{
  "id": 8519951,
  "name": "AETNA CASUALTY & SURETY COMPANY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, WILLIAM T. SAWYER, JR., JOHN WILLIAM SLATER, JR., and RALPH LANDON McLEAN, Defendants",
  "name_abbreviation": "Aetna Casualty & Surety Co. v. Nationwide Mutual Insuramce",
  "decision_date": "1989-08-15",
  "docket_number": "No. 895SC182",
  "first_page": "178",
  "last_page": "182",
  "citations": [
    {
      "type": "official",
      "cite": "95 N.C. App. 178"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 1975,
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    {
      "cite": "287 N.C. 465",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "reporter": "N.C. App.",
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  "analysis": {
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  "last_updated": "2023-07-14T18:25:49.576177+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge EAGLES concurs.",
      "Judge Parker dissents."
    ],
    "parties": [
      "AETNA CASUALTY & SURETY COMPANY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, WILLIAM T. SAWYER, JR., JOHN WILLIAM SLATER, JR., and RALPH LANDON McLEAN, Defendants"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nOn 3 October 1986, an auto collision occurred between John Slater and Ralph McLean. At the time, Slater was driving a truck owned by William Sawyer. Sawyer\u2019s truck was insured for liability through Aetna Casualty & Surety Company (Aetna). McLean filed an action against Slater for damages which he sustained in the crash.\nThereafter, Aetna filed this declaratory judgment action. Its complaint states that Slater is not an insured motorist under the terms of its policy with Sawyer, the owner of the truck. Instead, Aetna alleged that its policy does not cover Slater because Slater was \u201cusing [the] vehicle without reasonable belief that [he . . . was] entitled to do so\u201d in contravention of section A(8) in the \u201cEXCLUSIONS\u201d portion of its policy. Aetna asked for a declaration that if it was liable to McLean at all, then its liability would be limited to $25,000.00. That is the maximum amount of liability insurance which a motorist is required to carry under G.S. 20-279.21(b)(2). However, that amount is less than the amount provided for under Sawyer\u2019s policy with Aetna. Later on, Aetna amended its complaint and asked for a declaration that if McLean was awarded a judgment against Slater which exceeded $25,000.00, then Nationwide Mutual Insurance Company (Nationwide) would pay McLean such amounts in accordance with its uninsured motorist coverage with McLean.\nDefendants denied all material allegations and moved to strike plaintiff\u2019s amended complaint. Following defendant\u2019s answer, Aetna moved the court for summary judgment under G.S. 1A-1, Rule 56(c). The court reviewed the motion and its supporting affidavits and granted the motion. Nationwide and McLean appeal.\nThe sole question raised by defendants\u2019 appeal is whether summary judgment was improperly granted for plaintiff. According to appellants, Aetna\u2019s policy with Sawyer, the owner of the truck driven by Slater, must provide coverage to McLean if it is determined that Slater was driving Sawyer\u2019s truck with a reasonable belief that he was entitled to do so. Appellants contend that since Slater\u2019s subjective belief is a question of fact which was not resolved by Aetna\u2019s complaint or supporting affidavit, summary judgment in Aetna\u2019s favor was inappropriate. On the other hand, Aetna argues that Slater was driving without permission\" from Sawyer and that its policy does not extend to him. In the alternative, Aetna contends that Slater was driving without a license and he could not have reasonably believed that he was entitled to drive Sawyer\u2019s truck.\nSummary judgment may \u2018. . . be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 6.S. 1A-1, Rule 56(c). . . . The rule does not contemplate that the court is to decide an issue of fact, but rather it impels the court to determine whether a real issue' of fact exists.\nInsurance Co. v. Chantos, 25 N.C. App. 482, 484-85, 214 S.E.2d 438, 441, cert. denied, 287 N.C. 465, 215 S.E.2d 624 (1975).\nIn the case at bar, Aetna\u2019s policy with Sawyer provides in Part A, entitled \u201cLIABILITY COVERAGE,\u201d that a \u201ccovered person [is] . . . [a]ny person using your covered auto.\u201d However, under the exclusionary section of the policy, section A states \u201c[w]e do not provide Liability Coverage for any person: ... 8. Using a vehicle without a reasonable belief that that person is entitled to do so.\u201d Based upon this language, for an order of summary judgment to have been entered by the court below, Aetna\u2019s pleadings and/or other materials must have compelled the conclusion that Slater was not using Sawyer\u2019s truck under a reasonable belief of entitlement.\nThe record reveals that William Sawyer loaned his truck to one employee, Fall, who loaned it to another employee, Slater, who had the accident. The accident occurred while Slater was out running an errand at the request of Fall. Sawyer, the truck owner, had given Fall permission to drive the truck, but did not give Slater permission. A portion of the transcript testimony from Slater is as follows:\nQ. Mr. Slater, when Mr. Faw [Fall] gave you the truck that night, did you believe that you were entitled to use the truck?\nA. No, not really, because I know that it\u2019s wrong to be driving a car without a license regardless of what goes on, ... .\nQ. So the reason you didn\u2019t think you should be driving was because you didn\u2019t have a license; is that correct?\nA. Right, I didn\u2019t tell him that. No, I didn\u2019t tell him.\nAetna contends that since Slater admits that he knew he was not entitled to drive because he did not have a license, no coverage can be extended to him as an uninsured motorist. We disagree with this position.\nFirst of all, plaintiff\u2019s policy substantially broadens the coverage which it provides beyond those who use the covered vehicle with permission. It now covers persons who have a subjective, reasonable belief that they are entitled to use the vehicle. Consequently, in cases such as the one at bar, where there is a question as to a party\u2019s subjective belief, the question should be submitted to the jury because state of mind is a question of face. See Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, cert. denied, 298 N.C. 293, 259 S.E.2d 299 (1979).\nMoreover, plaintiff incorrectly relies on the position that an absence of a driver\u2019s license demonstrates that Slater could not have reasonably believed that he was entitled to drive. While such an absence may demonstrate that he knew he had no legal right to drive, that is distinguishable from the dispositive question of Slater\u2019s reasonable belief of being \u201centitled\u201d to drive the car based upon the permission of the person possessing the car.\nTherefore, we find that the court erred in granting plaintiff\u2019s motion for summary judgment. The order below is reversed.\nReversed.\nJudge EAGLES concurs.\nJudge Parker dissents.",
        "type": "majority",
        "author": "ORR, Judge."
      },
      {
        "text": "Judge PARKER\ndissenting.\nI respectfully dissent. The reasonable belief that a person is entitled to use a motor vehicle includes both permission to operate the vehicle and the legal right to operate the vehicle. The authority given by the person in possession to another to use a vehicle does not authorize an unlawful act. One may have permission without having the legal right to do an act. Therefore, the word \u201centitle\u201d in the context of an automobile insurance policy should not be limited to the question of permission. In my view, a person without a driver\u2019s license cannot as a matter of law have a reasonable belief that he is entitled to operate a motor vehicle.\nFurthermore, if the question to be submitted to the jury is the subjective reasonable belief of the driver that he was entitled to operate the vehicle, that person, defendant Slater, has admitted that he did not have such a belief.\nFor these reasons, I vote to affirm.",
        "type": "dissent",
        "author": "Judge PARKER"
      }
    ],
    "attorneys": [
      "Poisson, Barnhill & Britt, by James R. Sugg, Jr., for plaintiff-appellee.",
      ". Murchison, Taylor, Kendrick, Gibson & Davenport, by Vaiden P. Kendrick, for defendants Nationwide Mutual Insurance Company and Ralph Landon McLean."
    ],
    "corrections": "",
    "head_matter": "AETNA CASUALTY & SURETY COMPANY, Plaintiff v. NATIONWIDE MUTUAL INSURANCE COMPANY, WILLIAM T. SAWYER, JR., JOHN WILLIAM SLATER, JR., and RALPH LANDON McLEAN, Defendants\nNo. 895SC182\n(Filed 15 August 1989)\nInsurance \u00a7 90\u2014 automobile liability insurance \u2014 exclusion\u2014driver\u2019s subjective reasonable belief that he was entitled to use vehicle \u2014 question of fact\nIn an action to determine insurance coverage on a truck driven by an employee of insured, the trial court erred in entering summary judgment for plaintiff insurer where plaintiff\u2019s policy provided coverage for persons who had a subjective reasonable belief that they were entitled to use the vehicle, and where there is a question as to a party\u2019s subjective belief, as here, the question should be submitted to the jury because state of mind is a question of fact. Moreover, plaintiff could not rely on the position that an absence of a driver\u2019s license demonstrated that the driver could not have reasonably believed that he was entitled to drive, because the driver may have known that he had no legal right to drive but nevertheless may have had a reasonable belief that he was \u201centitled\u201d to drive based upon the permission of the person possessing the car.\nJudge PARKER dissenting.\nAPPEAL by defendants Nationwide Mutual Insurance Company and Ralph Landon McLean from Llewellyn (James D.j, Judge. Order entered 14 October 1988 in Superior Court, New HANOVER County. Heard in the Court of Appeals 17 May 1989.\nPoisson, Barnhill & Britt, by James R. Sugg, Jr., for plaintiff-appellee.\n. Murchison, Taylor, Kendrick, Gibson & Davenport, by Vaiden P. Kendrick, for defendants Nationwide Mutual Insurance Company and Ralph Landon McLean."
  },
  "file_name": "0178-01",
  "first_page_order": 206,
  "last_page_order": 210
}
