{
  "id": 8358168,
  "name": "MARYLAND CASUALTY COMPANY, a Corporation, MAX SHERRILL, TED G. REID and JOYCE C. REID v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and KELL A. THOMAS, JR.",
  "name_abbreviation": "Maryland Casualty Co. v. State Farm Mutual Automobile Insurance",
  "decision_date": "1986-10-21",
  "docket_number": "No. 8626SC276",
  "first_page": "140",
  "last_page": "143",
  "citations": [
    {
      "type": "official",
      "cite": "83 N.C. App. 140"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "108 S.E. 2d 22",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "opinion_index": 0
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    {
      "cite": "250 N.C. 60",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8619545
      ],
      "year": 1959,
      "opinion_index": 0,
      "case_paths": [
        "/nc/250/0060-01"
      ]
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    {
      "cite": "266 S.E. 2d 610",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "300 N.C. 247",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561020
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/nc/300/0247-01"
      ]
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  "last_updated": "2023-07-14T16:07:52.921422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges JOHNSON and COZORT concur."
    ],
    "parties": [
      "MARYLAND CASUALTY COMPANY, a Corporation, MAX SHERRILL, TED G. REID and JOYCE C. REID v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and KELL A. THOMAS, JR."
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nPlaintiff, Maryland Casualty Company (Maryland Casualty), provided uninsured motorists coverage for plaintiff Max Sherrill. During the coverage period, Sherrill and plaintiff Ted Reid were involved in a motor vehicle collision with defendant Kell Thomas, Jr. Maryland Casualty alleged in a declaratory judgment action that Thomas was insured by defendant State Farm Mutual Automobile Insurance Company (State Farm) at the time of the accident. State Farm denied coverage. The trial court granted State Farm\u2019s motion for summary judgment. Maryland Casualty appeals. We affirm.\nI\nKell Thomas acquired six months of automobile insurance coverage from State Farm for his 1971 AMC Hornet automobile. The coverage became effective 29 June 1981. A renewal premium was due 12 December 1981. Thomas did not pay the premium.\nOn 21 December 1981 Thomas purchased a Chevrolet truck from a private individual in South Carolina. He drove the truck to North Carolina where he collided with Max Sherrill\u2019s automobile. The collision caused personal injuries to Sherrill and his passenger, Ted Reid.\nMaryland Casualty paid damages to Sherrill and Reid under Sherrill\u2019s uninsured motorists policy. Maryland Casualty then sought to establish in a declaratory judgment action that Thomas\u2019 State Farm policy was in full force at the time of the accident and that coverage extended to his Chevrolet truck.\nThe trial court found there was no genuine issue of material fact regarding the claims against State Farm, thereby granting its motion for summary judgment.\nII\nSummary judgment is appropriate when the pleadings, depositions, interrogatories and admissions on file, together with affidavits show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Johnson v. Phoenix Mutual Life Insurance Company, 300 N.C. 247, 266 S.E. 2d 610 (1980). In order to withstand State Farm\u2019s motion for summary judgment, Maryland Casualty must present a genuine issue of material fact on two issues \u2014 that Thomas\u2019 State Farm policy was in full force at the time of the accident and that his newly purchased Chevrolet truck was a covered vehicle. Because we find no evidence tending to show that Thomas\u2019 truck was a covered vehicle, we need not address the issue of whether the policy was in force.\nIII\nMaryland Casualty asserts in its brief that a factual dispute exists as to whether Thomas\u2019 truck should have received coverage under his AMC Hornet policy. Maryland Casualty claims the truck qualifies as a temporary substitute vehicle. The pertinent portions of Thomas\u2019 State Farm policy provide: \u201cYour covered auto means: ... 4. Any auto . . . you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because o/its: a. breakdown; b. repair; c. servicing; d. loss; or e. destruction.\u201d (Emphasis added.)\nThe usual general rules of construction apply to the provision. The provision is construed liberally in favor of the insured if any construction is necessary. Ransom v. Fidelity and Casualty Co., 250 N.C. 60, 108 S.E. 2d 22 (1959). Here the words \u201cout of normal use because of\u2019 require that the initially covered vehicle be unavailable due to the effect of one of the listed causes. Maryland Casualty argues that Thomas\u2019 deposition tends to show that the Hornet was in poor condition which they claim is the equivalent of a \u201cbreakdown.\u201d It is true that no one disputes that the Hornet was \u201crusted out\u201d and in poor condition. Similarly, however, no one disputes that the Hornet was operable at the time Thomas purchased the truck. Indeed, Thomas admits that the car was operating at the time he bought the truck. Therefore it was not \u201cout of use because of breakdown\u201d under any reasonable definition assignable to these terms. We hold the trial court was correct in finding that, as a matter of law, poor condition does not amount to a breakdown.\nMaryland Casualty cites Ransom as authority for the proposition that a vehicle need not be withdrawn from use because of some mechanical defect in order for another vehicle to qualify as a substitute. Significantly, however, the initially covered vehicle must nonetheless be actually withdrawn from use. In Ransom the insured\u2019s car was in a paint shop and the court merely stated that there was no reason to draw a distinction between an automobile\u2019s unavailability due to body work versus mechanical repair. In the instant case Thomas freely admitted that his Hornet was operable. In no case has substitute vehicle status been given when the initially insured vehicle was merely parked at home and rusty.\nMaryland Casualty also attempts to make such of State Farm agent Neill\u2019s entry in his claims journal stating \u201c[he felt] that in the long run the vehicle [Thomas] was driving could and would apply as replacement vehicle and qualify as substitute.\u201d We fail to see how this statement forecasting a belief in what might occur in the future helps Maryland Casualty\u2019s case. In any event this is a legal conclusion which is not admissible anyway.\nWe affirm.\nJudges JOHNSON and COZORT concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Jones, Hewson & Woolard, by Hunter M. Jones and Harry C. Hewson, for plaintiff appellant.",
      "Golding, Crews, Meekins & Gordon, by Rodney Dean, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MARYLAND CASUALTY COMPANY, a Corporation, MAX SHERRILL, TED G. REID and JOYCE C. REID v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and KELL A. THOMAS, JR.\nNo. 8626SC276\n(Filed 21 October 1986)\nInsurance \u00a7 84.1\u2014 automobile insurance on car \u2014 car operable \u2014 truck not a substitute vehicle\nAn automobile insurance policy issued to the individual defendant which covered his 1971 AMC Hornet did not extend coverage to defendant\u2019s Chevrolet truck because it did not qualify as a temporary substitute vehicle, since the Hornet, though \u201crusted out\u201d and in poor condition, was not withdrawn from use, but was still operable and merely parked at home at the time of the accident.\nAPPEAL by Maryland Casualty Company from Chase B. Saunders, Judge. Judgment entered 3 January 1986 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 27 August 1986.\nJones, Hewson & Woolard, by Hunter M. Jones and Harry C. Hewson, for plaintiff appellant.\nGolding, Crews, Meekins & Gordon, by Rodney Dean, for defendant appellee."
  },
  "file_name": "0140-01",
  "first_page_order": 168,
  "last_page_order": 171
}