{
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  "name": "ALAN DAVID CROWDER v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY",
  "name_abbreviation": "Crowder v. North Carolina Farm Bureau Mutual Insurance",
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    "judges": [
      "Judges BECTON and PARKER concur."
    ],
    "parties": [
      "ALAN DAVID CROWDER v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the court erred in granting partial summary judgment in favor of plaintiff. Specifically, defendant contends the court erroneously concluded as a matter of law that:\n1. Unless otherwise excluded, the insurance policy provides coverage for Underinsured Motorists even though the insured is injured by the operation or use of an automobile which is not a \u201ccovered auto.\u201d\n2. The Plaintiff is a \u201cfamily member\u201d as that term is defined in the insurance policy relating to Underinsured Motorist coverage.\n3. Maximum coverage available to the Plaintiff is in the amount of $35,000, which represents the $60,000 maximum coverage for the Underinsured Motorist provision less the $25,000 received as a result of the liability insurance payment made on behalf of Ansel Junior Sawyer.\nRegarding uninsured motorist coverage the policy here provides:\nWho Is Insured\n1. You or any family member.\n2. Anyone else occupying a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.\n3. Anyone for damages he is entitled to recover because of bodily injury sustained by another insured.\n\u201cFamily member\u201d is defined earlier in this section as \u201ca person related to you by blood, marriage, or adoption who is a resident of your household, including a ward or foster child.\u201d Defendant does not contend that plaintiff is not a \u201cfamily member\u201d under this definition and is thus not an insured under the policy. Rather, defendant contends that the policy only covers the vehicle designated in the policy, namely, plaintiffs father\u2019s 1978 Dodge van. The policy\u2019s underinsured motorist coverage, according to defendant, does not extend to injuries from an accident which does not involve the insured listed vehicle but some other vehicle, in this case Sawyer\u2019s Jeep.\nThe issue is whether an insured person is covered by uninsured or underinsured motorist coverage when the insured or covered vehicle is not in any way involved in the insured\u2019s injuries. For reasons that follow, we hold that, under the particular circumstances of this case, coverage extends to those insured even though not in the covered vehicle at the time of injury.\n\u201cThe avowed purpose of the Financial Responsibility Act, of which Sec. 279.21 is a part, is to compensate the innocent victims of financially irresponsible motorists.\u201d American Tours v. Liberty Mutual Insurance Company, 315 N.C. 341, 346, 338 S.E. 2d 92, 96 (1986). \u201cWhen a statute is applicable to the terms of a policy of insurance, the provisions of that statute become part of the terms of the policy to the same extent as if they were written in it.\u201d Id. at 344, 338 S.E. 2d at 95.\nN.C. Gen. Stat. 20-279.21(b)(3) provides, in pertinent part:\nFor purposes of this section \u201cpersons insured\u201d means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above or any other person or persons in lawful possession of such motor vehicle.\nIn essence, N.C. Gen. Stat. 20-279.21(b)(3) establishes two \u201cclasses\u201d of \u201cpersons insured\u201d: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle. See Gulf American Fire & Casualty Co. v. McNeal, 115 Ga. App. 286, 290-91, 154 S.E. 2d 411, 416 (1967). The latter class are \u201cpersons insured\u201d under N.C. Gen. Stat. 20-279.21 only when the insured vehicle is involved. Id. The former class are \u201cpersons insured\u201d even where the insured vehicle is not involved in the insured\u2019s injuries. Id. \u201c[A]n exclusion which attempts to limit the protection available to those designated as insureds to only the insured vehicle would be contrary to [N.C. Gen. Stat. 20-279.21(b)(3)] and void.\u201d 8C J. Appleman, Insurance Law and Practice, Sec. 5078 at 177-78.\nWhile defendant contends such an exclusion operates to deny plaintiff coverage here, plaintiffs father\u2019s policy clearly tracks N.C. Gen. Stat. 20-279.21(b)(3). The policy places no coverage limitation for \u201c[the named insured] or any family member\u201d but specifically requires \u201c[a]nyone else [to be] occupying a covered auto or a temporary substitute for a covered auto\u201d in order to be insured. The policy thus establishes the very two classes designated by the statute. Even if this policy\u2019s provisions attempted to narrow the coverage classes established by N.C. Gen. Stat. 20-279.21(b)(3), since \u201c[t]he provisions of the Financial Responsibility Act are \u2018written\u2019 into every automobile liability policy as a matter of law, . . . [these] terms of the policy [would] conflict with the statute, [and] the statute [would] prevail.\u201d Insurance Co. v. Chantos, 293 N.C. 431, 441, 238 S.E. 2d 597, 604 (1977).\nAccordingly, we hold that under both the terms of plaintiffs father\u2019s policy and N.C. Gen. Stat. 20-279.21 the court correctly concluded that plaintiff'was covered by this policy even though his injuries were unrelated to the use or operation of his father\u2019s 1978 Dodge van, which was the insured vehicle under the policy.\nOur holding is expressly limited to allowing underinsured motorist coverage for insureds operating, or riding in, a nonowned vehicle. The facts do not present a question, and we expressly reserve deciding, whether an insured operating or riding in an owned but underinsured vehicle would be covered by the underin-sured motorist provision in an owner\u2019s policy issued on another vehicle owned by the insured. See 8C J. Appleman, Insurance Law and Practice, Sec. 5078.15 at 179 (\u201cIt is scarcely the purpose of any insurer to write a single UM coverage upon one of a number of vehicles owned by an insured, or by others in the household, and extend the benefits of such coverage gratis upon all other vehicles . . . .\u201d).\nDefendant contends the court erred by admitting into evidence a letter from United States Fire Insurance Company to Ansel Sawyer, Jr. because this letter was inadmissible hearsay. Defendant also contends this letter was inadmissible under the \u201cbest evidence rule,\u201d now codified as N.C. Gen. Stat. 8C-1, Rule 1002. Plaintiff offered this letter as evidence of Sawyer\u2019s statutory liability coverage. Defendant contends that plaintiff was required under the Rules of Evidence to offer the original policy issued to Sawyer, instead of this letter, in order to establish this coverage. We disagree.\nWe hold, for reasons following, that the court properly admitted this letter under N.C. Gen. Stat. 20-279.21(b)(3) and (4). N.C. Gen. Stat. 20-279.21(b)(3) specifically provides that\na written statement by the liability insurer, whose name appears on the certification of financial responsibility made by the owner of any vehicle involved in an accident with the insured, that such other motor vehicle was not covered by insurance at the time of the accident with the insured shall operate as a prima facie presumption that the operator of such other motor vehicle was uninsured at the time of the accident with the insured for the purposes of recovery under this provision of the insured\u2019s liability insurance policy.\nN.C. Gen. Stat. 20-279.21(b)(4), which requires the offering of underinsured motorist coverage, makes applicable to this coverage all of the statutory provisions for uninsured motorist coverage, including the above-quoted portion of N.C. Gen. Stat. 20-279.21(b)(3), Accordingly, a written statement by the liability insurer creates a prima facie presumption of an operator\u2019s under-insurance as well as uninsurance. By establishing a prima facie presumption of underinsurance for written statements like the Sawyer letter, N.C. Gen. Stat. 20-279.21(b)(3) and (4) implicitly make such statements admissible into evidence in order to trigger the operation of the presumption.\nIn general, \u201c[e]xcept as modified by statute, the general rules which govern the competency, relevancy, and materiality of the evidence in civil actions apply in an action on an insurance policy in determining whether certain evidence offered is admissible or inadmissible.\u201d 46 C.J.S. Insurance Sec. 1322 at 461. Further,\n[i]t is also a rule of statutory construction that \u201c[w]here one statute deals with the subject matter in detail with reference to a particular situation and another statute deals with the same subject matter in general and comprehensive terms, the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto, especially when the particular statute is later enacted.\u201d 7 Strong, N.C. Index 2d, Statutes, Sec. 5, p. 73.\nUtilities Comm. v. Electric Membership Corp., 3 N.C. App. 309, 314, 164 S.E. 2d 889, 892 (1968). See also Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 238, 328 S.E. 2d 274, 279 (1985).\nN.C. Gen. Stat. 8C-1, Rule 802 specifically provides that \u201c[hjearsay is not admissible except as provided by statute or by these rules.\u201d Likewise N.C. Gen. Stat. 8C-1, Rule 1002 provides that \u201c[t]o prove the content of a writing . . . the original writing ... is required, except as otherwise provided in these rules or by statute.\u201d The \u201cexcept as otherwise provided ... by statute\u201d exception under both Rule 802 and Rule 1002 clearly covers written statements under N.C. Gen. Stat. 20-279.21(b)(3). N.C. Gen. Stat. 20-279.21(b)(3) \u201cdeals with the subject matter in detail with reference to a particular situation,\u201d Utility Comm., 3 N.C. App. at 314, 164 S.E. 2d at 892, and effectively modifies the general rules stated in Rule 802 and Rule 1002 by allowing admission of written statements that might otherwise be inadmissible under these general rules.\nDefendant also contends that the court erred by admitting the voir dire testimony of Sawyer that he had liability coverage in the amount of $25,000. Assuming error, arguendo, we hold it harmless since such testimony was merely corroborative of the letter from United States Fire Insurance Company to Sawyer, which letter, as held above, was properly admissible. See Hudson v. Hudson, 21 N.C. App. 412, 413-14, 204 S.E. 2d 697, 698-99 (1974).\nDefendant finally contends the court erred in refusing to submit the issue of plaintiffs contributory negligence to the jury. Plaintiff, in turn, contends that neither the pleadings nor the evidence supported submission of this issue.\nCiting Lawson v. Benton, 272 N.C. 627, 158 S.E. 2d 805 (1968), plaintiff maintains that an issue of contributory negligeiice based upon plaintiffs alleged knowledge of Sawyer\u2019s allegeq intoxication could not be submitted to the jury unless specific\u00e1lly raised in the pleadings. \u201cHowever, the record discloses that [plaintiff] never objected to [evidence of Sawyer\u2019s intoxication] on the specific grounds that the evidence offered was not .Within the issues raised by the pleadings.\u201d McRae v. Moore, 33 N.C. App. 116, 123, 234 S.E. 2d 419, 422-23 (1977). Accordingly, the rule of \u201clitigation by consent\u201d under N.C. Gen. Stat. 1A-1, Rule 15(b) applies to permit adjudication of this issue even though it was not formally raised by the pleadings. Id.\nWe further hold, however, that the evidence was insufficient to require the court to submit the issue of plaintiffs contributory negligence. In general, the test is whether the evidence, \u201cconsidered in the light most favorable to the defendant, contains any inference that the plaintiff himself was guilty of contributory negligence.\u201d Howell v. Lawless, 260 N.C. 670, 671, 133 S.E. 2d 508, 509 (1963). \u201cIf there is more than a scintilla of such evidence, it is a matter for the jury.\u201d Id. \u201cThe issue of contributory negligence should not be submitted to the jury, however, if the evidence reveals that plaintiff was not on notice as to [the driver\u2019s] negligent behavior or, having notice, had insufficient time or opportunity to react.\u201d Watson v. Storie, 70 N.C. App. 327, 329, 318 S.E. 2d 910, 911 (1984).\nA passenger or guest has a right to assume that the driver of the automobile will exercise proper care and caution, until he has notice to the contrary. His acceptance of the driver\u2019s manner of operating the vehicle ordinarily is not contributory negligence unless the driver\u2019s fault or incompetence is so obvious as to demand effort on the passenger\u2019s part to abate danger.\nDinkins v. Carlton and Williams v. Carlton, 255 N.C. 137, 140, 120 S.E. 2d 543, 544 (1961), quoting 5A Am. Jur., Automobiles and Highway Traffic Sec. 789.\nConsidering the evidence here in the light most favorable to defendant, we conclude that it contains no permissible inference that plaintiff was guilty of contributory negligence. The only pertinent evidence was that the driver, Sawyer, had been drinking liquor and riding horses between 9:00 a.m. and 12:00 noon on the day of the accident and that plaintiff was aware of this at the time he accepted a ride home with Sawyer from Sawyer\u2019s girlfriend\u2019s house. However, there was no evidence that Sawyer had any alcohol content in his system after 4:00 p.m. that afternoon when the accident occurred. Prior to the accident, plaintiff had ridden with Sawyer four miles to Sawyer\u2019s girlfriend\u2019s house. There was no evidence of any improper driving on this trip. Plaintiff and Sawyer stayed there for a period in which there was no evidence Sawyer consumed any alcohol. There was also no evidence of any improper driving on the return trip from Sawyer\u2019s girlfriend\u2019s house up until the time of the accident.\nAs in Watson, supra, we hold the evidence of Sawyer\u2019s drinking in the morning \u201ctoo remote as a matter of law . . . and insufficient to raise an inference of [plaintiffs] contributory negligence.\u201d Watson, 70 N.C. App. at 330, 318 S.E. 2d at 912 (citation omitted). Accordingly, we hold that the court did not err in refusing to submit this issue to the jury.\nNo error.\nJudges BECTON and PARKER concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Harrell and Leake, by Larry Leake, for plaintiff-appellee.",
      "Morris, Golding, Phillips & Cloninger, by William C. Morris, Jr., William C. Morris, III, and Jeff Dunham, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "ALAN DAVID CROWDER v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY\nNo. 8524SC872\n(Filed 4 March 1986)\n1. Insurance 8 69\u2014 underinsured motorist coverage \u2014 injury while riding in non-owned vehicle\nUnder both the terms of an automobile insurance policy issued to plaintiffs father and N.C.G.S. 20-279.21, the underinsured motorist coverage of the policy extended to injuries received by plaintiff while riding in a nonowned vehicle not insured under his father\u2019s policy.\n2. Evidence 8 29; Insurance 8 69\u2014 uninsurance or underinsurance \u2014 admissibility of insurer\u2019s written statement\nBy establishing a prima facie presumption of uninsurance or underin-surance for a written statement by a liability insurer, N.C.G.S. 20-279.21(b)(3) and (4) implicitly make such statements admissible into evidence in order to trigger the operation of the presumption. Furthermore, N.C.G.S. 20-279.21(b)(3) and (4) come within the \u201cexcept as otherwise provided ... by statute\u201d exception to the hearsay and best evidence rules, Rules of Evidence 802 and 1002, so as to allow admission of a liability insurer\u2019s written statement that might otherwise be inadmissible under those rules.\n3. Automobiles and Other Vehicles 8 94.7\u2014 riding with intoxicated driver \u2014 contributory negligence \u2014 insufficient evidence\nThe evidence was insufficient to require the trial court to submit an issue of plaintiffs contributory negligence in riding with an intoxicated driver where it tended to show that the accident in question occurred after 4:00 p.m.; the driver had been drinking liquor and riding horses between 9:00 a.m. and 12:00 noon and plaintiff was aware of this when he accepted a ride with the driver; prior to the accident, plaintiff had ridden with the driver four miles to the driver\u2019s girlfriend\u2019s house, but there was no evidence of any improper driving on this trip; there was no evidence that the driver consumed any alcohol while at his girlfriend\u2019s house or that he had any alcohol content in his system after 4:00 p.m.; and there was no evidence of any improper driving on the return trip from the driver\u2019s girlfriend\u2019s house up until the time of the accident.\nAppeal by defendant from Lewis, Robert D., Judge. Judgment entered 2 May 1985 in Superior Court, MADISON County. Heard in the Court of Appeals 12 December 1985.\nPlaintiff was injured while riding as a passenger in a Jeep owned and operated by Ansel Sawyer, Jr. when the Jeep swerved off the road on which it was traveling into a creek. Plaintiff obtained a confession of judgment against Sawyer for $100,000 in damages. Sawyer\u2019s insurance company, United States Fire Insurance Company, paid plaintiff $25,000, representing the full policy limit for automobile liability coverage on Sawyer\u2019s Jeep. An execution on the remainder of the judgment against Sawyer was returned unsatisfied.\nPlaintiffs father had an insurance policy with defendant that included an uninsured/underinsured motorist endorsement. The only covered auto under the policy was a 1978 Dodge van. Plaintiff made a claim against defendant under the underinsured motorist endorsement for the amount by which the liability limits of the policy exceeded the amount collected from Sawyer and his insurance company. Defendant denied coverage, and plaintiff brought this action seeking payment from the underinsured motorist endorsement.\nThe court granted partial summary judgment in favor of plaintiff, ruling that plaintiff was covered by the policy. The court further ruled that the maximum plaintiff could recover from defendant was the uninsured motorist policy limit of $60,000 less the amount already recovered, $25,000, for a maximum possible recovery of $35,000.\nThe jury returned a verdict in favor of plaintiff, finding that he had suffered damages in excess of $60,000. From the judgment awarding plaintiff $35,000 plus interest and costs, defendant appeals.\nHarrell and Leake, by Larry Leake, for plaintiff-appellee.\nMorris, Golding, Phillips & Cloninger, by William C. Morris, Jr., William C. Morris, III, and Jeff Dunham, for defendant-appellant."
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