{
  "id": 8575049,
  "name": "LINDA FAULKNER BUCK, by her Next Friend, ELMER L. FAULKNER v. UNITED STATES FIDELITY & GUARANTY COMPANY",
  "name_abbreviation": "Buck ex rel. Faulkner v. United States Fidelity & Guaranty Co.",
  "decision_date": "1965-09-22",
  "docket_number": "",
  "first_page": "285",
  "last_page": "290",
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      "cite": "265 N.C. 285"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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    {
      "cite": "79 A.L.R. 2d 1252",
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      "reporter": "A.L.R. 2d",
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          "page": "1252-53"
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  "last_updated": "2023-07-14T21:31:16.118019+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "LINDA FAULKNER BUCK, by her Next Friend, ELMER L. FAULKNER v. UNITED STATES FIDELITY & GUARANTY COMPANY."
    ],
    "opinions": [
      {
        "text": "Bobbitt, J.\nUninsured motorists coverage \u201cis designed to further close the gaps inherent in motor vehicle financial responsibility and compulsory insurance legislation.\u201d 7 Am. Jur. 2d, Automobile Insurance \u00a7 135, p. 460. It \u201cis intended, within fixed limits, to provide financial recompense to innocent persons who receive injuries, and the dependents of those who are killed, through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.\u201d Annotation: 79 A.L.R. 2d 1252, 1252-53.\nG.S. 20-279.21 (b) (3), in pertinent part, provides: \u201cNo policy of bodily injury liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of \u00a7 20-279.5, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.\u201d\nG.S. 20-279.21 (b) (3) was enacted as Chapter 640, Session Laws of 1961, entitled \u201cAn Act to amend G.S. 20-279.21 defining motor vehicle liability insurance policy for financial responsibility purposes so as to include protection against uninsured motorists.\u201d (Our italics.)\nThe quoted statutory provision uses but does not define the term \u201cuninsured motor vehicles.\" The term \u201cuninsured automobile\u201d is defined in the uninsured motorist endorsement attached to and an integral part of the automobile liability policy issued by defendant to plaintiff\u2019s father. The wording of the issue submitted by the parties as determinative implies agreement that the meaning of the term \u201cuninsured motor vehicle\u201d as used in the quoted statutory provision and of the term \u201cuninsured automobile\u201d as used in said policy endorsement is the same.\nWhile the liability of Stackhouse, if any, was insured by a \u201cstandard automobile liability insurance policy\u201d issued to it, Stackhouse incurred no liability in connection with the operation of its truck on the occasion when plaintiff was injured. Since the truck was operated by Cowles \u201cwithout the permission, knowledge or consent\u201d of Stackhouse, the Stackhouse policy was not \u201capplicable to the accident with respect to any person or organization legally responsible' for the use\u201d of the truck. Under the admitted and established facts, on the occasion of the collision Cowles was the only person legally responsible for the use of the Stackhouse truck. It is not contended that any automobile liability insurance policy applicable to the accident in which plaintiff was injured provides coverage for the liability of Cowles in connection therewith.\nAdmittedly, the automobile liability insurance policy issued to Stackhouse with reference to its truck complied with the requirements of G.S. 20-279.21 (a) and (b). However, the present action is on the contract between plaintiff\u2019s father and defendant, namely, the uninsured motorists endorsement, and decision herein depends upon the provisions of that contract and not upon those of the policy issued to Stackhouse.\nDefendant contends the Stackhouse truck was in fact an insured vehicle. If the term \u201cinsured vehicle\u201d were given a literal interpretation, fire, theft or collision insurance thereon would negate the status of the truck as an uninsured vehicle. Obviously, the term \u201cuninsured vehicle,\u201d when used in an uninsured motorists endorsement, must be interpreted in the light of the fact that such endorsement is designed to protect the insured, and any operator of the insured\u2019s car with the insured\u2019s consent, against injury caused by the negligence of uninsured or unknown motorists.\nWell-established legal principles include the following: (1) The \u201cprimary rule of construction of statutes is to ascertain and declare the intention of the legislature, and carry such intention into effect to the fullest degree.\u201d 50 Am. Jur., Statutes \u00a7 223. (2) \u201cAn insurance contract or policy should be liberally construed to accomplish the purpose or object for which it is made.\u201d 44 C.J.S., Insurance \u00a7 297(a).\nIn our view, both the intent of the legislation and the wording of the endorsement impel the conclusion that an automobile on which an automobile liability insurance policy has been issued is uninsured within the meaning of said endorsement unless such policy covers the liability of the person using it and inflicting injury on the occasion of the collision or mishap.\nThe question presented and decided is one of first impression in this jurisdiction. Indeed, Application of Travelers Indemnity Company, 235 N.Y.S. 2d 718, affirmed, without written opinion, 246 N.Y.S. 2d 1015, is the only case disclosed by our research involving a closely analogous factual situation. There, although other questions are discussed at greater length, the holding is in accord with the decision reached herein.\nIn Hardin v. Insurance Co., 261 N.C. 67, 134 S.E. 2d 142, where the hearing was on demurrer to defendant\u2019s plea in bar, this Court considered identical provisions of an uninsured motorist endorsement in relation to a wholly different factual situation. There, the demurrer admitted the car was an \u201cinsured automobile.\u201d Moreover, the automobile liability insurance policy covering the car was applicable to the collision in which the plaintiff was injured and covered the liability of the operator thereof. This Court decided the car did not become an \u201cuninsured automobile\u201d by reason of the subsequent receivership and insolvency of the liability insurer. It is noted that G.S. 20-279.21(b)(3) was amended by Chapter 156, Session Laws of 1965, so as to preclude the result reached by this Court in Hardin v. Insurance Co., supra.\nThe conclusion reached is that the issue submitted by the parties as determinative should have been answered, \u201cYes,\u201d and that the court erred in answering it, \u201cNo.\u201d For the error indicated, the judgment of the court below is vacated. The cause is remanded with direction that said issue be answered, \u201cYes,\u201d and that judgment be entered in favor of plaintiff for $5,000.00, together with the costs of this action, in accordance with the stipulation.\nError and remanded.",
        "type": "majority",
        "author": "Bobbitt, J."
      }
    ],
    "attorneys": [
      "Gaylord <fe Singleton for plaintiff appellant.",
      "M. E.. Cavendish for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LINDA FAULKNER BUCK, by her Next Friend, ELMER L. FAULKNER v. UNITED STATES FIDELITY & GUARANTY COMPANY.\n(Filed 22 September, 1965.)\n1. Insurance \u00a7 47.1\u2014\n\u201cUninsured vehicle\u201d as used in an uninsured motorist endorsement in a policy of automobile insurance must be construed in accordance with the language and interpreted in the light of the purport and intent of the endorsement and the pertinent statutes to protect the insured and any operator of insured\u2019s car with insured\u2019s consent against injury caused by the negligence of uninsured or unknown motorists, and such coverage is not affected by the language or statutory compliance of a liability policy, if any, on the other vehicle involved in the collision.\n2. Statutes \u00a7 5\u2014\nA statute must be construed to ascertain and put into effect the legislative intent.\n3. Insurance \u00a7 S\u2014\nAn insurance contract must be liberally construed in accordance with its purport and intent.\n4. Insurance \u00a7 47.1\u2014\nAn automobile upon which a liability policy has been issued is nevertheless an uninsured vehicle within the intent and purview of the statutes and an uninsured motorist endorsement if the policy on such automobile does not cover the liability of a person using the vehicle and inflicting injury on the occasion of the collision in question. G.S. 20-279.21 (b) (3).\n5. Same\u2014\nPlaintiff was injured while driving, with permission of the owner, a vehicle covered by a policy of insurance having an uninsured motorist endorsement. Judgment was obtained against the driver of the other ear involved in the collision but no judgment was obtained against the owner of the other car because of the adjudication that the driver was operating the vehicle without the knowledge or consent of the owner, and execution on the judgment was returned unsatisfied. Held,: Plaintiff was within the coverage of the uninsured motorist endorsement on the policy on the car driven by her.\nAppeal by plaintiff from Bone, E. J., May 24, 1965 Civil Session of Pitt.\nPlaintiff, Linda Faulkner Buck, a minor, by Elmer L. Faulkner, her father and next friend, instituted this action November 12, 1964, to recover $5,000.00 from defendant, United States Fidelity & Guaranty Company, under the uninsured motorist endorsement attached to and constituting an integral part of an automobile liability policy issued by defendant to Elmer L. Faulkner and providing coverage with reference to the operation of his 1953 Mercury.\nThe pleadings and stipulations establish the facts narrated below.\nOn November 30, 1963, plaintiff was operating her father\u2019s said Mercury, with his permission, along U. S. Highway #117. A Chevrolet truck owned by Stackhouse, Inc. (Stackhouse) and operated by Roy Lewis Cowles (Cowles) crashed into the rear of said Mercury, causing plaintiff to sustain severe and permanent personal injuries.\nOn February 6, 1964, plaintiff, by her father and next friend, instituted an action in the Superior Court of Pitt County to recover damages in the amount of $15,000.00, alleging the injuries plaintiff sustained as a result of said collision were caused by the negligent operation of said truck by Cowles as agent for Stackhouse. Cowles did not answer. Stackhouse, answering, denied, inter alia, the alleged agency.\nAt September 28, 1964 Session of Pitt Superior Court, upon trial of said prior action, plaintiff recovered a verdict and judgment for $9,-000.00 against Cowles, but recovered nothing from Stackhouse, the jury having determined that Cowles was not operating the truck as agent of Stackhouse. Execution issued October 13, 1964, on the judgment against Cowles proved \u201cof no avail\u201d and said judgment remains unsatisfied.\nThe policy issued by defendant, United States Fidelity & Guaranty Company, to plaintiff\u2019s father was in full force and effect at the time of said collision of November 30, 1963.\nPertinent provisions of the endorsement on which this action is based, appearing under the caption or title, \u201cPROTECTION Against Un-insubed MotoRists INSURANCE,\u201d are quoted below.\n\u201cIn consideration of the payment of the premium for this endorsement, the Company agrees with the Named Insured, subject to the limits of liability, exclusions, conditions and other terms of this endorsement and to the applicable terms of the policy:\nINSURING AGREEMENTS\n\u201cI. Damages foe Bodily Injury and Property Damage Caused by Uninsured Automobiles.\n\u201cTo pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of:\n\u201c(a) bodily injury, sickness or disease, including death resulting therefrom, hereinafter called \u2018bodily injury/ sustained by the Insured;\n\u201c(b) (Relates to property damage and is not applicable.) caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.\n*\n\u201cII. Definitions.\n* * * * # *\n\u201c(c) Uninsured Automobile. The term \u2018uninsured automobile\u2019 means:\n(1) with respect to damages for bodily injury and property damage an automobile with respect to the ownership, maintenance or use of which there is, in the amounts specified in the North Carolina Motor Vehicle Safety and Financial Responsibility Act, neither (i) cash or securities on file with the North Carolina Commissioner of Motor Vehicles nor (ii) a bodily injury and property damage liability bond or insurance policy, applicable to the accident with respect to any person or organization legally responsible for the use of such automobile; or * * (Our italics.)\nIt was stipulated that the Stackhouse truck, operated by Cowles on the occasion of the collision, \u201cwas covered by a standard automobile liability insurance policy issued to Stackhouse, Inc., which was in full force and effect and covered all of the risks which were required by law to be covered, but said policy did not cover injuries inflicted by the negligence of one who was driving said motor vehicle without the permission of the owner.\u201d\nThe parties waived trial by jury and agreed that the court might find from the evidence any essential facts not established by the pleadings or stipulations and decide the case by answering the following \u2022issue, to wit:\n\u201cWas Roy Lewis Cowles, at the time of the collision referred to in paragraph fifth of the complaint, operating an \u2018uninsured vehicle\u2019 within the definition and meaning of said term as contained in North Carolina General Statute, Chapter 20, Section 279.21, Subsection b(3) and Policy # AF 5766338 issued by United States Fidelity & Guaranty Company, defendant, to Elmer Lloyd Faulkner, as named insured?\u2019'\nAfter hearing evidence offered by both sides with relation thereto, Judge Bone found as a fact that Cowles, at the time of the collision, was operating the Stackhouse truck \u201cwithout the permission, knowledge or consent of Stackhouse, Inc., or any of its officers, agents, or employees.\u201d\nIt was stipulated, if the issue submitted by agreement should be answered, \u201cYes,\u201d plaintiff was entitled to recover of defendant the full sum of $5,000.00, together with the costs of this action; but, if said issue should be answered, \u201cNo,\u201d plaintiff was not entitled to recover any amount from defendant.\nUpon the facts admitted and found, Judge Bone, being \u201cof the opinion that the motor vehicle driven by Roy Lewis Cowles at the time of plaintiff\u2019s injury was not an \u2018uninsured vehicle\u2019 within the meaning of the issue set forth above,\u201d answered said issue, \u201cNo,\u201d and entered judgment for defendant. Plaintiff excepted and appealed.\nGaylord <fe Singleton for plaintiff appellant.\nM. E.. Cavendish for defendant appellee."
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