{ "id": 4179516, "name": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. MITCHELL DREW JENKINS, Defendant", "name_abbreviation": "North Carolina Farm Bureau Mutual Insurance v. Jenkins", "decision_date": "2010-10-19", "docket_number": "No. COA09-1523", "first_page": "506", "last_page": "514", "citations": [ { "type": "official", "cite": "207 N.C. App. 506" } ], "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": "621 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634399 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/621/0644-01" ] }, { "cite": "513 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131929 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0264-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "pin_cites": [ { "page": "(b)(4)" }, { "page": "(b)(4)" }, { "page": "(b)(4)" } ], "opinion_index": 0 }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "677 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "850", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "174 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352775 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/174/0601-01" ] } ], "analysis": { "cardinality": 640, "char_count": 17052, "ocr_confidence": 0.721, "pagerank": { "raw": 7.864860140279792e-08, "percentile": 0.4593883658854242 }, "sha256": "67f698fda945eea41362f3a00573d37b352585603fbec0cc420b49fff2a73bea", "simhash": "1:852287348be76c48", "word_count": 2616 }, "last_updated": "2023-07-14T16:56:31.092499+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER, JR., Robert N. concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. MITCHELL DREW JENKINS, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals a summary judgment order allowing summary judgment in favor of plaintiff for a declaratory judgment that defendant was not entitled to underinsured motorist coverage. As we have concluded that one of the policy holders was given the opportunity to reject or select differing coverage amounts of underinsured motorist coverage, there are no genuine issues of material fact and plaintiff is entitled to judgment as a matter of law. Accordingly, we affirm the trial court\u2019s entry of summary judgment in favor of plaintiff.\nI. Background\nOn 2 May 2008, plaintiff North Carolina Farm Bureau Mutual Insurance Company filed a declaratory judgment action against Mitchell Drew Jenkins. Plaintiff alleged that on 4 November 2006 defendant was a passenger in his Toyota vehicle, which was driven by his brother, Jamie Matthew Jenkins, when it collided with a vehicle driven by Candice Renee Fore. Defendant was injured in the collision. Plaintiff alleged further that\n5. The Jenkins vehicle was covered by a personal auto policy (policy no. APM 4763616) issued by plaintiff to defendant which provided bodily injury liability coverage in the amount of $50,000 per person / $100,000 per accident.\n6. On 11/04/2006 Jamie Matthew Jenkins was a named insured of a personal auto policy (policy no. APM 4098068) issued by plaintiff to Jamie Jenkins and his spouse (Sharon D. Jenkins), which also provided bodily injury liability coverage in the amount of $50,000 per person / $100,000 per accident.\n7. Plaintiff has offered to pay to defendant the $50,000 of liability coverage of the policy issued to defendant (APM 4763616) which covered the vehicle involved in the accident. Plaintiff has also offered to pay to defendant the $50,000 of liability coverage of the policy issued to Jamie Jenkins and his spouse (APM 4098068).\n8. Defendant contends his damages exceed $100,000 and that he is entitled to receive from plaintiff underinsured motorists (UIM) coverage pursuant to one or both of the Farm Bureau policies stated above.\n9. Plaintiff disagrees with defendant\u2019s contention and contends that defendant is not entitled to any UIM coverage. The Farm Bureau policy issued to defendant provides UIM coverage in the amount of $50,000 per person /$100,000 per accident but defendant is not entitled to any UIM coverage regarding the 11/04/2006 accident because the limit of liability of the UIM coverage is not greater than the limit of liability of the liability coverage. The Farm Bureau policy issued to Jamie Jenkins and his spouse does not provide any UIM coverage.\nPlaintiff requested \u201ca declaratory judgment that defendant is not entitled to any UIM coverage regarding the 11/04/2006 accident in question^]\u201d On 2 July 2008, defendant answered plaintiff\u2019s complaint and counterclaimed requesting, inter alia, \u201c[t]he Court adjudge that he is entitled to underinsured coverage at the highest available limit of $1,000,000.00 pursuant to the policies issued by Plaintiff Farm Bureau].]\u201d\nOn or about 16 February 2009, defendant filed a motion for summary judgment which stated defendant\u2019s argument as to the applicability of UIM coverage of $1,000,000.00 as follows:\nThe grounds for Defendant\u2019s Motion include that there is no genuine issue of material fact that neither Jamie Jenkins nor Sharon Jenkins were provided, pursuant to N.C.G.S. \u00a7 20-279.21(b)(4), an opportunity, at any point between the inception of North Carolina Farm Bureau Policy No. APM 4098068 on August 15, 1994, and the date of loss on November 4, 2006, to select uninsured/underinsured motorist coverage limits greater than the liability limits appearing on North Carolina Farm Bureau Policy No. APM 4098068, and therefore, under N.C.G.S. \u00a7 20-279.21(b)(4), Plaintiff, under North Carolina Farm Bureau Policy No. APM 4098068, must afford to Defendant the statutory maximum uninsured/underinsured motorist coverage of $1,000,000.00.\nIn support, hereof, Defendant shows the court that... there is no selection/rejection form for North Carolina Farm Bureau Policy No. APM 4098068, and it further appearing that there is an absence of any evidence establishing the named insureds were provided with an opportunity to select or reject uninsured or combined uninsured/underinsured coverage at limits different than the liability limits[.]\nOn 6 May 2009, plaintiff filed a motion for summary judgment alleging that \u201cSharon [Jenkins] was offered UIM coverage at the various amounts available up to $1,000,000 and she chose not to purchase UIM coverage.\u201d Plaintiff filed several affidavits with its motion. Ms. Sharon Jenkins submitted an affidavit that stated the following:\nI chose uninsured motorists coverage in the amount of $50,000 for each person, and $100,000 for each accident. I chose not to purchase underinsured motorists coverage. I cannot remember whether I signed a Selection/Rejection form .... It is possible that I signed one. I simply do not remember one way or the other.\nI understood then and I understand now that I can purchase uninsured motorists coverage or combined uninsured/underinsured motorists coverage in various amounts up to $1,000,000. I have renewed this same personal auto policy every six months since 1994 and I have never changed my decision to buy uninsured motorists coverage but not underinsured motorists coverage.\nVarious employees of plaintiff also submitted affidavits regarding the company\u2019s procedures and routine practices. On 18 June 2009, the trial court allowed plaintiff\u2019s motion for summary judgment, denied defendant\u2019s motion for summary judgment, and dismissed defendant\u2019s counterclaim with prejudice determining \u201cthat defendant is not entitled to any UIM coverage regarding the 11/04/2006 accidental\u201d Defendant appeals.\nII. Summary Judgment\nDefendant contends that the trial court erred in allowing summary judgment in favor of plaintiff because Williams v. Nationwide, 174 N.C. App. 601, 621 S.E.2d 644 (2005) mandates that \u201cDefendant is entitled to a judgment as a matter of law declaring that North Carolina Farm Bureau Mutual Insurance Company Policy APM4098068 provides UIM coverage with limits of $1,000,000 per person and $1,000,000 per accident\u00e9]\u201d (Original in all caps.) We disagree.\nOur standard of review when the trial court allows an order for summary judgment \u201cis de novo, and we view the evidence in the light most favorable to the non-movant.\u201d Scott & Jones v. Carlton Ins. Agency Inc., \u2014 N.C. App. \u2014, \u2014, 677 S.E.2d 848, 850 (2009) (citation omitted). The standard of review for an order allowing\na motion for summary judgment requires a two-part analysis of whether, (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.\nVon Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000) (citation and quotation marks omitted), aff\u2019d per curiam, 353 N.C. 445, 545 S.E.2d 210 (2001).\nOur Court recently decided the case of Nationwide Mut. Ins. Co. v. Burgdoff, \u2014 N.C. App. \u2014, \u2014 S.E.2d (Sept. 7, 2010) (No. COA091117). In Burgdoff, this Court analyzed previous cases, including Williams, and concluded that \u201cthe relevant inquiry ... is whether defedants were given the opportunity to reject or select different UIM coverage limits.\u201d Id. at \u2014, \u2014 S.E.2d at-(emphasis in original). The facts in Burgdoff are as follows:\nDonald (\u201cMr. Burgdoff\u2019) and Cynthia (\u201cMrs. Burgdoff\u201d) Burgdoff, both individually and as co-executors of the Estate of Patricia Eleanor Burgdoff (collectively \u201cdefendants\u201d), appeal an order granting summary judgment to Nationwide Mutual Insurance Company (\u201cplaintiff\u2019)....\nIn October 1995, Mrs. Burgdoff met with plaintiff\u2019s licensed insurance agent Susan Bare (\u201cMs. Bare\u201d), in order to obtain automobile insurance. Mrs. Burgdoff and Ms. Bare discussed the types of coverages available. On the basis of these discussions, Mrs. Burgdoff completed an \u201cAutomobile Insurance Application,\u201d which requested, inter alia, bodily injury insurance coverage for uninsured and underinsured motorists (\u201cUM/UIM\u201d), in the maximum amount of $100,000 per person and $300,000 per accident (\u201c100/300\u201d). On 4 October 1995, Mrs. Burgdoff signed a \u201cPersonal Auto Closing Statement\u201d (\u201cthe closing statement\u201d). However, Mrs. Burgdoff did not execute a North Carolina Rate Bureau UM/UIM Selection/Rejection Form (\u201cselection/rejection form\u201d) when she signed the closing statement. Defendants were then issued an automobile insurance policy by plaintiff, effective 4 October 1995 (\u201cthe Burgdoff policy\u201d). The Burgdoff policy, with its corresponding coverage limits, has been repeatedly renewed by defendants and was still in effect at the time of the filing of this action.\nOn 8 December 2006, defendants\u2019 eight-year-old daughter, Patricia Eleanor Burgdoff (\u201cPatricia\u201d), was killed in an automobile accident. As a result of the accident, defendants filed a wrongful death action against Ross Edward Neese (\u201cNeese\u201d) in Rowan County Superior Court. At the time of the accident, Neese had a liability insurance policy in effect with North Carolina Farm Bureau Insurance Group (\u201cthe Neese policy\u201d). The Neese policy contained a personal liability limit of $100,000 per person.\nBecause defendants sought damages from Neese in excess of the $100,000 personal liability limit contained in the Neese policy, they notified plaintiff of their intention to seek recovery under the UIM provision of the Burgdoff policy... .\nOn 24 September 2009, plaintiff filed a \u201cComplaint for Declaratory Judgment\u201d under Rule 57 of the North Carolina Rules of Civil Procedure in Rowan County Superior Court. Plaintiff sought a determination of the amount of UIM coverage available to defendants under the Burgdoff policy. Plaintiff and defendants each filed motions for summary judgment. After a hearing on 14 May 2009, the trial court granted summary judgment to plaintiff and issued a Declaration of Judgment that defendants were entitled to UM/UIM coverage in the amount of 100/300. Defendants appeal.\nId. at \u2014, S.E.2d at \u2014.\nN.C. Gen. Stat. \u00a7 20-279.21(b)(4), the relevant statute here and in Burgdoff, provided:\nThe coverage required under this subdivision shall not be applicable where any insured named in the policy rejects the coverage. An insured named in the policy may select different coverage limits as provided in this subdivision. If the named insured does not reject underinsured motorist coverage and does not select different coverage limits, the amount of underinsured motorist coverage shall be equal to the highest limit of bodily injury liability coverage for any one vehicle in the policy. Once the option to reject underinsured motorist coverage or to select different coverage limits is offered by the insurer, the insurer is not required to offer the option in any renewal, reinstatement, substitute, amended, altered, modified, transfer, or replacement policy unless a named insured makes a written request to exercise a different option. The selection or rejection of underinsured motorist coverage by a named insured or the failure.to select or reject is valid and binding on all insureds and vehicles under the policy.\nRejection of or selection of different coverage limits for underinsured motorist coverage for policies under the jurisdiction of the North Carolina Rate Bureau shall be made in writing by the named insured on a form promulgated by the Bureau and approved by the Commissioner of Insurance.\nN.C. Gen. Stat. \u00a7 20-279.21(b)(4) (Nov. 1993).\nIn Burgdoff, this Court went on to consider the Supreme Court case of State Farm Mut. Auto. Ins. Co. v. Fortin, 350 N.C. 264, 513 S.E.2d 782 (1999) and Williams and determined that\n[t]he per se rule suggested by defendants, that the Williams analysis must apply whenever an insurer does not produce a valid selection/rejection form, cannot be reconciled with our Supreme Court\u2019s holding in Fortin. The facts in Fortin clearly indicate that the insured, upon renewal, was not provided with the proper North Carolina Rate Bureau selection/rejection form, but this failure of the insurance company to provide the form did not result in an increase in UIM coverage beyond the statutory limits of N.C. Gen. Stat. \u00a7 20-279.21(b)(4). Along these same lines, the deciding factor for the Williams Court was not that the insured was not provided with the proper selection/rejection form; instead, the Court emphasized that the insured was not provided with any opportunity at all to even consider UIM coverage. . . . Therefore, the relevant inquiry in determining whether Williams applies is whether defendants were given the opportunity to reject or select different UIM coverage limits.\nId. at \u2014 , \u2014 S.E.2d at \u2014 (emphasis in original). Our Court in Burgdoff went on to reverse the summary judgment order because there was \u201ca genuine issue of material fact as to whether plaintiff provided defendants with the opportunity to reject or select different UIM coverage Iimits[.]\u201d Id. at \u2014 , \u2014 S.E.2d at \u2014. The evidence presented by the plaintiffs showed that the defendants had been given an \u201copportunity to reject or select different UIM coverage limits.\u201d Id. at \u2014, S.E.2d at \u2014. However, the defendants\u2019 forecast of evidence showed the defendants \u201cwere not informed that they could select an amount of UIM coverage that was different from the amount of liability coverage.\u201d Id. at \u2014, \u2014 S.E.2d at \u2014. Thus, there was \u201ca genuine issue of material fact as to whether plaintiff provided defendants with the opportunity to reject or select different UIM coverage limits[.]\u201d Id. at \u2014, \u2014 S.E.2d at \u2014.\nBased upon Burgdoff the dispositive issue before us is whether there is a genuine issue of material fact as to \u201cwhether defendants were given the opportunity to reject or select different UIM coverage limits.\u201d Id. at \u2014, \u2014 S.E.2d at \u2014. Defendant dedicates a large portion of his brief to argument regarding why plaintiff\u2019s employee\u2019s affidavits regarding \u201croutine business practices\u201d should not be considered competent evidence; however, even if we disregard plaintiffs employee\u2019s affidavits, the affidavit of Ms. Jenkins, the co-policy holder, is dispositive of the question at hand. Ms. Jenkins stated in her affidavit, \u201cI chose not to purchase underinsured motorists coverage\u201d and\nI understood then and I understand now that I can purchase uninsured motorists coverage or combined uninsured/underinsured motorists coverage in various amounts up to $1,000,000. I have renewed this same personal auto policy every six months since 1994 and I have never changed my decision to buy uninsured motorists coverage but not underinsured motorists coverage.\nThis evidence alone establishes Ms. Jenkins was \u201cgiven the opportunity to reject or select different UIM coverage limits.\u201d Id. at \u2014, S.E.2d at \u2014. Her affidavit shows that she was aware of her options as to uninsured/underinsured motorist coverage and that she made a conscious decision not to purchase UIM coverage. Accordingly, Williams does not control this case, see id. at \u2014, \u2014 S.E.2d at \u2014, and summary judgment was properly allowed in favor of plaintiff. Despite the lack of the selection/rejection form, there is no dispute that Ms. Jenkins had the opportunity to reject or select different UIM coverage limits, so plaintiff is entitled to the relief requested, \u201ca declaratory judgment that defendant is not entitled to any UIM coverage regarding the 11/04/2006 accident[.]\u201d\nIII. Conclusion\nAs we conclude that the co-policy holder was provided \u201cthe opportunity to reject or select different \u00daIM coverage limits[,]\u201d id. at \u2014,-S.E.2d at-, we affirm the order of the trial court allowing summary judgment in favor of plaintiff.\nAFFIRMED.\nJudges McGEE and HUNTER, JR., Robert N. concur.\n. According to Sharon D. Jenkins\u2019s affidavit, her name was Sharon Boyd until \u201csometime in 1994[.]\u201d She married Jamie M. Jenkins in 1993 and later changed her last name.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Willardson Lipscomb & Miller, L.L.P., by William F. Lipscomb, for plaintiff-appellee.", "Lewis '& Daggett, Attorneys at Law, P.A., by Douglas E. Nauman, for defendant-appellant.", "Young Moore and Henderson P.A. by Glenn C. Raynor and Bryan G. Scott, for the North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. MITCHELL DREW JENKINS, Defendant\nNo. COA09-1523\n(Filed 19 October 2010)\nInsurance\u2014 underinsured motorist coverage \u2014 no selection form \u2014 opportunity consciously rejected\nSummary judgment was properly entered for plaintiff-insurer in a declaratory judgment action to determine whether defendant was entitled to underinsured motorist (UIM) coverage. Despite the lack of a selection/rejection form, there was no dispute that the co-holder of the policy had the opportunity to reject or select different UIM coverage limits.\nAppeal by defendant from order entered 18 June 2009 by Judge Anderson D. Cromer in Superior Court, Surry County. Heard in the Court of Appeals 28 April 2010.\nWillardson Lipscomb & Miller, L.L.P., by William F. Lipscomb, for plaintiff-appellee.\nLewis '& Daggett, Attorneys at Law, P.A., by Douglas E. Nauman, for defendant-appellant.\nYoung Moore and Henderson P.A. by Glenn C. Raynor and Bryan G. Scott, for the North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0506-01", "first_page_order": 530, "last_page_order": 538 }