{ "id": 8547627, "name": "RELIANCE INSURANCE COMPANY v. JAMES G. WALKER, KENNETH LEWIS, and AETNA INSURANCE COMPANY", "name_abbreviation": "Reliance Insurance v. Walker", "decision_date": "1977-04-20", "docket_number": "No. 767SC784", "first_page": "15", "last_page": "23", "citations": [ { "type": "official", "cite": "33 N.C. App. 15" } ], "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": "175 S.E. 2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 27", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547676 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0027-01" ] }, { "cite": "192 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565633, 8565602, 8565539, 8565699, 8565561 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0425-04", "/nc/282/0425-03", "/nc/282/0425-01", "/nc/282/0425-05", "/nc/282/0425-02" ] }, { "cite": "192 S.E. 2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549827 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "198-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0194-01" ] }, { "cite": "9 N.E. 2d 552", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1937, "opinion_index": 0 }, { "cite": "298 Mass. 96", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 887918 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/mass/298/0096-01" ] }, { "cite": "387 F. Supp. 1202", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3344996 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f-supp/387/1202-01" ] }, { "cite": "139 S.E. 2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "263 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570568 ], "year": 1965, "pin_cites": [ { "page": "448-49" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0445-01" ] }, { "cite": "116 F. Supp. 130", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4237521 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/f-supp/116/0130-01" ] }, { "cite": "123 F. 2d 326", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1093140 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/f2d/123/0326-01" ] } ], "analysis": { "cardinality": 706, "char_count": 16780, "ocr_confidence": 0.647, "pagerank": { "raw": 1.0108934383496478e-06, "percentile": 0.9830611746090216 }, "sha256": "206b34597860b6b095f6c70da920725b8122e0186eafecd090ec4c4f62185e7c", "simhash": "1:dbfe33d8ae1e3336", "word_count": 2804 }, "last_updated": "2023-07-14T18:09:28.190456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Maktin concur." ], "parties": [ "RELIANCE INSURANCE COMPANY v. JAMES G. WALKER, KENNETH LEWIS, and AETNA INSURANCE COMPANY" ], "opinions": [ { "text": "MORRIS, Judge.\nAppeal op Dependant Kenneth Lewis\nAfter this case was docketed in the Court of Appeals but prior to oral arguments, Aetna moved to dismiss the appeal as to defendant Lewis. The record reveals that Lewis, along with plaintiff Reliance and defendant Walker, took exception to the judgment of 7 June and gave notice of appeal in open court. However, Lewis has failed to file a brief or to carry forward his exception by any assignment of error. Rule 10(a) of the North Carolina Rules of Appellate Procedure provides that \u201c. . . the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal . . . and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. . . .\u201d Rule 14(d)(2) of the Rules of Appellate Procedure provides that \u201c[i]f an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court\u2019s own initiative. . . .\u201d For Lewis\u2019 failure to comply with the Rules of Appellate Procedure, Aetna\u2019s motion is granted, and Lewis\u2019 appeal is dismissed.\nAppeal of Defendant James Q. Walker\nDefendant Walker has excepted to and assigned as error those portions of Judge Webb\u2019s judgment which hold that Aetna\u2019s homeowner\u2019s policy does not provide coverage for Walker\u2019s injuries. Aetna has moved to dismiss Walker\u2019s appeal, contending that he is not a real party in interest in the litigation and therefore may not appeal from the judgment. We agree.\nG.S. 1A-1, Rule 17 (a) of the North Carolina Rules of Civil Procedure provides that \u201c[e]very claim shall be prosecuted in the name of the real party in interest ...\u201d Although Rule 17 by its terms applies only to parties plaintiff, the rule is applicable to parties defendant as well. 3A Moore\u2019s Federal Practice, \u00a7 17.07, pp. 226-27. See also International Brotherhood of Teamsters v. Keystone Freight Lines, Inc., 123 F. 2d 326 (10th Cir. 1941); Leppard v. Jordan\u2019s Truck Line, 116 F. Supp. 130 (W.D.N.C. 1953). A real party in interest is \u201c. . . a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation.\u201d Parnell v. Insurance Co., 263 N.C. 445, 448-49, 139 S.E. 2d 723, 726 (1965). (Emphasis supplied.) The real party in interest is the party who by substantive law has the legal right to enforce the claim in question. White Hall Building Corp. v. Profexray Division of Litton, Industries, Inc., 387 F. Supp. 1202 (E.D. Penn. 1974).\nPlaintiff, in its prayer for relief, asked the court to adjudge \u201c[wjhether Kenneth Lewis or James G. Walker are (sic) entitled to any coverage or protection\u201d under either the automobile liability or homeowner\u2019s policy. The clear purpose of the action is to determine which insurance company, if any, would be liable to indemnify Lewis and not to determine any possible liability to Walker. Since Walker has yet to establish any liability of Lewis for the shooting, this declaratory judgment action involves only Lewis, his automobile liability carrier, and his homeowner\u2019s liability carrier. At this point, Walker has no interest in the subject matter of the action nor does he have any substantive legal rights to enforce the court\u2019s determination of liability of either carrier. See Merchants Mutual Casualty Co. v. Leone, 298 Mass. 96, 9 N.E. 2d 552 (1937). Accordingly, he is not a real party in interest to this suit, and Aetna\u2019s motion to dismiss Walker\u2019s appeal is granted.\nAppeal of Plaintiff Reliance Insurance Company\nAfter receiving the evidence, Judge Webb incorporated into his judgment the following:\n\u201cFindings of Fact:\n(1) Kenneth Lewis was on October 28, 1974, the owner of a 1963 Dodge pickup truck.\n(2) On that date there was in effect a policy of automobile liability insurance issued by the plaintiff, Reliance Insurance Company, insuring Kenneth Lewis against those liabilities described in the policy; and said automobile liability insurance policy provided in pertinent part as follows:\nPart I \u2014 Liability\nBodily Injury Liability Coverage; Property Damage Liability Coverage to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:\nA. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called \u2018bodily injury,\u2019 sustained by any person;\narising out of the ownership, maintenance or use of the owned automobile. . . .\n$\nDefinitions. Under Part 1:\n\u2018Use\u2019 of an automobile includes the loading and unloading thereof.\n(3)On October 28, 1974, there was in effect a policy of insurance, commonly referred to as a \u2018homeowners policy,\u2019 issued by the defendant Aetna Insurance Company insuring Kenneth Lewis against those liabilities described in and not excluded by the said policy; and said policy provided in pertinent part as follows:\nThis policy does not apply:\n1. Under coverage E \u2014 personal liability and coverage F \u2014 medical payments to others:\na. To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:\n(2) Any motor vehicle. . . .\n(4) The pickup truck owned by Kenneth Lewis was equipped with a gun rack permanently mounted inside the rear window of the truck cab for the purpose of transporting firearms.\n(5) Early in the morning of October 28, 1974, Kenneth Lewis had placed his rifle in the truck gun rack for the purpose of taking it hunting. After hunting for several hours in the morning he replaced the rifle in the gun rack and drove to his home to pick up some trash to take to a nearby depository. James Walker assisted Kenneth Lewis in loading the trash onto the pickup truck. While the trash was being loaded, Lewis\u2019 rifle remained in the gun rack because Lewis and Walker intended to go hunting again after the trash was dumped. Lewis and Walker had hunted together in the past and on such occasions both had transported their rifles in the truck gun rack.\n(6) After the trash was loaded onto the pickup truck, James Walker entered the passenger side of the cab and Kenneth Lewis placed his three-year-old son in the driver\u2019s side.\n(7) James Walker, desiring to ride next to the window, then stepped out of the truck briefly to allow another passenger to enter. Kenneth Lewis then sat down in the driver\u2019s seat with his keys in his hand and was in the process of inserting them into the ignition switch when the rifle mounted in the gun rack discharged and injured Walker who was then standing beside the cab and holding the door open for the other passenger to enter.\u201d\nAlthough plaintiff excepted to certain findings of fact and entered assignments of error thereon, he failed to argue or cite any authority for these assignments in his brief. These assignments of error are therefore deemed abandoned. North Carolina Rules of Appellate Procedure, Rule 28(b) (3). Moreover, plaintiff concedes that there is evidence in the record to support the findings of fact in the judgment. Plaintiff contends, however, that the findings do not support the conclusions of law. More specifically, plaintiff excepts to the court\u2019s conclusion that Walker\u2019s injury \u201carose out of the \u2018operation and use\u2019 \u201d of Lewis\u2019 truck on the ground that there was no finding of a causal connection between the discharge of the rifle and the operation or use of the truck.\nIn Casualty Co. v. Insurance Co., 16 N.C. App. 194, 192 S.E. 2d 113, cert. den., 282 N.C. 425, 192 S.E. 2d 840 (1972), this Court said:\n\u201c . . . The words \u2018arising out of\u2019 are not words of narrow and specific limitation but are broad, general, and comprehensive terms effecting broad coverage. They are intended to, and do, afford protection to the insured against liability imposed upon him for all damages caused by acts done in connection with or arising out of such use. There are words of much broader significance than \u2018caused by\u2019. They are ordinarily understood to mean \u2018originating from\u2019, \u2018having its origin in,\u2019 \u2018growing out of,\u2019 or \u2018flowing from,\u2019 or in short, \u2018incident to,\u201d or \u2018having connection with\u2019 the use of the automobile. . . .\nThe parties do not, however, contemplate a general liability insurance contract. There must be a causal connection between the use and the injury. This causal connection may be shown to be an injury which is the natural and reasonable incident or consequence of the use, though not foreseen or expected, but the injury cannot be said to arise out of the use of an automobile if it was directly caused by some independent act or intervening cause wholly disassociated from, independent of, and remote from the use of the automobile. (Citation omitted.)\u201d 16 N.C. App. at 198-99, 192 S.E. 2d at 118.\nSee also 7 Am. Jur. 2d, Automobile Insurance, \u00a7 82, p. 387.\nIn the present case, insured\u2019s truck contained a gun rack which insured installed at the time the truck was purchased. The gun rack was permanently mounted to the truck\u2019s cab and had frequently been used by insured to transport rifles on hunting trips. Clearly, the transportation of guns was one of the uses to which the truck had been put. Thus, the shooting was a \u201cnatural and reasonable incident, or consequence of the use\u201d of the truck and was not the result of something \u201cwholly disassociated from, independent of, and remote from\u201d the truck\u2019s normal use.\nMoreover, we do not find Raines v. Insurance Co., 9 N.C. App. 27, 175 S.E. 2d 299 (1970), cited by plaintiff, as controlling authority in this case. In Raines, plaintiff\u2019s intestate was shot and killed while he sat in the front seat of a car belonging to defendant\u2019s insured. At the time of the shooting, the car was stopped, the engine was off and one door was open. Foster Williams sat in the driver\u2019s seat and was playing with a pistol. There was a sudden movement and the gun discharged, killing Raines. Defendant\u2019s policy covering the automobile provided for payment for damages \u201ccaused by accident and arising out of the ownership, maintenance or use of the automobile.\u201d The sole issue of the case was whether Raines\u2019 death was caused by an accident arising out of the use of the automobile in which he sat. The trial judge, sitting without a jury, held that it was not, and this Court affirmed, stating that \u201c . . . [n]o causal connection between the discharge of the pistol and the \u2018ownership, maintenance or use\u2019 of the parked automobile was shown, and this is required to afford recovery under the policy.\u201d 9 N.C. App. at 30, 175 S.E. 2d at 301. There was nothing in Raines to indicate that the car was or ever had been used for transportation of guns. Although the shooting took place inside the parked car, the accident was not so related to the car as to \u201carise out of\u201d its use. Thus, the shooting in Raines, unlike that in the present case, was the result of a \u201ccause wholly disassociated\u201d from the use of the vehicle.\nWe have examined the other authorities cited by plaintiff in its brief and likewise find them to be inappropriate in the case sub judice. Suffice it to say that those cases do not involve a permanently mounted fixture in the vehicle found by the trial court to have been installed \u201cfor the purpose of transporting firearms.\u201d\nThe better practice would have been to include a specific finding in the judgment as to the existence of a causal connection between the shooting and the use of the truck. However, we have reviewed the judgment\u2019s conclusions of law in light of the evidence presented and hold that they have sufficient support. Accordingly, plaintiff\u2019s assignments are overruled.\nIt should be noted that we do not, by this decision, attempt to determine defendant Walker\u2019s rights, if any, against Lewis or against Aetna. Nor are we adjudicating Aetna\u2019s liability, if any, on the homeowner\u2019s policy. Since Walker lacked standing to appeal and Reliance did not attack the judgment\u2019s exoneration of Aetna, these issues simply are not before us . at the present time.\nThe judgment is affirmed.\nJudges Vaughn and Maktin concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Battle, Winslow, Scott and Wiley, P.A., by J. B. Scott, for plaintiff appellant.", "Knox and Kornegay, by Howard A. Knox, Jr., for defendant Walker, appellant.", "Young, Moore, Henderson and Alvis, by R. Michael Strickland, for defendant Aetna Insurance Company, appellee." ], "corrections": "", "head_matter": "RELIANCE INSURANCE COMPANY v. JAMES G. WALKER, KENNETH LEWIS, and AETNA INSURANCE COMPANY\nNo. 767SC784\n(Filed 20 April 1977)\n1. Appeal and Error \u00a7 44.1\u2014 failure to file brief \u2014 failure to bring exception forward\nThe appeal of one defendant is dismissed for failure of such defendant to file a brief or to bring forward any exception by an assignment of error. Rules 10(a) and 14(d)(2) of the Rules of Appellate Procedure.\n2. Appeal and Error \u00a7 7\u2014 right to appeal \u2014 party not aggrieved\nA person injured when a gun in an insured\u2019s truck discharged was not a real party in interest and entitled to appeal a declaratory judgment determining whether the insured\u2019s automobile liability policy and his homeowner\u2019s policy provided coverage for insured\u2019s liability for such injury where the injured person has not yet established insured\u2019s liability for the injury.\n3. Insurance \u00a7 90\u2014 automobile liability insurance \u2014 discharge of gun inside vehicle \u2014 use of vehicle\nAn injury to a person standing outside the insured\u2019s truck when a rifle on a permanently mounted gun rack inside the truck cab discharged arose out of the use of the truck within the meaning of an automobile liability policy since the transportation of guns was one of the uses to which the truck had been put, and the shooting was a natural and reasonable incident or consequence of the use of the truck and was not the result of something wholly disassociated from, independent of and remote from the truck\u2019s normal use.\nAppeal by plaintiff and defendant Walker from Webb, Judge. Judgment entered out of session on 7 June 1976 in Superior Court, Edgecombe County. Heard in the Court of Appeals 9 March 1977.\nThis is a declaratory judgment action filed by plaintiff Reliance Insurance Company to determine liability for injuries sustained by defendant Walker while on the property of defendant Lewis. At the times herein involved, Lewis was insured by an automobile liability policy issued by plaintiff and by a homeowner\u2019s policy issued by Aetna. Plaintiff\u2019s policy provided in pertinent part:\n\u201cPart I \u2014 Liability\nBodily Injury Liability Coverage; Property Damage Liability Coverage. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:\nA. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called \u2018bodily injury,\u2019 sustained by any person;\narising out of the ownership, maintenance or use of the owned automobile . . .\nDefinitions. Under Part 1:\n\u2018use\u2019 of an automobile includes the loading and unloading thereof; . .\nAetna\u2019s homeowner\u2019s policy provided in pertinent part:\n\u201cThis policy does not apply:\n1. Under Coverage E \u2014 Personal Liability and Coverage F \u2014 Medical Payments to Others:\na. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:\n(2) any motor vehicle . .\nOn 28 October 1974, Lewis went hunting, driving his 1963 Dodge pickup which contained a gun rack permanently mounted inside the rear window of the truck\u2019s cab. After finishing his hunting, Lewis placed his loaded rifle in the gun rack, returned home, and parked the truck in his driveway. Walker assisted Lewis in loading trash in the rear of the truck for delivery to a nearby depository. The loaded gun remained in the truck\u2019s gun rack because Lewis and Walker intended to go hunting again after disposing of the trash.\nAfter the trash was loaded onto the truck, Walker entered the cab on the passenger side and Lewis placed his three-year-old son on the seat in the driver\u2019s side. Walker stepped out of the truck briefly to allow another passenger to get in the cab. Lewis sat down in the driver\u2019s seat and, as he began to insert the keys into the ignition, his rifle, still in the gun rack, discharged and injured Walker as he stood beside the cab.\nWalker filed an action against Lewis in Nash County Superior Court alleging damages of $150,000. Plaintiff subsequently filed the present action seeking a declaratory judgment as to whether Lewis or Walker is entitled to any coverage or protection under plaintiff\u2019s automobile policy and/or Aetna\u2019s homeowner\u2019s policy. On 7 June 1976, Webb, Judge, entered a judgment out of session which held that plaintiff\u2019s policy provided coverage but that Aetna\u2019s policy did not. Plaintiff and Walker appeal from that judgment.\nBattle, Winslow, Scott and Wiley, P.A., by J. B. Scott, for plaintiff appellant.\nKnox and Kornegay, by Howard A. Knox, Jr., for defendant Walker, appellant.\nYoung, Moore, Henderson and Alvis, by R. Michael Strickland, for defendant Aetna Insurance Company, appellee." }, "file_name": "0015-01", "first_page_order": 43, "last_page_order": 51 }