{ "id": 8547122, "name": "TRUDY MAE CAISON, By Her Guardian ad Litem, CAROLYN H. CAISON v. NATIONWIDE INSURANCE COMPANY; DONALD W. CAISON v. NATIONWIDE INSURANCE COMPANY", "name_abbreviation": "Caison ex rel. Caison v. Nationwide Insurance", "decision_date": "1980-02-05", "docket_number": "No. 795DC305; No. 795DC329", "first_page": "30", "last_page": "34", "citations": [ { "type": "official", "cite": "45 N.C. App. 30" } ], "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": "243 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": -1 }, { "cite": "36 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552010 ], "year": 1978, "opinion_index": -1, "case_paths": [ "/nc-app/36/0173-01" ] }, { "cite": "221 S.E. 2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "28 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549271 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0365-01" ] }, { "cite": "126 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567993 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0381-01" ] }, { "cite": "244 S.E. 2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550879 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0018-01" ] }, { "cite": "219 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569639 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0447-01" ] }, { "cite": "175 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "motion for nonsuit in civil trial treated as one for a directed verdict" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548775 ], "year": 1970, "pin_cites": [ { "parenthetical": "motion for nonsuit in civil trial treated as one for a directed verdict" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0167-01" ] }, { "cite": "92 S.Ct. 1204", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "pin_cites": [ { "parenthetical": "motion for involuntary dismissal under Rule 41(b) in jury case properly treated as one for a directed verdict" } ], "opinion_index": 0 }, { "cite": "31 L.Ed. 2d 252", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "pin_cites": [ { "parenthetical": "motion for involuntary dismissal under Rule 41(b) in jury case properly treated as one for a directed verdict" } ], "opinion_index": 0 }, { "cite": "405 U.S. 977", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11752800, 11752569, 11752514, 11752387, 11752258, 11752454, 11752871, 11752616, 11752948, 11752311, 11752728, 11752665 ], "year": 1972, "pin_cites": [ { "parenthetical": "motion for involuntary dismissal under Rule 41(b) in jury case properly treated as one for a directed verdict" } ], "opinion_index": 0, "case_paths": [ "/us/405/0977-10", "/us/405/0977-06", "/us/405/0977-05", "/us/405/0977-03", "/us/405/0977-01", "/us/405/0977-04", "/us/405/0977-11", "/us/405/0977-07", "/us/405/0977-12", "/us/405/0977-02", "/us/405/0977-09", "/us/405/0977-08" ] }, { "cite": "183 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567842 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0361-01" ] }, { "cite": "243 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552010 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0173-01" ] } ], "analysis": { "cardinality": 477, "char_count": 9393, "ocr_confidence": 0.814, "pagerank": { "raw": 1.059989733099374e-07, "percentile": 0.5567285969181988 }, "sha256": "9718f189d55ca43dc32ea5da2645de6d4cc14a30e9b051a33210a85ddcf4dd60", "simhash": "1:2567443a37fd0b8e", "word_count": 1604 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin (Robert M.) concur." ], "parties": [ "TRUDY MAE CAISON, By Her Guardian ad Litem, CAROLYN H. CAISON v. NATIONWIDE INSURANCE COMPANY DONALD W. CAISON v. NATIONWIDE INSURANCE COMPANY" ], "opinions": [ { "text": "WELLS, Judge.\nWe treat the trial court\u2019s granting of plaintiff\u2019s motion for summary judgment, after all of the evidence was presented at trial in the Trudy Mae Caison case, which recited that the motion was also considered one for a directed verdict, as a reversal by the trial court of the decision it had just rendered to deny plaintiff\u2019s motion for a directed verdict. Cf., Creasman v. Savings & Loan Ass\u2019n., 279 N.C. 361, 183 S.E. 2d 115 (1971), cert. denied, 405 U.S. 977, 31 L.Ed. 2d 252, 92 S.Ct. 1204 (1972) (motion for involuntary dismissal under Rule 41(b) in jury case properly treated as one for a directed verdict); Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970) (motion for nonsuit in civil trial treated as one for a directed verdict). The criteria for determining whether the trial court properly granted plaintiff\u2019s motion for a directed verdict in the Trudy Mae Caison case and plaintiff\u2019s motion for summary judgment in the Donald W. Caison case are the same: The court\u2019s granting of both motions may be sustained only if the evidence before the court failed to show that a material issue of fact existed for the trier of fact to resolve. See, Dendy v. Watkins, 288 N.C. 447, 219 S.E. 2d 214 (1975); Insurance Co. v. Bank, 36 N.C. App. 18, 244 S.E. 2d 264 (1978).\nThere is no dispute here that Babson, the truck\u2019s owner, gave Cliff, his employee, permission on 5 April 1974 to drive the truck from work to Cliff\u2019s home and back to work the next morning. The accident occurred that night in Wilmington, North Carolina, a distance of approximately thirty miles from Cliff\u2019s home. The evidence is conflicting, however, as to whether Babson gave Cliff permission to use the truck for any purpose other than to drive between home and work, including the trip to Wilmington to pick up a television set for Cliff. Babson testified at trial and stated in his deposition that he told Cliff his permission to use the truck was limited to the trip between home and work. Accordingly, unless we were to hold that, at the time of the accident, the limited permission given Cliff by Babson to use the truck only for trips between work and home constituted \u201cpermission\u201d, within the meaning of the omnibus clause, for any use made of the vehicle by Cliff, the judgments for the plaintiffs may not stand.\nIn Caison v. Insurance Co., 36 N.C. App. 173, 243 S.E. 2d 429 (1978) we held that the provisions of the Motor Vehicle Safety-Responsibility Act, G.S. 20-279.1, et seq., which require coverage of all persons having \u201clawful possession\u201d of the insured vehicle, do not apply to coverage obtained by the insured in excess of the statutory minimum. G.S. 20-279.21(g). We stated in Caison that coverage with respect to such excess should be determined under the terms and conditions of the policy. It has been stated that this interpretation of the law encourages insurers to offer such additional insurance by enabling them to restrict the class of persons covered. See, Comment, Survey of Developments in North Carolina Law, 1978, 57 N.C.L. REV. 827, 872, 873 (1979).\nThe policy in question here covered use of the vehicle by any person, \u201cprovided the actual use of the automobile is by the Named Insured or such spouse or with the permission of either.\u201d The meaning of this phrase was before us previously in Caison, supra. The trial court has overlooked the significance of that opinion. It is clear that, as stated by Judge Mitchell, the terms \u201clawful possession\u201d and \u201cpermission\u201d are not synonymous in their meaning or legal effect. We concluded in Caison, 36 N.C. App. at 178, 243 S.E. 2d at 432:\nWe hold that the entry of summary judgment for the plaintiff by the trial court was error and must be reversed and the cause remanded in order that the contested issue of whether the operator had the permission of the insured or his spouse for the actual use of the insured vehicle may be resolved.\nAs this is the second time this litigation has been before us and there must be yet another trial, we emphasize for clarity that, under the terms of the omnibus clause, the question to be determined is not only whether the driver had initial permission to use the vehicle, but whether he had permission to use it for the actual use to which he put it at the time of the accident. Of course, we recognize that factual circumstances will always control. For instance, if the permission granted is general in nature, then specific trip permission would not have to be shown. To invoke coverage where permission is at issue, the fact to be found is whether the use in question falls within the scope of the express or implied permission granted. This is what we mean by \u201cactual use\u201d with \u201cpermission.\u201d\nPlaintiff urges us to adopt the so-called liberal rule on permission. See, Hawley v. Insurance Co., 257 N.C. 381, 126 S.E. 2d 161 (1962); Packer v. Insurance Co., 28 N.C. App. 365, 221 S.E. 2d 707 (1976). This is not our prerogative. As we noted in Packer, the General Assembly adopted the \u201cliberal\u201d rule as to the statutory coverage. However, from the enactment of G.S. 20-279.21(g) it is equally clear that the General Assembly did not intend to extend the \u201cliberal\u201d rule to coverage in excess of or additional to the required statutory coverage. For us to adopt plaintiff\u2019s position, we would have to ignore the distinction between G.S. 20-279.21(b)(2) and G.S. 20-279.21(g). Again, that question was settled in Caison, supra. The distinction is there and we are bound by it.\nThere is conflicting evidence as to whether Babson restricted the permission given Cliff so as to exclude the trip to Wilmington. It is for the jury to determine whether, at the time of the accident, Cliff\u2019s actual use of the truck occurred within the scope of express or implied permission given by Babson.\nIn Trudy Mae Caison v. Nationwide Insurance Company,\nNew trial;\nIn Donald W. Caison v. Nationwide Insurance Company,\nReversed.\nJudges Hedrick and Martin (Robert M.) concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Addison Hewlett, Jr., for the plaintiff appellees.", "Smith & Kendrick, by Vaiden P. Kendrick, and Robert Gardner, for the defendant appellant." ], "corrections": "", "head_matter": "TRUDY MAE CAISON, By Her Guardian ad Litem, CAROLYN H. CAISON v. NATIONWIDE INSURANCE COMPANY DONALD W. CAISON v. NATIONWIDE INSURANCE COMPANY\nNo. 795DC305\nNo. 795DC329\n(Filed 5 February 1980)\nInsurance \u00a7 78.2\u2014 automobile liability insurance \u2014 coverage exceeding mandatory coverage \u2014 proof of permission of vehicle owner\nIn an action to recover under an automobile liability policy for damages in excess of the statutory minimum liability coverage wherein the policy covered use of the insured vehicle \u201cby the Named Insured or such spouse or with the permission of either,\u201d the evidence presented a jury question as to whether the driver of the insured vehicle had permission to use it for the actual use to which he put it at the time of the accident where the evidence showed that the vehicle owner gave the driver permission to drive the vehicle from work to his home and back to work the next morning and that the accident occurred that night in a city approximately 30 miles from the driver\u2019s home, but the evidence was conflicting as to whether the owner restricted the permission given the driver so as to exclude the trip to the city where the accident occurred.\nAPPEALS by defendant from Barefoot, Judge. Judgments entered 9 November 1978 and 19 December 1978 in District Court, NEW HANOVER County. Heard in the Court of Appeals 15 November 1979. (Appeals consolidated for purpose of hearing and determination.)\nThe facts of Trudy Mae Caison, by her Guardian ad Litem, Carolyn H. Caison v. Nationwide Insurance Company (the Trudy Mae Caison case) were fully presented by Judge Mitchell when this case was previously before us. Caison v. Insurance Co., 36 N.C. App. 173, 243 S.E. 2d 429 (1978). We reversed the trial court\u2019s granting of summary judgment for the plaintiff and remanded the cause for trial on the issue of whether Cliff had the vehicle owner\u2019s permission to take the vehicle for the actual use in which it was engaged at the time of the accident. On remand, the trial court denied plaintiff\u2019s motion for a directed verdict after plaintiff had presented all of her evidence and again at the close of defendant\u2019s evidence. However, the record discloses that after denial of her second motion for a directed verdict, plaintiff moved for summary judgment. This motion was granted by the court, which recited in the judgment that plaintiff\u2019s motion for summary judgment was, \u201calso considered as a motion for a directed verdict.\u201d Defendant appeals from this judgment.\nThe case of Donald W. Caison v. Nationwide Insurance Company involves the same accident out of which the above suit arose. In this suit the father of Trudy Mae Caison is suing the defendant to recover under a judgment he received against Larry Bryant Cliff in the amount of $2,284.55 for medical expenses he incurred in Trudy Mae\u2019s behalf. The trial court granted plaintiff\u2019s motion for summary judgment based on the pleadings, stipulations, and pre-trial order in the record of the Trudy Mae Caison case. Defendant appeals from this judgment as well. Since both cases present the identical quesiton concerning whether Cliff had the \u201cpermission\u201d of the vehicle\u2019s owner under the omnibus clause of the insurance policy at the time of the accident, we decide both of these cases in this opinion.\nAddison Hewlett, Jr., for the plaintiff appellees.\nSmith & Kendrick, by Vaiden P. Kendrick, and Robert Gardner, for the defendant appellant." }, "file_name": "0030-01", "first_page_order": 58, "last_page_order": 62 }