{ "id": 2503422, "name": "NATIONWIDE MUTUAL INSURANCE COMPANY v. ROBYN SILVERMAN, a minor child, by and through her Guardian Ad Litem, LEESA RADJA", "name_abbreviation": "Nationwide Mutual Insurance v. Silverman", "decision_date": "1992-11-19", "docket_number": "No. 36PA92", "first_page": "633", "last_page": "638", "citations": [ { "type": "official", "cite": "332 N.C. 633" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "411 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": -1 }, { "cite": "104 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524286 ], "year": 1991, "opinion_index": -1, "case_paths": [ "/nc-app/104/0783-01" ] }, { "cite": "400 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "47" }, { "page": "47" }, { "page": "47" } ], "opinion_index": 0 }, { "cite": "328 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542714 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "143" }, { "page": "143" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0139-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "500" }, { "page": "500" }, { "page": "500" } ], "opinion_index": 0 }, { "cite": "329 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555126 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "608" }, { "page": "608" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "411 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524286 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "787" }, { "page": "787" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0783-01" ] } ], "analysis": { "cardinality": 448, "char_count": 11630, "ocr_confidence": 0.779, "pagerank": { "raw": 2.6777220949793683e-07, "percentile": 0.8263792599491322 }, "sha256": "f118ecf28cde1d37c6347e021131d7f486afee98805979a1e212fa088ac56a76", "simhash": "1:bc058036027f519f", "word_count": 1949 }, "last_updated": "2023-07-14T21:54:56.199642+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NATIONWIDE MUTUAL INSURANCE COMPANY v. ROBYN SILVERMAN, a minor child, by and through her Guardian Ad Litem, LEESA RADJA" ], "opinions": [ { "text": "FRYE, Justice.\nThe issue presented in this case is whether the Court of Appeals erred in holding that the underinsured motorist (UIM) coverages provided in an automobile liability insurance policy which listed two automobiles may be aggregated or stacked to compensate a \u201cClass II\u201d insured person for injuries sustained in an automobile accident. The Court of Appeals concluded that a guest who is injured while riding in a motor vehicle driven by the named insured is a \u201cperson insured,\u201d and therefore entitled to stack the UIM coverages of both vehicles listed in the named insured\u2019s policy of insurance. Nationwide Mutual Insurance Company v. Silverman, 104 N.C. App. 783, 787, 411 S.E.2d 152, 155 (1991). However, we conclude that since a \u201cClass II\u201d insured person\u2019s entitlement to UIM benefits is tied to the vehicle, this \u201cClass II\u201d defendant is not entitled to aggregate or stack the UIM coverages of both automobiles listed in the named insured\u2019s policy. Therefore, we reverse the decision of the Court of Appeals.\nOn 28 July 1988, defendant was injured while a passenger in a 1985 Buick automobile owned and operated by Henry Czubek (Czubek) and insured by plaintiff, Nationwide Mutual Insurance Company (Nationwide). The passengers in the vehicle were: 1) Elsie Czubek, the wife of the driver and a resident of North Carolina; 2) Arlene Pierce, Elsie Czubek\u2019s sister and a resident of Maryland; and 3) defendant, the five-year-old granddaughter of Arlene Pierce and a resident of Maryland. At the time of the accident, Czubek\u2019s Nationwide policy covered two vehicles, the 1985 Buick involved in the accident and a 1977 Ford truck. The policy of insurance provided UIM coverage in the amount of $100,000 per person and $300,000 per accident for each vehicle listed in the policy.\nThe other vehicle involved in the accident was owned by James Revels and insured by an automobile liability insurance policy issued by State Auto Insurance Company (State Auto). State Auto tendered its per-accident coverage of $100,000 to all of the claimants who were occupants of the Czubek vehicle. Defendant received $37,500 of the $100,000 paid by State Auto; however, defendant claims damages in excess of this amount.\nOn 4 April 1990, Nationwide commenced a declaratory judgment action \u201cseeking a declaration of the rights, status, and relations\u201d of Nationwide and defendant under the policy issued to Czubek. Nationwide also sought a judicial determination that only $100,000 in UIM coverage was available to defendant.\nOn 17 May 1990, defendant, through her guardian ad litem, filed an answer to Nationwide\u2019s complaint and asked the court to enter judgment declaring that the policy provides $200,000 UIM coverage to defendant. Subsequently, Nationwide filed a motion, pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(c), for judgment on the pleadings. The motion was heard during the 16 October 1990 Session of Wake County Superior Court. Judge Henry V. Barnette, Jr., entered an order on 30 November 1990 denying plaintiff\u2019s motion and granting judgment on the pleadings for defendant. The trial court held that the UIM coverage available to defendant was $200,000. The Court of Appeals affirmed, holding:\nOnce the claimant is a \u201cperson insured\u201d the ability to stack UIM coverage is available to this claimant. There can be no artificial barriers imposed upon the privilege of stacking; once the claimant here established that she was a \u201cperson insured,\u201d then the privilege of stacking UIM coverage from both covered vehicles flowed to her. The decision of the trial court correctly recognized that Robyn Silverman, as a guest in the motor vehicle of the named insured, was a \u201cperson insured\u201d and was entitled to stack the coverage from both Czubek vehicles totaling $200,000.\nNationwide Mutual Insurance Company v. Silverman, 104 N.C. App. at 787, 411 S.E.2d at 155.\nBefore reaching the question of whether defendant is entitled to stack the UIM coverages provided in Czubek\u2019s policy, we must first determine whether the UIM coverage for each vehicle applies to the injuries she received in the accident. If there is only one coverage, there is nothing to stack.\nWhen trying to determine the amount of UIM coverage available to an injured party, careful attention must be given to the policy language and the applicable statutory provisions. The policy contains definitions of certain terms used in the policy, including the following:\n\u201cYour covered auto\u201d means:\n1. Any vehicle shown in the Declarations.\n\u201cFamily member\u201d means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.\nPart D of the policy issued to Czubek addresses uninsured motorist coverage (and by virtue of an endorsement, UIM coverage) and provides in pertinent part:\nWe will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:\n1. Bodily injury sustained by a covered person and caused by an accident; and\n\u201cCovered person\u201d as used in this Part means:\n1. You or any family member.\n2. Any other person occupying:\na. your covered auto; or\nb. any other auto operated by you.\nDefendant was a guest in the 1985 Buick shown in the declarations section of the Nationwide policy at the time of her accident. Therefore, the policy language clearly establishes that while riding in the Buick (a \u201ccovered auto\u201d), defendant was a \u201ccovered person.\u201d She does not contend that she is a \u201cfamily member\u201d as that term is defined in the policy. While both the 1985 Buick and the 1977 Ford are \u201ccovered autos\u201d under the general definitions section of the policy, defendant was only occupying the Buick automobile at the time of the accident. Therefore, only the UIM coverage on the Buick is available to her under the policy language. This coverage is $100,000 per person.\nThe applicable statutory provisions are N.C.G.S. \u00a7 20-279.21(b)(3) and (4). \u201cPersons insured\u201d is defined in N.C.G.S. \u00a7 20-279.21(b)(3) which addresses UM coverage as follows:\nFor purposes of this section \u201cpersons insured\u201d means the named insured and, while a resident of the same household, the spouse of any 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 in lawful possession of such motor vehicle.\nN.C.G.S. \u00a7 20-279.21(b)(3) (1989) (emphasis added). This definition of \u201cpersons insured\u201d is incorporated by reference in N.C.G.S. \u00a7 20-279.21(b)(4) which addresses UIM coverage. Therefore, the definition of \u201cpersons insured\u201d set forth in \u00a7 20-279.21(b)(3) applies to both UM and UIM coverage.\nThe applicable statute establishes that defendant was a \u201cperson insured,\u201d since she was a guest in a vehicle listed in the policy. However, it is clear that N.C.G.S. \u00a7 20-279.21(b)(3) establishes two classes 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, expressed or implied, of the named insured, the insured vehicle, and a guest in such vehicle. Sproles v. Greene, 329 N.C. 603, 608, 407 S.E.2d 497, 500 (1991); Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47 (1991).\nThe first class of insured persons is referred to as \u201cClass I\u201d insureds and includes the named insured, and while resident of the same household, the spouse of the named insured and relatives of either. Id. In the instant case, the injured party was not a named insured or spouse, and she was not a family member residing in Czubek\u2019s household at the time of the accident. Therefore, she was not a \u201cClass I\u201d insured.\nThe second class of insured persons is referred to as \u201cClass II\u201d insureds and includes any person who uses with the consent, expressed or implied, of the named insured, the insured vehicle, and a guest in such vehicle. Sproles v. Greene, 329 N.C. at 608, 407 S.E.2d at 500; Smith v. Nationwide Mutual Ins. Co., 328 N.C. at 143, 400 S.E.2d at 47; In the instant case, the injured party was merely a guest in one of the covered vehicles. Therefore, she was a \u201cClass II\u201d insured.\nThis Court has held that \u201cClass II\u201d insureds are not entitled to the same UIM coverage as \u201cClass I\u201d insureds. Sproles v. Greene, 329 N.C. at 610, 407 S.E.2d at 500. Persons who are \u201cmembers of the second class are \u2018persons insured\u2019 for the purposes of UM and UIM coverage only when the insured vehicle is involved in the insured\u2019s injuries.\u201d Smith v. Nationwide Mutual Ins. Co., 328 N.C. at 143, 400 S.E.2d at 47. Hence, the UIM coverage available to \u201cClass II\u201d insureds is tied to the vehicle occupied by the injured person at the time of the accident.\nDefendant was a passenger in Czubek\u2019s 1985 Buick when she sustained her injury. Czubek has UIM coverage for the Buick in the amount of $100,000. As a \u201cClass II\u201d person insured, defendant is only entitled to the UIM coverage applicable to the vehicle she was occupying at the time of the accident. The UIM coverage provided for Czubek\u2019s 1977 Ford truck is not applicable to this defendant, a \u201cClass II\u201d insured person, because she was not injured while occupying the Ford truck. Thus, defendant has no coverage. under this portion of the policy to stack with the UIM coverage on the Buick.\nWe conclude therefore that under both the policy language and the applicable statutory provisions, the UIM coverage available to defendant in this case is limited to $100,000. The decision of the Court of Appeals to the contrary must be reversed.\nREVERSED.\n. N.C.G.S. \u00a7 20-279.21 was amended by the General Assembly in 1991. 1991 N.C. Sess. Laws eh. 646, \u00a7\u00a7 1-4. However, the amendments do not affect claims arising or litigation pending prior to the amendments. Id. \u00a7 4. Unless otherwise noted, any citation to or discussion of N.C.G.S. \u00a7 20-279.21 in this opinion will be with respect to that version of the statute in effect at the time of the accident.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Bailey & Dixon, by Gary S. Parsons and David S. Coats, for plaintiff-appellant.", "Taft, Taft & Haigler, by Mario E. Perez, for defendant-appellee." ], "corrections": "", "head_matter": "NATIONWIDE MUTUAL INSURANCE COMPANY v. ROBYN SILVERMAN, a minor child, by and through her Guardian Ad Litem, LEESA RADJA\nNo. 36PA92\n(Filed 19 November 1992)\n1. Insurance \u00a7 527 (NCI4th)\u2014 UIM coverage \u2014 guest in insured vehicle \u2014 Class II insured\nWhere the injured party was merely a guest in one of the vehicles covered by an automobile insurance policy, she was a \u201cClass II\u201d insured for purposes of underinsured motorist (UIM) coverage.\nAm Jur 2d, Automobile Insurance \u00a7 322.\n2. Insurance \u00a7 528 (NCI4th)\u2014 UIM coverage \u2014 Class II insured \u2014 no intrapolicy stacking\nThe UIM coverages provided in an automobile liability policy which listed two vehicles may not be aggregated or stacked to compensate a \u201cClass II\u201d insured person for injuries sustained in an automobile accident since a \u201cClass II\u201d insured person is only entitled to the UIM coverage applicable to the vehicle she was occupying at the time of the accident. N.C.G.S. \u00a7\u00a7 20-279.21(b)(3) and (4).\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 322, 326, 329.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 104 N.C. App. 783, 411 S.E.2d 152 (1991), affirming an order entered by Barnette, J., in the Superior Court, Wake County, on 30 November 1990. Heard in the Supreme Court 11 September 1992.\nBailey & Dixon, by Gary S. Parsons and David S. Coats, for plaintiff-appellant.\nTaft, Taft & Haigler, by Mario E. Perez, for defendant-appellee." }, "file_name": "0633-01", "first_page_order": 661, "last_page_order": 666 }