurry involved a policy with the exact same language as the present case, and its rationale was based upon a survey of how other states had handled similar policy language. We do not agree with defendants\u2019 argument that Curry should be overruled as \u201cclearly erroneous.\u201d As defendants themselves concede, our Supreme Court has held that \u201c[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Our Supreme Court chose not to review this Court\u2019s decision in Curry. N.C. Counties Liab. & Prop. Joint Risk Mgmt. Agency v. Curry, 362 N.C. 509, 668 S.E.2d 29 (2008). As such, Curry is controlling here, and the language in the policy between Warren County and the Fund is construed in plaintiff\u2019s favor.\nFor the reasons stated above, we affirm the trial court\u2019s order and hold that any amount paid by Warren County to plaintiff through the Workers\u2019 Compensation Act shall not be deducted from the coverage limits, but instead shall constitute a lien against any amount recovered in accordance with N.C. Gen. Stat. \u00a7 97-10.2.\nReversed in part, affirmed in part.\nJudges BRYANT and STEELMAN concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Banzet, Thompason, & Styers, PLLC, by Mitchell G. Styers, for plaintiff.", "Teague, Campbell, Dennis & Gorham, LLP, by George H. Pender, William A. Bulfer, and Courtney C. Britt, for defendants." ], "corrections": "", "head_matter": "REGINA K. NOLAN, Plaintiff v. DERRICK LAMONT COOKE and WARREN COUNTY, a body politic and corporate, NORTH CAROLINA ASSOCIATION OF COUNTY COMMISSIONERS\u2014Liability and Property Insurance Pool Fund, an unincorporated Association, Defendants\nNo. COA08-1371\n(Filed 4 August 2009)\n1. Insurance\u2014 uninsured motorist \u2014 county insurance pool fund \u2014 North Carolina Motor Vehicle Safety and Responsibility Act\nThe trial court erred when it ordered the NC Association of County Commissioners Liability and Property Insurance Pool Fund (Fund) to provide $2,000,000 in coverage to plaintiff deputy sheriff, who was injured during a motor vehicle collision with an uninsured driver, after erroneously determining the policy was governed by North Carolina Motor Vehicle Safety and Responsibility Act (MVSR Act) because: (1) the MVSR Act\u2019s provisions do not apply to the policy between the county and the Fund since the Act itself specifically exempts county-owned vehicles and accidents involving county employees in the line of employment, and both parties agree the vehicle driven by plaintiff during the accident was owned by the county and that plaintiff was operating the vehicle in the course of her employment; (2) the county was not obligated to specifically select that its uninsured liability coverage would be less than $2,000,000 when the plain language of N.C.G.S. \u00a7 20-279.32 itself excluded its application to these facts; and (3) the coverage for plaintiff\u2019s accident was capped at $100,000 as specified in the policy.\n2. Workers\u2019 Compensation\u2014 set-off \u2014 county insurance policy\nThe trial court did not err as a matter of law by holding that the $197,193.75 that plaintiff deputy sheriff had received in workers\u2019 compensation could not be directly set off from the coverage limits in the county\u2019s policy because: (1) the language of the pertinent policy would not have left the amount of set-off to the trial court\u2019s discretion, but rather would have required the full amount of damages awarded to plaintiff under workers\u2019 compensation to be set off; (2) the language in the policy calling for the entire amount of plaintiff\u2019s workers\u2019 compensation award to be set off from the policy limits was in direct conflict with the Court of Appeals\u2019s interpretation of N.C.G.S. \u00a7 97-10.2, which left that determination to the sound discretion of the trial court judge; and (3) Curry, - N.C. App. -, is controlling in this case, and thus any ambiguous language in the policy between the county and the Fund is construed in plaintiff\u2019s favor. Any amount paid by the county to plaintiff through the Workers\u2019 Compensation Act shall not be deducted from the coverage limits, but instead shall constitute a lien against any amount recovered in accordance with N.C.G.S. \u00a7 97-10.2.\nAppeal by defendants from order entered 4 December 2006 by Judge Henry W. Hight, Jr., in Warren County Superior Court. Heard in the Court of Appeals 25 March 2009.\nBanzet, Thompason, & Styers, PLLC, by Mitchell G. Styers, for plaintiff.\nTeague, Campbell, Dennis & Gorham, LLP, by George H. Pender, William A. Bulfer, and Courtney C. Britt, for defendants." }, "file_name": "0667-01", "first_page_order": 693, "last_page_order": 700 }