{ "id": 6776133, "name": "NATIONWIDE MUTUAL INSURANCE COMPANY, INC., Plaintiff v. INTEGON NATIONAL INSURANCE COMPANY and STATE NATIONAL INSURANCE COMPANY, Defendants", "name_abbreviation": "Nationwide Mutual Insurance v. Integon National Insurance", "decision_date": "2014-01-21", "docket_number": "No. COA13-640", "first_page": "44", "last_page": "56", "citations": [ { "type": "official", "cite": "232 N.C. App. 44" } ], "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": "126 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708377 ], "opinion_index": -1, "case_paths": [ "/nc-app/126/0042-01" ] }, { "cite": "611 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632685, 12632686 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0832-01", "/se2d/611/0832-02" ] }, { "cite": "671 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642475 ], "weight": 6, "year": 2009, "pin_cites": [ { "page": "34" }, { "page": "32" }, { "page": "97" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/se2d/671/0031-01" ] }, { "cite": "600 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631654, 12631655, 12631656, 12631657, 12631658, 12631659 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/600/0901-06", "/se2d/600/0901-01", "/se2d/600/0901-02", "/se2d/600/0901-03", "/se2d/600/0901-04", "/se2d/600/0901-05" ] }, { "cite": "165 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12631627, 12631637 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/600/0899-11", "/se2d/600/0900-02" ] }, { "cite": "641 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637969 ], "weight": 9, "year": 2007, "pin_cites": [ { "page": "840-42", "parenthetical": "noting that identical language is mutually repugnant, requiring that neither is given effect, and applying the rule to non-identical excess clauses" }, { "page": "842", "parenthetical": "noting the differences between two policies' excess clauses in both form and effect" }, { "page": "841" }, { "page": "840" }, { "page": "842" }, { "page": "841-42", "parenthetical": "alterations in original" }, { "page": "842", "parenthetical": "emphasis added" }, { "page": "843, 844" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0838-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "409 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "2004 WL 3120959", "category": "reporters:specialty_west", "reporter": "WL", "pin_cites": [ { "page": "*23-24" } ], "opinion_index": 0 }, { "cite": "359 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800470 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0421-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "pin_cites": [ { "parenthetical": "\" '[Persons insured' means the named insured and while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise[.]\"" } ], "opinion_index": 0 }, { "cite": "195 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164762 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "92" }, { "page": "97" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0088-01" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] }, { "cite": "539 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135640 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0240-01" ] }, { "cite": "524 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 2000, "pin_cites": [ { "page": "393" }, { "page": "393", "parenthetical": "\"[T]here is no need to consider the class into which an insured falls or to prorate coverage where, as here, the 'other insurance' clauses are not mutually repugnant, but may be read together harmoniously.\"" }, { "page": "387-88" }, { "page": "388" }, { "page": "392-93", "parenthetical": "emphasis added" }, { "page": "392", "parenthetical": "\"By contrast, plaintiffs here are second-class insureds under Federated Mutual's policy, but are first-class insureds under State Farm's policy[.]\"" }, { "page": "392" }, { "page": "392-93" }, { "page": "393" }, { "page": "392-93", "parenthetical": "\"[Pjlaintiffs here are second-class insureds under Federated Mutual's policy, but are first-class insureds under State Farm's policy; the term 'you' in the different policies refers to different individuals; and the 'other insurance' provisions in the policies are not identical.\"" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239477 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "330" }, { "page": "330" }, { "page": "330" }, { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0320-01" ] }, { "cite": "2004 WL 1610050", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 2004, "pin_cites": [ { "page": "*3", "parenthetical": "unpublished" }, { "page": "*3" } ], "opinion_index": 0 }, { "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", "weight": 2, "year": 1995, "pin_cites": [ { "page": "884" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920692 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "690" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0686-01" ] }, { "cite": "369 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525226 ], "year": 1988, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0507-01" ] }, { "cite": "712 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "386", "parenthetical": "\"Due to the excess clauses being identically worded, it is impossible to determine which policy is primary, and thus the excess clauses must be deemed mutually repugnant, with neither clause being given effect.\" (quotation marks and citation omitted)" }, { "page": "386", "parenthetical": "noting where identical language exists, a presumption of repugnancy exists" } ], "opinion_index": 0 }, { "cite": "212 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4078923 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "630", "parenthetical": "\"Due to the excess clauses being identically worded, it is impossible to determine which policy is primary, and thus the excess clauses must be deemed mutually repugnant, with neither clause being given effect.\" (quotation marks and citation omitted)" }, { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/212/0623-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where 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.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where 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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "182 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8171175 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "262-64", "parenthetical": "noting that identical language is mutually repugnant, requiring that neither is given effect, and applying the rule to non-identical excess clauses" }, { "page": "264" }, { "page": "262" }, { "page": "264" }, { "page": "265, 267" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0259-01" ] }, { "cite": "514 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1999, "pin_cites": [ { "page": "293" }, { "page": "293", "parenthetical": "agreeing with appellant that the \" 'other insurance' clauses in this case, although identically worded do not have identical meanings and are therefore not mutually repugnant\"" }, { "page": "293", "parenthetical": "alterations in original" }, { "page": "321-22" } ], "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": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0076-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "page": "632-33", "parenthetical": "quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "483 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "483 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708377 ], "weight": 5, "pin_cites": [ { "page": "52" }, { "page": "52" }, { "page": "52" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0042-01" ] } ], "analysis": { "cardinality": 943, "char_count": 29564, "ocr_confidence": 0.73, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18222239983875507 }, "sha256": "4624400898ec34351f472b21dfac070f06196f63cb1f0f9318a04badcbce3009", "simhash": "1:e9207cca2c7eaa5e", "word_count": 4789 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and CALABRIA concur." ], "parties": [ "NATIONWIDE MUTUAL INSURANCE COMPANY, INC., Plaintiff v. INTEGON NATIONAL INSURANCE COMPANY and STATE NATIONAL INSURANCE COMPANY, Defendants" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nPlaintiff Nationwide Mutual Insurance Company (\u201cPlaintiff\u2019) appeals from a 27 March 2013 order granting summary judgment in favor of Integon National Insurance Company (\u201cIntegon\u201d) and State National Insurance Company (\u201cState National\u201d). Upon review, we find the trial court erred by not applying a pro rata distribution of the credit paid by the underinsured motorist\u2019s insurance provider to all three underinsured motorist insurance (\u201cUIM\u201d) policy providers. We reach this conclusion because the respective excess clauses were (i) mutually repugnant and (ii) because the claimant was a Class I insured under all three UIM policies. Under North Carolina Farm Bureau v. Bost, 126 N.C. App. 42, 483 S.E.2d 452 (1997), the trial court was required to allocate credits and liabilities amongst the three UIM policyholders on a pro rata basis if both of these conditions are met. We thus reverse the trial court and remand for the trial court to enter summary judgment for Plaintiff.\nI. Facts & Procedural History\nThis declaratory judgment action arose out of an insurance coverage question allocating proceeds of three separate UIM policies to pay a wrongful death claim. Plaintiff filed its original complaint for declaratory judgment on 8 June 2012, which was amended by consent on 7 December 2012. Integon and State National timely answered Plaintiff\u2019s complaint on 10 January 2013 and 17 January 2013 respectively. All parties moved for summary judgment. The summary judgment motions were heard by Judge Carl R. Fox in Wake County Superior Court on 7 March 2013. Judge Fox denied Plaintiff\u2019s motion for summary judgment and allowed Defendants\u2019 motions on 27 March 2013. Plaintiff filed a timely written notice of appeal on 18 April 2013. Plaintiff and Defendants stipulated to the following facts.\nA three-vehicle accident occurred on 23 August 2011, involving the decedent Nelson Lee Clark (\u201cClark\u201d), the tortfeasor Gaye Holman Ikerd (\u201cIkerd\u201d), and Lucille Pitts (\u201cPitts\u201d). Ikerd ran a red light and collided with Clark\u2019s motorcycle. Pitts was driving a separate vehicle that ran over Clark after he was thrown from his motorcycle. Ikerd admitted liability to Clark\u2019s estate, and her liability insurer paid the policy limit of $50,000. Pitts was not found liable for the incident.'\nClark was insured for UIM coverage under three policies: (1) the Integon policy, number NCV 9474162, issued to Nelson Clark as the named insured and covering the motorcycle that Clark was driving at the time of the accident in the amount of $100,000 per person; (2) the State National policy, number 47 NCQD 118505586, issued to Nelson Clark as the named insured in the amount of $50,000 per person; and (3) a policy issued by Plaintiff, number 6132 019939, to Walter Lee and Nancy Ikard Clark as named insureds in the amount of $50,000 per person. Mr. and Mrs. Clark were the decedent\u2019s parents, and he was a resident of their household at the time of the accident. The parties stipulated to the following relevant policy provisions:\nNationwide Policy:\nPolicyholder - Named Insured: Walter Lee and Nancy Ikard Clark\nUM7UIM limits: $50,000 per person/ $100,000 per accident\nOther Insurance\nIf this policy and any other auto insurance policy apply to the same accident, the maximum amount payable under all applicable policies for all injuries to an insured caused by an uninsured motor vehicle or underinsured motor vehicle shall be the sum of the highest limit of liability for this coverage under each policy.\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.\nIntegon policy:\nPolicyholder - Named Insured: Nelson Clark\nUM/UIM limits: $100,000 per person/ $300,000 per accident\nOTHER INSURANCE\nIf this policy and any other auto insurance policy issued to you apply to the same accident, the maximum amount payable under all applicable policies for all injuries caused by an uninsured motor vehicle under all policies shall not exceed the highest applicable limit of liability under any one policy.\nIf this policy and any other auto insurance policy issued to you apply to the same accident, the maximum amount payable for injuries to you or a family member caused by an underinsured motor vehicle shall be the sum of the highest limit of liability for this coverage under each such policy.\nIn addition, if there is other applicable similar insurance, we will pay only our share of the loss. Our loss 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.\nState National policy:\nPolicyholder - Named Insured: Nelson Clark\nUM/UIM limits: $50,000 per person/ $100,000 per accident\nOTHER INSURANCE\nIf this policy and any other auto insurance policy apply to the same accident, the maximum amount payable under all applicable policies for all injuries to an insured caused by an uninsured motor vehicle or underinsured motor vehicle shall be the sum of the highest limit of liability for this coverage under each policy.\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.\nAll three policies define the term \u201cyou\u201d as:\nThroughout this policy, \u201cyou\u201d and \u201cyour\u201d refer to:\n1. The \u201cnamed insured\u201d shown in the Declarations; and\n2. The spouse if a resident of the same household.\nAfter reviewing the policies, the pleadings, the parties\u2019 motions, the parties\u2019 memoranda, and hearing the parties\u2019 arguments, Judge Carl Fox granted summary judgment on behalf of Defendants based on Defendants\u2019 contention that their policies should be considered primary and Plaintiff\u2019s policy should be considered excess. The trial court concluded \u201cas a matter of law that there is no genuine issue of any material fact in this case that the underinsured motorist coverage afforded... on those same claims is excess[.]\u201d\nII.Jurisdiction & Standard of Review\nOn appeal, Plaintiff asks this Court to reverse the trial court based upon this Court\u2019s holding in Bost. 126 N.C. App. at 52, 483 S.E.2d 458-59.\nThis Court has jurisdiction to review the matter pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2013). \u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). \u201c \u2018Under a de novo review, the court considers the matter anew and freely substitutes its own judgment\u2019 for that of the lower tribunal.\u201d State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P\u2019ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).\nIII.Analysis\nPlaintiff argues that the holding in Bost requires a pro rata distribution of the $50,000 credit supplied by the underinsured motorist Ikerd\u2019s insurer. Plaintiff argues that Bost requires pro rata distribution because (i) the three policies\u2019 \u201cother insurance\u201d sections are mutually repugnant and (ii) claimant Clark was a Class I insured under the three policies, which requires pro rata distribution under Bost. Defendants argue that the language used in the UIM policies controls and class designation is not relevant when multiple UIM excess clauses may be read together harmoniously. See Iodice v. Jones, 133 N.C. App. 76, 79 & n.3, 514 S.E.2d 291, 293 & n.3 (1999).\nFor purposes of clarity, we hold that courts resolving UIM credit/ liability apportionment disputes amongst multiple providers must make the following inquiry in deciding these cases. First the language used in the excess clause must be identical between the excess clauses of the respective UIM policies, or \u201cmutually repugnant.\u201d See Sitzman v. Gov\u2019t Employees Ins. Co., 182 N.C. App. 259, 262-64, 641 S.E.2d 838, 840-42 (2007) (noting that identical language is mutually repugnant, requiring that neither is given effect, and applying the rule to non-identical excess clauses). If the language is not identical, the inquiry ends, as the excess policies are not mutually repugnant, and the trial court may apply the facial policy language to determine distribution. Id.\nIf this first prong is satisfied and the policies are repugnant, the second inquiry is to determine whether the respective UIM carriers are in the same class; if so, the trial court must apportion liabilities and credits on a pro rata basis. Bost, 126 N.C. App. at 52, 483 S.E.2d at 458-59.\nOnly after considering the \u201cclass\u201d of the claimant do we reach the third step of the inquiry. If separate classes exist, a primary/excess distinction may be drawn despite identical language. Iodice, 133 N.C. App. at 79 & n.3, 514 S.E.2d at 294 & n.3. Such identical clauses may allow a finding of non-repugnancy after applying the policies\u2019 definitions, specifically relating to ownership identified in the policy. Id.\nBecause this issue was settled in Bost and we are bound to follow this holding, we must disagree with Defendants\u2019 contention that identical excess clauses as applied to claimants all situated within the same class may be read together \u201charmoniously.\u201d See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere 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). As such, we reverse the trial court, and remand to the trial court for a pro rata distribution of the $50,000 credit supplied by Ikerd\u2019s insurer. The three tests described above are more fully discussed hereinafter.\ni. Mutually Repugnant Excess Clauses\nThe first item in the inquiry is to determine whether or not the respective excess clauses are identical. Identical \u201cexcess clauses\u201d are typically deemed mutually repugnant and neither excess clause is given effect. Integon Nat\u2019l. Ins. Co. v. Phillips, 212 N.C. App. 623, 630, 712 S.E.2d 381, 386 (2011) (\u201cDue to the excess clauses being identically worded, it is impossible to determine which policy is primary, and thus the excess clauses must be deemed mutually repugnant, with neither clause being given effect.\u201d (quotation marks and citation omitted)); see also James E. Snyder, Jr., North Carolina Automobile Insurance Law \u00a7 33-5 (Supp. 2013). Where identical excess clauses exist, the policies are read as if the identical excess clauses were not present. Iodice at 78, 514 S.E.2d at 293 (\u201cWhere it is impossible to determine which policy provides primary coverage due to identical \u2018excess\u2019 clauses, \u2018the clauses are deemed mutually repugnant and neither .. . will be given effect.\u2019 \u201d (quoting N.C. Farm Bureau Mut. Ins. Co. v. Hilliard, 90 N.C. App. 507, 511, 369 S.E.2d 386, 388 (1988)) (alterations in original)); Onley v. Nationwide Mut. Ins. Co., 118 N.C. App. 686, 690, 456 S.E.2d 882, 884, disc. review denied, 341 N.C. 651, 462 S.E.2d 514 (1995).\nWhen mutually repugnant clauses exist, the multiple UIM carriers share both credits and liabilities pro rata, as sharing \u201cthe liability in proportion to the coverage but not the credit in a like manner is irrational.\u201d Onley, 118 N.C. App. at 691, 456 S.E.2d at 885; see also Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 165 N.C. App. 543, 600 S.E.2d 901, 2004 WL 1610050 at *3 (2004) (unpublished) (\u201c \u2018Where an insured is in the same class under two policies and the \u2018other insurance\u2019 clauses in the policies are mutually repugnant, the claims will be prorated.\u2019 \u201d (quoting Hlasnick v. Federated Mut. Ins. Co., 136 N.C. App. 320, 330, 524 S.E.2d 386, 393, aff\u2019d on other grounds inpart and disc, review improvidently allowed in part, 353 N.C. 240, 539 S.E.2d 274 (2000))).\nThe converse is also true when policies are not identical in form or effect, they are not mutually repugnant. Sitzman, 182 N.C. App. at 264, 641 S.E.2d at 842 (noting the differences between two policies\u2019 excess clauses in both form and effect); see also Hlasnick, 136 N.C. App. at 330, 524 S.E.2d at 393 (\u201c[T]here is no need to consider the class into which an insured falls or to prorate coverage where, as here, the \u2018other insurance\u2019 clauses are not mutually repugnant, but may be read together harmoniously.\u201d). In Sitzman, two UIM policies\u2019 excess clauses were at issue. The first policy was issued by Geico to the claimant in North Carolina and uses the standard North Carolina excess clause language used by both Plaintiff and Defendants\u2019 policies discussed above in Section I supra. 182 N.C. App. at 262, 641 S.E.2d at 841. The second policy was issued by Harleysville in Virginia to the claimant\u2019s parents. Id. at 261, 641 S.E.2d at 840. The policy was interpreted under Virginia law as it was issued in that state. Id. at 263, 641 S.E.2d at 842. The Harleysville policy also contained an excess clause that was distinct from the standard North Carolina excess clause:\n[T]he following priority of policies applies and any amount available for payment shall be credited against such policies in the following order of priority:\nFirst Priority[:] The policy applicable to the vehicle the \u201cinsured\u201d was \u201coccupying\u201d at the time of the accident.\nSecond Priority[:] The policy applicable to a vehicle not involved in the accident under which the \u201cinsured\u201d is a named insured.\nThird Priority[:] The policy applicable to a vehicle not involved in the accident under which the \u201cinsured\u201d is other than a named insured.\nId. at 263, 641 S.E.2d at 841-42 (alterations in original). This Court explicitly noted the differences between the wording of the Geico and Harleysville policy:\nUnlike the GEICO excess clause, the Harleysville policy does not differentiate between policies based upon ownership of the vehicle in which the insured was riding at the time of the accident. Rather, the Harleysville policy differentiates between the first priority on one hand, and the second and third priorities on the other, based upon whether the policy is applicable to (1) the vehicle involved in the accident or (2) a vehicle not involved in the accident. The Harleysville policy further differentiates between the second and third priorities depending upon whether the insured is a named insured or other than a named insured.\nThe Harleysville policy does not define the phrase \u201capplicable to [the or a] vehicle.\u201d GEICO argues the phrase \u201capplicable to [the or a] vehicle\u201d is synonymous with \u201ccovering [the or a] vehicle.\u201d Under that interpretation, the vehicle referred to would be the vehicle listed as an insured vehicle under the policy. The bicycle is not listed as an insured vehicle under either policy. Therefore, the GEICO policy would have second priority because it is \u201c[t]he policy [covering] a vehicle not involved in the accident [i.e., Plaintiff\u2019s 1987 Buick] under which [Plaintiff] is a named insured.\u201d GEICO further argues the Harleysville policy has third priority because it is \u201c[t]he policy [covering] a vehicle not involved in the accident [i.e., Plaintiffs parents\u2019 vehicles] under which [Plaintiff] is other than a named insured.\u201d Under this interpretation, the GEICO policy would have higher priority and would therefore be primary under the Harleysville excess clause. Accordingly, the GEICO policy would be primary under both the GEICO and Harleysville policies, and the excess clauses would not be mutually repugnant.\nSitzman, 182 N.C. App. at 264, 641 S.E.2d at 842 (emphasis added) (alterations in original). As such, the excess clauses under consideration were not identical and not mutually repugnant, necessitating no further inquiry.\nHowever, identical policy language is not axiomatically mutually repugnant if the excess clauses at issue do not have the same meaning as applied to the facts of the case. See Iodice, 133 N.C. App. at 78, 514 S.E.2d at 293 (agreeing with appellant that the \u201c \u2018other insurance\u2019 clauses in this case, although identically worded do not have identical meanings and are therefore not mutually repugnant\u201d). In Iodice, this Court held:\nBecause \u201cyou\u201d is expressly defined as the named insured and spouse, the Nationwide \u201cexcess\u201d clause reads: \u201c[A]ny insurance we provide with respect to a vehicle [Penney] do[es] 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 Penney. The GEICO \u201cexcess\u201d clause reads: \u201c[A]ny insurance we provide with respect to a vehicle [Iodice\u2019s mother] do[es] 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 Iodice\u2019s mother. Accordingly, Nationwide provides primary UIM coverage in this case.\nId. at 78-79, 514 S.E.2d at 293 (alterations in original).\nThus, where identically worded policy provisions existed but the actual application of the policies negated mutual repugnancy, this Court held that the \u201cexcess\u201d UIM policy was not entitled to a set-off credit. Id. In so holding, however, this Court reaffirmed the class distinction discussed in Bost and considered infra, stating that a \u201cClass II insured may be treated differently than a Class I insured.\u201d Id. at 79 n.3, 514 S.E.2d at 293 n.3. Iodice thus stands for the proposition that identical language in excess clauses may be read together harmoniously if a claimant is categorized under separate \u201cclasses.\u201d\nA subsequent case, Hlasnick, is instructive in prescribing and applying the required three questions in this area of the law. In Hlasnick, a husband and wife were injured in an automotive accident caused by a negligent driver. Id. at 321-22, 524 S.E.2d at 387-88. The husband was driving a Dodge pick-up truck owned by the car dealership where he worked, and was running a personal errand while his wife was present. Id. at 322, 524 S.E.2d at 388. The negligent driver was underinsured, the driver\u2019s policy carrier tendered its limits, and the husband and wife sought recovery under their UIM policies. Id. The husband\u2019s employer had UIM coverage, while both husband and wife each had personal insurance policies that carried UIM coverage. Id.\nThis Court held the policies were not mutually repugnant because the \u201cterm \u2018you\u2019 in the different policies refers to different individuals; and the \u2018other insurance\u2019 provisions in the policies are not identical,\u201d meaning the policies could thus be read together harmoniously. Id. at 330, 524 S.E.2d at 392-93 (emphasis added). This Court also noted the claimants fit within separate classes, but held that even had the claimants been within the same class under both UIM policies, the language of the respective excess clauses was not mutually repugnant. Id. at 330, 524 S.E.2d at 392 (\u201cBy contrast, plaintiffs here are second-class insureds under Federated Mutual\u2019s policy, but are first-class insureds under State Farm\u2019s policy[.]\u201d). This Court contrasted Hlasnick with Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 400 S.E.2d 44 (1991), where \u201cthere were two policies. The insureds were in the same class under both policies, the term \u2018you\u2019 in each policy referred to the same individual, and the policies contained identical \u2018other insurance\u2019 provisions.\u201d Hlasnick, 136 N.C. App. at 330, 524 S.E.2d at 392.\nHere, the language contained in the \u201cexcess clause\u201d is identical in all three policies. Id. at 330, 524 S.E.2d at 392-93; see also Phillips, 212 N.C. App. at 630, 712 S.E.2d at 386 (noting where identical language exists, a presumption of repugnancy exists). Thus, the first part of the inquiry is satisfied, however our work is not finished. As Iodice noted, identically-worded policies may be read together \u201charmoniously,\u201d but that reading is predicated on whether the claimant falls within different \u201cclasses\u201d between the respective policies. 133 N.C. App. at 79 n.3, 514 S.E.2d at 293 n.3; Hlasnick, 136 N.C. App. at 330, 524 S.E.2d at 393. Thus, whether we may reach the third portion of our inquiry (whether the identical excess clauses may be read harmoniously) depends on the classes of the UIM providers, as announced in Bost and affirmed in Iodice, Hlasnick, Harleysville, Sitzman, and Benton v. Hanford, 195 N.C. App. 88, 92, 671 S.E.2d 31, 34 (2009).\nii. Class Recognition under Bost\nThis Court in Bost noted a distinction with how liabilities and credits are apportioned according to the class of the \u201cpersons insured:\u201d\n[generally, the first class of \u201cpersons insured\u201d are the \u201cnamed insured and, while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise.\u201d All persons in the first class are treated the same for insurance purposes. When \u201cexcess\u201d clauses in several policies are identical, the clauses are deemed mutually repugnant and neither excess clause will be given effect, leaving the insured\u2019s claim to be pro rated between the separate policies according to their respective limits.\n126 N.C. App. at 52, 483 S.E.2d at 458-59 (internal citations omitted). Bost identified and categorized these \u201cclasses\u201d in the relevant statute. Id. at 52, 483 S.E.2d at 458; N.C. Gen. Stat. \u00a7 20-279.21 (2013) (\u201c \u2018[Persons insured\u2019 means the named insured and while resident of the same household, the spouse of any named insured and relatives of either, while in a motor vehicle or otherwise[.]\u201d). Despite efforts to overturn Bost, the class distinction drawn in Bost remains today. Defendant Appellant\u2019s New Brief, Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 359 N.C. 421, 611 S.E.2d 832 (2005) No. 444PA04, 2004 WL 3120959 at *23-24 (\u201cAccordingly, Bost was decided incorrectly and should be overruled. Because the Court of Appeals based its decision in the present case on Bost, the Court of Appeals decided the present case incorrectly as well, and its decision in the present case should be reversed.\u201d).\nDefendants point to decisions decided subsequent to Bost, but none of these cases overrule Bost and all involve either excess clauses that are not mutually repugnant or distinctions in classes of underinsured motorist policies. See Sitzman, 182 N.C. App. at 265, 267, 641 S.E.2d at 843, 844 (finding that the two UIM policies were not mutually repugnant due to different wording and Virginia\u2019s choice not to recognize North Carolina\u2019s class distinction (citing Dairyland Ins. Co. v. Sylva, 409 S.E.2d 127, 128 (Va. 1991)); Harleysville, 165 N.C. App. 543, 600 S.E.2d 901, 2004 WL 1610050 at *3 (\u201cWhile Nationwide points to two decisions by this Court subsequent to Bost as supporting its position, each of those cases recognizes that Bost controls when, as here, the injured party is a Class I insured under each of the policies at issue.\u201d); Hlasnick, 136 N.C. App. at 330, 524 S.E.2d at 392-93 (\u201c[Pjlaintiffs here are second-class insureds under Federated Mutual\u2019s policy, but are first-class insureds under State Farm\u2019s policy; the term \u2018you\u2019 in the different policies refers to different individuals; and the \u2018other insurance\u2019 provisions in the policies are not identical.\u201d); Iodice, 133 N.C. App. at 79 n.3, 514 S.E.2d at 293 n.3 (holding Bost was distinguishable because the plaintiff in Bost was \u201ca Class I insured under both policies\u201d and stating a \u201cClass II insured may be treated differently than a Class I insured\u201d).\nThe one case addressing this issue that does not mention the Class V Class II distinction is Benton, and the facts of that case include a Class I UIM provider and a Class II UIM provider, making the excess and primary distinction this Court drew appropriate. 195 N.C. App. at 97, 671 S.E.2d at.36. In Benton, the claimant was injured while a passenger-guest in a vehicle that struck a tree. Id. at 90, 671 S.E.2d at 32. Nationwide provided UIM coverage that applied to the vehicle and its occupants involved in the accident, a vehicle owned by the operator. Id. at 97, 671 S.E.2d at 36. The claimant also received UIM coverage as amember of his mother\u2019s household under a Progressive insurance policy. Id. As such, the claimant was a Class II insured under the Nationwide policy (as a passenger-guest) and a Class I insured under his mother\u2019s Progressive policy (as a resident-relative). Because the classes of the UIM policies were different, this Court could conduct the analysis laid forth in Iodice to find the Nationwide policy was \u201cprimary\u201d and the Progressive policy was \u201cexcess.\u201d Id.\nThe facts of Bost were also similar to the present case:\nCarrie Bost was not a named insured under Larry Bost\u2019s insurance policy with Farm Bureau. Both Farm Bureau and defendant Allstate insured Carrie Bost as a first class insured because she was a relative and resident of the households of both Larry and Cara Bost. Both policies have \u201cOther Insurance\u201d provisions which are identical, and therefore, the provisions nullify each other, leaving Farm Bureau and defendant Allstate to share the Ezzelle settlement on a pro rata basis.\n126 N.C. App. at 52, 483 S.E.2d at 459. Here, the claimant Clark was a Class I insured under all three UIM policies and the three policies all contained identical language. Clark also held two policies (the Integon policy and the State National Policy) as the named policyholder and was a relative resident of his parents\u2019 household, making him a Class I beneficiary of their Nationwide UIM policy. Under Bost, the credit paid by Ikerd\u2019s insurer must be distributed pro rata amongst Plaintiff and Defendants. Because the policies are (i) identical and (ii) claimant was a member of the same class within the excess clause of all three UIM policies, we cannot reach the third consideration of whether the identical language of the excess clause, as applied, may be read harmoniously amongst the excess clauses. We thus reverse the trial court and remand for a pro rata distribution of the credit.\nIV. Conclusion\nBecause (i) all three policies were mutually repugnant and (ii) the claimant was a Class I insured under all three policies, pro rata distribution of the $50,000 credit provided by Ikerd is required under Bost. For the foregoing reasons, the trial court\u2019s granting of summary judgment for Defendants is\nREVERSED AND REMANDED FOR ENTRY OF SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF.\nJudges ROBERT C. HUNTER and CALABRIA concur.\n. Collectively, Integon and State National will be referred to as \u201cDefendants.\u201d\n. The complaint was amended to reflect ownership of the insurance policy held by State National, rather than the originally named party, Direct General Insurance Company. State National is a subsidiary of Direct General Insurance Company.\n. The \u201cOther Insurance\u201d clause in the Integon policy contains the word \u201closs\u201d instead of \u201cshare\u201d in the second sentence of the clause. However the Integon policy defines \u201closs\u201d the same way both other policies define \u201cshare\u201d: \u201cthe proportion that our limit of liability bears to the total of all applicable limits.\u201d\n. If Nationwide is considered \u201cexcess,\u201d Nationwide pays the full amount of its $50,000 liability limit under the UIM coverage, Integon pays $66,666.67 and State National pays $33,333.33. Integon and State National both divided the $50,000 paid by Ikerd\u2019s insurer and received $25,000 each.\nA pro rata distribution would net Nationwide a credit of 25 percent of its liability limit, or $12,500. Nationwide would then be liable for $37,500, rather than the full $50,000 of its UIM policy. Integon would pay $75,000 and State National would pay $37,500 under a pro rata distribution.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "CranJUl Sumner & Hartzog, LLP, by George L. Simpson, IV, for plaintiff-appellant.", "Bennett & Guthrie, PLLC, by Rodney A. Guthrie, for defendant-appellee Integon National Insurance Company.", "Pinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers, for defendant-appellee State National Insurance Company." ], "corrections": "", "head_matter": "NATIONWIDE MUTUAL INSURANCE COMPANY, INC., Plaintiff v. INTEGON NATIONAL INSURANCE COMPANY and STATE NATIONAL INSURANCE COMPANY, Defendants\nNo. COA13-640\nFiled 21 January 2014\nInsurance \u2014 underinsured motorist\u2019s coverage \u2014 pro rata distribution among policy providers\nThe trial court erred in a declaratory judgment action arising out of an insurance coverage question by not applying a pro rata distribution of the credit paid by the underinsured motorist\u2019s insurance provider to all three underinsured motorist insurance (UIM) policy providers. Because the respective excess clauses were mutually repugnant and the claimant was a Class I insured under all three UIM policies, the trial court was required to allocate credits and liabilities amongst the three UIM policyholders on a pro rata basis under N.C. Farm Bureau v. Bost, 126 N.C. App. 42.\nAppeal by plaintiff from order entered 27 March 2013 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 23 October 2013.\nCranJUl Sumner & Hartzog, LLP, by George L. Simpson, IV, for plaintiff-appellant.\nBennett & Guthrie, PLLC, by Rodney A. Guthrie, for defendant-appellee Integon National Insurance Company.\nPinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers, for defendant-appellee State National Insurance Company." }, "file_name": "0044-01", "first_page_order": 54, "last_page_order": 66 }