{
  "id": 8526726,
  "name": "NATIONWIDE MUTUAL INSURANCE COMPANY v. JUNIOR REX TAYLOR; SHARON LAJOY LITTLE, Individually; SHARON LAJOY LITTLE, Administratrix of the Estate of Divette Lajoy Lineberger, LINDA MISHER McCLEAVE, Individually; and LINDA MISHER McCLEAVE, Administratrix of the Estate of Melvin Lee McCleave",
  "name_abbreviation": "Nationwide Mutual Insurance v. Taylor",
  "decision_date": "1981-12-01",
  "docket_number": "No. 8125SC163",
  "first_page": "76",
  "last_page": "80",
  "citations": [
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      "cite": "55 N.C. App. 76"
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "category": "reporters:state_regional",
      "reporter": "So. 2d",
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        1900882
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      "year": 1964,
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      "cite": "243 S.E. 2d 894",
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      "cite": "295 N.C. 39",
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      "reporter": "N.C.",
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      "year": 1975,
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          "page": "196"
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      "cite": "288 N.C. 484",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
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      "reporter": "S.E.2d",
      "year": 1981,
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    {
      "cite": "51 N.C. App. 654",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1981,
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  "last_updated": "2023-07-14T17:04:47.759339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Hedrick and Hill concur."
    ],
    "parties": [
      "NATIONWIDE MUTUAL INSURANCE COMPANY v. JUNIOR REX TAYLOR; SHARON LAJOY LITTLE, Individually; SHARON LAJOY LITTLE, Administratrix of the Estate of Divette Lajoy Lineberger, LINDA MISHER McCLEAVE, Individually; and LINDA MISHER McCLEAVE, Administratrix of the Estate of Melvin Lee McCleave"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nThe sole question is whether the trial court correctly concluded that the 1971 Chevrolet Monte Carlo owned by Linda Me-Cleave and involved in a collision while being operated by her husband, Melvin McCleave, was a \u201ctemporary substitute automobile\u201d as defined in a policy of liability insurance issued by plaintiff to Melvin McCleave, so as to afford excess coverage of the collision under that policy. We hold that it did.\nPlaintiff entered a contract of automobile liability insurance with Melvin McCleave which covered a 1963 Ford van and a 1970 Chevrolet Malibu. The policy afforded coverage to Melvin Mc-Cleave as \u201cnamed insured\u201d while he was driving an \u201cowned automobile.\u201d The policy definition of \u201cowned automobile\u201d included the vehicles described in the policy and a \u201ctemporary substitute automobile,\u201d defined as \u201cany automobile . . ., not owned by the Named Insured, while temporarily used with the permission of the owner as a substitute for the owned automobile . . . when withdrawn from normal use because of breakdown, repair, servicing, loss or destruction.\u201d The policy contained the following provision in its liability coverage section: \u201cThe following are Insureds under [the liability section]: (a) with respect to the owned automobile, (1) the Named Insured and any resident of the same household . . . .\u201d The definition of \u201cnamed insured\u201d was \u201cthe individual named in the declarations and also includes his spouse, if a resident of the same household.\u201d\nOn 14 June 1977, while the policy was in effect, Melvin Mc-Cleave was killed in a collision which occurred while he was driving his wife\u2019s 1971 Chevrolet Monte Carlo. One passenger in the Monte Carlo was killed, and another was seriously injured. Suits brought by and on behalf of the passengers against Linda Mc-Cleave individually and as administratrix of her husband\u2019s estate were reduced to judgment. The limits of Linda McCleave\u2019s automobile liability insurance policy were paid but did not satisfy the judgments. Plaintiff sought determination whether Melvin McCleave\u2019s policy afforded excess coverage.\nThe court found as a fact that on the night of the accident Melvin McCleave\u2019s 1970 Chevrolet Malibu \u201chad been withdrawn from normal use because of its breakdown and need of repairs and that because of that condition of the 1970 Chevrolet Malibu Melvin McCleave was driving the 1971 Chevrolet Monte Carlo owned by his wife and with her permission.\u201d The evidence supports this finding, and it is therefore conclusive on appeal. See, e.g., Insurance Co. v. Allison, 51 N.C. App. 654, 277 S.E. 2d 473 (1981). The finding establishes that the requirements of the definition of \u201ctemporary substitute automobile\u201d that the vehicle (1) was used as a substitute for the owned automobile when the owned automobile was withdrawn from normal use because of breakdown or need of repair, and (2) was used with the permission of its owner, have been satisfied. On the basis of this finding the court concluded as a matter of law that the 1971 Chevrolet Monte Carlo was at the time of the collision a \u201ctemporary substitute automobile\u201d within the meaning of that phrase as used in the policy.\nPlaintiff argues that Linda McCleave\u2019s vehicle could not constitute a \u201ctemporary substitute automobile\u201d under her husband\u2019s policy because Linda McCleave was a \u201cnamed insured\u201d under the policy and the definition of \u201ctemporary substitute automobile\u201d excluded vehicles owned by the \u201cnamed insured.\u201d We disagree with plaintiff\u2019s interpretation of those provisions of its policy.\nThe heart of a contract is the intention of the parties. The intention of the parties must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed. . . . Any ambiguity in a written contract is construed against the party who prepared the writing.\nAdder v. Holman & Moody, Inc., 288 N.C. 484, 492, 219 S.E. 2d 190, 196 (1975).\n[A] contract of insurance should be given the construction which a reasonable person in the position of the insured would have understood it to mean and, if the language used in the policy is reasonably susceptible of different constructions, it must be given the construction most favorable to the insured, since the company prepared the policy and chose the language.\nGrant v. Insurance Co., 295 N.C. 39, 43, 243 S.E. 2d 894, 897 (1978). Applying these principles to plaintiff\u2019s argument, we conclude that a reasonable person in the position of the insured would have understood that the purpose of including the policyholder\u2019s spouse in the definition of \u201cnamed insured\u201d was to broaden coverage under certain circumstances by extending it to one other than the policyholder. We do not believe the parties intended, by a provision evidently designed to extend coverage to one other than the policyholder, to reduce significantly the coverage afforded the policyholder himself. Such reduction would be the effect of the interpretation for which plaintiff contends, and we thus reject the contention.\nAs we interpret the policy, the term \u201cnamed insured\u201d refers to the person designated as the policyholder when that person is driving an \u201cowned automobile.\u201d \u201cNamed insured\u201d includes the policyholder\u2019s spouse only while the spouse is operating an \u201cowned automobile.\u201d Thus, the definition of \u201ctemporary substitute automobile\u201d requires that the automobile used as a substitute not be owned by the person operating it as a substitute. The policy protects the policyholder while operating, as a temporary substitute for the described vehicle while the described vehicle is withdrawn from use for one of the specified reasons, any vehicle not owned by him. The policy also protects the spouse of the policyholder while operating, as a temporary substitute for the described vehicle, a vehicle not owned by said spouse.\nUnder this interpretation the 1971 Monte Carlo owned by Linda McCleave and operated by Melvin McCleave was, at the time of the collision, \u201cnot owned by the Named Insured\u201d within the intent and meaning of that phrase as used in the policy. As noted above, the other requirements for constituting a vehicle a \u201ctemporary substitute automobile\u201d \u2014 viz., that it was used as a substitute for the \u201cowned automobile\u201d when the \u201cowned automobile\u201d was withdrawn for repairs, and that it was used with the permission of the owner, have been satisfied. We thus hold that the insurance contract between plaintiff and Melvin Mc-Cleave provided excess coverage for the collision. At least two other jurisdictions have reached the same result on similar facts. See Caldwell v. Hartford Accident and Indemnity Co., 160 So. 2d 209 (Miss. 1964); Baxley v. State Farm Mutual Automobile Liability Insurance Co., 241 S.C. 332, 128 S.E. 2d 165 (1962).\nThe judgment is\nAffirmed.\nJudges Hedrick and Hill concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Patrick, Harper and Dickson, by Stephen M. Thomas, and Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by James H. Kelly, Jr. and Michael L. Robinson, for plaintiff appellant.",
      "Come and Pitts, by Stanley J. Come, for defendant ap-pellees."
    ],
    "corrections": "",
    "head_matter": "NATIONWIDE MUTUAL INSURANCE COMPANY v. JUNIOR REX TAYLOR; SHARON LAJOY LITTLE, Individually; SHARON LAJOY LITTLE, Administratrix of the Estate of Divette Lajoy Lineberger, LINDA MISHER McCLEAVE, Individually; and LINDA MISHER McCLEAVE, Administratrix of the Estate of Melvin Lee McCleave\nNo. 8125SC163\n(Filed 1 December 1981)\nInsurance \u00a7 84.1\u2014 automobile liability policy \u2014 temporary substitute automobile-vehicle owned by policyholder\u2019s wife\nAn automobile liability policy which includes the spouse of the policyholder as a \u201cnamed insured\u201d under the policy and excludes vehicles owned by the \u201cnamed insured\u201d from the definition of a \u201ctemporary substitute automobile\u201d is interpreted so that \u201cnamed insured\u201d includes the policyholder\u2019s spouse only while the spouse is operating an \u201cowned automobile\u201d and \u201ctemporary substitute automobile\u201d requires only that the automobile used as a substitute not be owned by the person operating it as a substitute. Therefore, an automobile owned by the wife and involved in a collision while being operated by the husband was a \u201ctemporary substitute automobile\u201d within the meaning of the policy issued to the husband where the husband was using the automobile with the permission of the wife as a substitute for an owned automobile when the owned automobile was withdrawn from normal use because of breakdown or need of repair.\nAPPEAL by plaintiff from Ferrell, Judge. Judgment entered 14 January 1981 in Superior Court, CATAWBA County. Heard in the Court of Appeals 17 September 1981.\nPlaintiff filed a complaint pursuant to the Uniform Declaratory Judgment Act, G.S. 1-253 et seq., seeking construction of provisions of a policy of automobile liability insurance. From a judgment for defendants, plaintiff appeals.\nPatrick, Harper and Dickson, by Stephen M. Thomas, and Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by James H. Kelly, Jr. and Michael L. Robinson, for plaintiff appellant.\nCome and Pitts, by Stanley J. Come, for defendant ap-pellees."
  },
  "file_name": "0076-01",
  "first_page_order": 108,
  "last_page_order": 112
}