{
  "id": 4347644,
  "name": "UNITRIN AUTO AND HOME INSURANCE COMPANY, Plaintiff v. GREGORY SCOTT RIKARD, Executor of the Estate of DELBERT RIKARD and CAROLYN RIKARD, Defendants",
  "name_abbreviation": "Unitrin Auto & Home Insurance v. Rikard",
  "decision_date": "2011-12-06",
  "docket_number": "No. COA11-713",
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  "last_updated": "2023-07-14T22:07:22.966851+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges BRYANT and ELMORE concur."
    ],
    "parties": [
      "UNITRIN AUTO AND HOME INSURANCE COMPANY, Plaintiff v. GREGORY SCOTT RIKARD, Executor of the Estate of DELBERT RIKARD and CAROLYN RIKARD, Defendants"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nThis appeal arises from a car accident which occurred on 25 November 2008 near Shelby. On that date, the car in which seventy-two-year-old Delbert Rikard and his seventy-year-old wife, Carolyn (collectively, \u201cthe Rikards\u201d), were traveling was struck head-on by a car owned by Martha Bennett Allen and driven by Bristol Michelle Leonhardt. The Rikards were seriously injured and endured lengthy hospitalizations, incurring damages in excess of the available liability limits of Allen\u2019s and Leonhardt\u2019s insurance policies. The Rickards then sought additional coverage from Plaintiff Unitrin Auto and Home Insurance Company (\u201cUnitrin\u201d).\nUnitrin insured the Rikards under a combined auto and homeowners liability insurance policy with effective dates of 26 January 2008 through 26 January 2009 (\u201cthe policy\u201d). The declarations page of the policy provides combined uninsured/underinsured (\u201cUM/UIM\u201d) motorist coverage of $50,000 per person and $100,000 per accident. Delbert Rikard first obtained insurance coverage from Unitrin in 2003. Thereafter, Unitrin mailed the Rikards annual renewal packets, each of which contained a declarations page. The declarations page for the policy listed seven attached endorsements including Endorsement AK3847, titled \u201cUM/UIM Rejection/Selection.\u201d Endorsement AK3847 appears in the policy blank and uncompleted. Each time he received a renewal packet, Delbert Rickard paid the premium bill which arrived by separate mailing and received proof of insurance cards for his vehicles, but never read the policy endorsements or signed Endorsement AK3847.\nOn 2 September 2009, Unitrin filed a complaint against the Rickards, seeking a declaration of the limits of UIM coverage available to them under the policy. Unitrin asserted that, because the Rickards never selected a higher UIM amount, the statutory default amount applied. The Rickards contended that, because Unitrin never properly notified them of their option to select a higher UIM amount, they were entitled to the maximum coverage amount.\nOn 3 May 2010, Unitrin moved for summary judgment, which motion the court denied. On 28 November 2010, Delbert Rickard died, and on 19 January 2011, the trial court entered a consent order substituting Defendant Gregory Scott Rikard, Delbert Rickard\u2019s son and executor of his estate, as a defendant in this action. Following a bench trial, the court entered judgment on 23 February 2011, concluding, inter alia, that Unitrin \u201cprovided [the Rikards] with multiple opportunities to select or reject underinsured motorist coverage\u201d by including Endorsement AK3847 in Unitrin\u2019s annual policy renewal mailings. As a result, the court concluded that the statutory default amount of UIM coverage applied under the policy. Defendants appeal, contending this conclusion is not supported by the court\u2019s findings of fact. We affirm.\nOn appeal from a bench trial, we review only \u201cwhether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u201d Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (citation omitted), disc. review denied, 354 N.C. 365, 556 S.E.2d 577 (2001).\nThe Financial Responsibility Act (the \u201cAct\u201d) mandates that an insured must be notified of the option to select UIM coverage \u201cin an amount not to be less than the financial responsibility amounts for bodily injury liability as set forth in G.S. 20-279.5 [$25,000 and $50,000] nor greater than one million dollars.\u201d N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (2008). The Act also contains a default provision: \u201cIf 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 [and property damage] liability coverage for any one vehicle in the policy.\u201d Id. Further,\n[w]here the insurer attempts to notify the insured of the $1,000,000.00 maximum UM/UIM coverage, but there is neither a valid rejection of that coverage nor a selection of different coverage limits, an insured is entitled to the highest limit of bodily injury liability coverage on the insured\u2019s policy. However, if there is a total failure by the insurer to notify the insured that he or she may purchase up to $ 1,000,000.00 in UM/UIM coverage, then the insured is entitled to $1,000,000.00 in coverage.\nNationwide Prop. & Cas. Ins. Co. v. Martinson, __ N.C. App. _, _, 701 S.E.2d 390, 396 (2010) (internal citations and quotation marks omitted), disc. review denied, _ N.C. _, 706 S.E.2d 256 (2011).\nIn Martinson, the insurance company presented evidence it had mailed the insureds a UM/UIM selection/rejection form. Id. at _, 701 S.E.2d at 397-98. However, the insureds claimed they never received or saw the form prior to the accident for which they sought UM coverage. Id. We held \u201c[t]he mailing of the selection/rejection form was sufficient to preclude a holding that a total failure to notify occurred.\u201d Id. at _, 701 S.E.2d at 399. In light of the identical operative language in subsections (b)(3) and (b)(4), we explicitly extend the reasoning of Martinson to questions of UIM coverage and conclude that the findings of fact here fully support the challenged conclusion of law.\nDefendants do not challenge the trial court\u2019s findings of fact and concede they are supported by competent evidence. Finding of fact 7 states that the Rickards renewed their policy with Unitrin on five occasions prior to the 25 November 2008 accident. Finding 18 states that a UM/UIM selection/rejection form was included in each renewal packet Unitrin mailed to the Rickards. These findings fully support the trial court\u2019s conclusion that Unitrin \u201cprovided [the Rikards] with multiple opportunities to select or reject underinsured motorist coverage\u201d and its judgment that the applicable amount of UIM coverage is the default amount, rather than the maximum amount. Accordingly, the trial court\u2019s judgment is\nAFFIRMED.\nJudges BRYANT and ELMORE concur.\n. Effective 1 February 2010, N.C. Gen. Stat. \u00a7 20-279.21 was amended. The amended version of the statute is not at issue here.\n. In Martinson, we considered subsection (b)(3) of N.C. Gen. Stat. \u00a7 20-279.21 which concerns UM coverage, rather than subsection (b)(4) which concerns UIM coverage. However, the relevant sentence in each subsection (setting default coverage when an insured neither accepts nor rejects UM/UIM limits) is identical except for the words \u201cuninsured\u201d and \u201cunderinsured.\u201d",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "Brotherton Ford Yeoman Berry & Weaver, PLLC, by Joseph F Brotherton and Steven P. Weaver, for Plaintiff",
      "Cerwin Law Firm, P.C., by Todd R. Cerwin, for Defendants."
    ],
    "corrections": "",
    "head_matter": "UNITRIN AUTO AND HOME INSURANCE COMPANY, Plaintiff v. GREGORY SCOTT RIKARD, Executor of the Estate of DELBERT RIKARD and CAROLYN RIKARD, Defendants\nNo. COA11-713\n(Filed 6 December 2011)\nInsurance \u2014 underinsured motorist coverage \u2014 selection or rejection \u2014 default amount\nThe trial court did not err in an action arising from an automobile accident by concluding that plaintiff provided defendants with multiple opportunities to select or reject underinsured motorist (UIM) coverage and its judgment that the applicable amount of UIM coverage was the default amount rather than the maximum amount.\nAppeal by Defendants from judgment entered 23 February 2011 by Judge Richard L. Doughton in Cleveland County Superior Court. Heard in the Court of Appeals 9 November 2011.\nBrotherton Ford Yeoman Berry & Weaver, PLLC, by Joseph F Brotherton and Steven P. Weaver, for Plaintiff\nCerwin Law Firm, P.C., by Todd R. Cerwin, for Defendants."
  },
  "file_name": "0393-01",
  "first_page_order": 403,
  "last_page_order": 406
}