{ "id": 2526565, "name": "COLLINS & AIKMAN CORPORATION v. THE HARTFORD ACCIDENT & INDEMNITY COMPANY, and AETNA CASUALTY AND SURETY COMPANY", "name_abbreviation": "Collins & Aikman Corp. v. Hartford Accident & Indemnity Co.", "decision_date": "1993-11-05", "docket_number": "No. 252PA92", "first_page": "91", "last_page": "104", "citations": [ { "type": "official", "cite": "335 N.C. 91" } ], "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": "416 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": -1 }, { "cite": "106 N.C. App. 357", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314387 ], "year": 1992, "opinion_index": -1, "case_paths": [ "/nc-app/106/0357-01" ] }, { "cite": "16 ALR4th 11", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "134 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "261 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571586 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0031-01" ] }, { "cite": "417 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502432 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0743-01" ] }, { "cite": "319 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684112 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0621-01" ] }, { "cite": "105 F. Supp. 723", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 329735 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/f-supp/105/0723-01" ] }, { "cite": "206 F. Supp. 427", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1463611 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f-supp/206/0427-01" ] }, { "cite": "292 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 429902 ], "weight": 4, "year": 1934, "pin_cites": [ { "page": "150" }, { "page": "1181" } ], "opinion_index": 0, "case_paths": [ "/us/292/0143-01" ] }, { "cite": "99 S.E. 97", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "177 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654574, 8654559 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0394-02", "/nc/177/0394-01" ] }, { "cite": "123 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572608 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0318-01" ] }, { "cite": "143 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574790 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0188-01" ] }, { "cite": "157 S.E. 860", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "200 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623929 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/200/0511-01" ] }, { "cite": "155 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563178 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0208-01" ] }, { "cite": "261 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574310 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0260-01" ] }, { "cite": "418 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173012 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "350" }, { "page": "811" } ], "opinion_index": 1, "case_paths": [ "/us/418/0323-01" ] }, { "cite": "442 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531922 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "48", "parenthetical": "quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811 (1974)" }, { "page": "704", "parenthetical": "quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811 (1974)" } ], "opinion_index": 1, "case_paths": [ "/us/442/0042-01" ] }, { "cite": "14 L. Ed. 181", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3361178 ], "year": 1851, "pin_cites": [ { "page": "185" } ], "opinion_index": 1, "case_paths": [ "/us/54/0363-01" ] }, { "cite": "499 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317824 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "16", "parenthetical": "quoting Day v. Woodworth, 54 U.S. (13 How.) 363, 371, 14 L. Ed. 181, 185 (1851)" }, { "page": "18", "parenthetical": "quoting Day v. Woodworth, 54 U.S. (13 How.) 363, 371, 14 L. Ed. 181, 185 (1851)" } ], "opinion_index": 1, "case_paths": [ "/us/499/0001-01" ] }, { "cite": "307 F.2d 432", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 204849 ], "year": 1962, "pin_cites": [ { "page": "436", "parenthetical": "Florida characterization of punitive damages as a \"penalty\" conforms with the most widely accepted basis for punitive damages in other American jurisdictions" } ], "opinion_index": 1, "case_paths": [ "/f2d/307/0432-01" ] }, { "cite": "451 A.2d 358", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1982, "pin_cites": [ { "page": "360" } ], "opinion_index": 1 }, { "cite": "122 N.H. 711", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4454906 ], "year": 1982, "pin_cites": [ { "page": "715" } ], "opinion_index": 1, "case_paths": [ "/nh/122/0711-01" ] }, { "cite": "243 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "897" } ], "opinion_index": 1 }, { "cite": "295 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560959 ], "year": 1978, "pin_cites": [ { "page": "42" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0039-01" ] }, { "cite": "243 S.C. 388", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2113641 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "397" }, { "page": "210" } ], "opinion_index": 1, "case_paths": [ "/sc/243/0388-01" ] }, { "cite": "538 A.2d 499", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1988, "opinion_index": 1 }, { "cite": "517 Pa. 616", "category": "reporters:state", "reporter": "Pa.", "year": 1988, "opinion_index": 1 }, { "cite": "365 Pa. Super. 136", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 676298 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "141" }, { "page": "12" } ], "opinion_index": 1, "case_paths": [ "/pa-super/365/0136-01" ] }, { "cite": "382 S.W.2d 17", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10153720 ], "year": 1964, "pin_cites": [ { "page": "23" } ], "opinion_index": 1, "case_paths": [ "/sw2d/382/0017-01" ] }, { "cite": "652 S.W.2d 206", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9932769 ], "year": 1983, "pin_cites": [ { "page": "209-10" } ], "opinion_index": 1, "case_paths": [ "/sw2d/652/0206-01" ] }, { "cite": "298 Minn. 93", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 314284 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "100" }, { "page": "331" } ], "opinion_index": 1, "case_paths": [ "/minn/298/0093-01" ] }, { "cite": "440 A.2d 359", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7941967 ], "year": 1982, "pin_cites": [ { "page": "361" } ], "opinion_index": 1, "case_paths": [ "/a2d/440/0359-01" ] }, { "cite": "484 P.2d 1252", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1971, "pin_cites": [ { "page": "1253" } ], "opinion_index": 1 }, { "cite": "775 P.2d 55", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11940379 ], "year": 1988, "pin_cites": [ { "page": "56" } ], "opinion_index": 1, "case_paths": [ "/p2d/775/0055-01" ] }, { "cite": "239 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "293 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565860, 8565831, 8565883, 8565915, 8565951 ], "year": 1977, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/293/0589-02", "/nc/293/0589-01", "/nc/293/0589-03", "/nc/293/0589-04", "/nc/293/0589-05" ] }, { "cite": "237 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "345", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "34 N.C. 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Ed. 2d", "year": 1962, "opinion_index": 1 }, { "cite": "371 U.S. 862", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450502, 450921, 450579, 451292, 451005 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/us/371/0862-05", "/us/371/0862-02", "/us/371/0862-04", "/us/371/0862-03", "/us/371/0862-01" ] }, { "cite": "125 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "286", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "257 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565335 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/nc/257/0018-01" ] }, { "cite": "220 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "406" } ], "opinion_index": 1 }, { "cite": "27 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555938 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nc-app/27/0698-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "807" } ], "opinion_index": 1 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "134" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "236 Cal. Rptr. 216", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1987, "pin_cites": [ { "page": "219" } ], "opinion_index": 1 }, { "cite": "191 Cal. App. 3d 74", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2210858 ], "year": 1987, "pin_cites": [ { "page": "77-78" } ], "opinion_index": 1, "case_paths": [ "/cal-app-3d/191/0074-01" ] }, { "cite": "293 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3925720 ], "weight": 2, "year": 1934, "pin_cites": [ { "page": "339" }, { "page": "401" } ], "opinion_index": 1, "case_paths": [ "/us/293/0335-01" ] }, { "cite": "78 L. Ed. 1468", "category": "reporters:federal", "reporter": "L. 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THE HARTFORD ACCIDENT & INDEMNITY COMPANY, and AETNA CASUALTY AND SURETY COMPANY" ], "opinions": [ { "text": "WEBB, Justice.\nThe first issue raised by this appeal involves the choice of law to be applied. Hartford contends that California law should be used in interpreting the insurance policy and that punitive damages are not covered by the policy under the law of California. We agree with the Court of Appeals that this case is governed by N.C.G.S. \u00a7 58-3-1 which provides:\nAll contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein, and all contracts of insurance the applications for which are taken within the State shall be deemed to have been made within this State and are subject to the laws thereof.\nThe policy in this case protects the interest of plaintiff against having to pay damages for the wrongful acts of its agents. The insurance contract is deemed to have been made in North Carolina.\nThe appellant, relying on Land Co. v. Byrd, 299 N.C. 260, 261 S.E.2d 655 (1980), Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967) and Bundy v. Commercial Credit Co., 200 N.C. 511, 157 S.E. 860 (1931), contends that the law. of the state in which the last act in the making of a contract governs and that would be California in this case. None of these cases involved insurance policies and the implication of N.C.G.S. \u00a7 58-3-1 was not considered.\nThe North Carolina cases involving insurance contracts, Connor v. Insurance Co., 265 N.C. 188, 143 S.E.2d 98 (1965), Roomy v. Insurance Co., 256 N.C. 318, 123 S.E.2d 817 (1962) and Keesler v. Insurance Co., 177 N.C. 394, 99 S.E. 97 (1919), upon which Hartford relies are distinguishable. Keesler involved a life insurance policy issued in Georgia to a resident of Georgia. No interest in North Carolina was involved. Connor and Roomy involved automobile liability policies on vehicles owned by residents of other states. The vehicle in each case was titled in another state and the insurance policy was purchased in another state. This Court held in each case, without any reference to N.C.G.S. \u00a7 58-3-1 or its predecessor, that the law of the states in which the policies were issued was the law that governed. It is the very few contacts with this state that distinguishes Connor and Roomy from this case.\nHartford also relies on Hartford A. and I. Co. v. Delta and Pine Land Co., 292 U.S. 143, 78 L. Ed. 1178 (1934), in which the Supreme Court of the United States held that a Mississippi statute similar to N.C.G.S. \u00a7 58-3-1 violated the due process clause as the statute was applied in that case. In that case, the plaintiff had purchased an indemnity bond from the defendant in Tennessee where both parties had offices. A defalcation occurred in Mississippi. The United States Supreme Court reversed a decision by the Supreme Court of Mississippi which had held that Mississippi law governed. The Supreme Court said a state \u201cmay not, on grounds of policy, ignore a right which has lawfully vested elsewhere, if, as here, the interest of the forum has but slight connection with the substance of the contract obligations. Here performance at most involved only the casual payment of money in Mississippi.\u201d Id. at 150, 78 L. Ed. at 1181. We believe that is the distinction from this case. In this case, the State has much more than a casual connection with the substance of the insurance policy. Most of the vehicles insured were titled in this state and plaintiff\u2019s transportation division is located in this state.\nThe last two cases upon which Hartford relies are Lowe\u2019s No. Wilkesboro Hardware v. Fidelity Mut. L. Ins. Co., 206 F. Supp. 427 (M.D.N.C. 1962) and Turner v. Liberty Mut. Ins. Co., 105 F. Supp. 723 (E.D.N.C. 1952). Lowe\u2019s involved a choice of law question in an action in tort, the plaintiff having alleged that the defendant negligently failed to act on an application for a life insurance policy. A tort claim does not implicate N.C.G.S. \u00a7 58-3-1. Lowe\u2019s is not authority for this case.\nIn Turner, the United States District Court for the Eastern District of North Carolina held that a predecessor statute to N.C.G.S. \u00a7 58-3-1 did not require that the law of North Carolina govern in interpreting a motor vehicle liability policy when the policy was issued in New Jersey by a New Jersey corporation to a citizen of New Jersey. The motor vehicle was involved in an accident in North Carolina. The court cited Delta and Pine Land Co. and said it would violate the Fourteenth Amendment to allow the statute to require the law of a state to govern \u201cregardless of the relative importance of the interests of the forum as contrasted with those created at the place of the contract.\u201d Id. at 726.\nWe believe that the distinction between this case and those cases upon which. Hartford relies and which hold that N.C.G.S. \u00a7 58-3-1 or similar statutes do not apply or are unconstitutional, lies in the connection of this state with the interests insured. North Carolina has a close connection with the interests insured in this case. N.C.G.S. \u00a7 58-3-1 clearly means that the law of North Carolina applies and we do not believe the United States Constitution prohibits it.\nHartford contends that if North Carolina law applies it is not liable under the terms of the policy. The policy says:\nThe company will pay on behalf of the insured ultimate net loss in excess of the total applicable limit ... of underlying insurance . . . because of bodily injury, personal injury, property damage or advertising injury ....\nWhen used in reference to this insurance . . .:\n\u201cbodily injury\u201d means bodily injury, sickness or disease sustained by any person which occurs during the policy period;\n\u201cdamages\u201d do not include fines or penalties . . .;\n\u201cultimate net loss\u201d means all sums which the insured and his or her insurers shall become legally obligated to pay as damages\nHartford contends that the policy does not cover losses by the plaintiff for punitive damages. It says this is so because the policy insures for loss for \u201cbodily injury, personal injury, property damage or advertising injury\u201d and punitive damages in this case were not awarded for any of the injuries. Hartford argues that compensatory damages were awarded for the damages for bodily injury but punitive damages were not. It says the punitive damages were awarded for the bad conduct of the plaintiff\u2019s agent and not for damages for bodily injury. Hartford distinguishes Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 319 S.E.2d 217 (1984), a medical malpractice case in which we held the insurance carrier was liable for punitive damages awarded against the defendant on the ground that in Mazza the policy provided coverage for all damages, which would include punitive damages. There is no such coverage in this case, says Hartford.\nWe hold that the policy in this case covers liability for punitive damages. If compensatory or nominal damages for bodily injury had not been recoverable by the personal representatives of the two estates in this case, the plaintiff could not have recovered punitive damages. Hawkins v. Hawkins, 331 N.C. 743, 417 S.E.2d 447 (1992). Punitive damages were recovered because of the recovery for bodily injuries to the deceased persons. This recovery is covered by the policy.\nHartford next contends that punitive damages are penalties and thus not covered by the policy which defines damages as not to include \u201cfines or penalties.\u201d Hartford relies on Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964), to argue that punitive damages are penal in nature and should be construed as a penalty.\nWe do not believe Allred is authority for this case. In Allred, the plaintiff sued the defendants for assault and battery and prayed for punitive damages. The question before this Court was whether the privilege against self incrimination prevented the plaintiff from examining the defendants before trial. We said that \u201cpenalty is an elastic term with many different shades of meaning.\u201d Id. at 38, 134 S.E.2d at 192. We held that for purposes of exercising the privilege against self incrimination in that case, in which the defendants would be subject to arrest and bail if punitive damages were awarded, the defendants could not be examined before trial. The references to the definition of a penalty in a case involving the privilege against self incrimination are not authority for this case.\nWe agree with the Court of Appeals that \u201cpenalty\u201d as used in the policy is at best ambiguous. This being so, we must interpret it against the insurer who wrote the policy. Trust Co. v. Insurance Co., 276 N.C. 348, 172 S.E.2d 518 (1970). It takes some construing of the word \u201cpenalty\u201d to hold that it includes punitive damages. This we cannot do.\nFor the reasons stated in this opinion, we affirm the Court of Appeals.\nAFFIRMED.", "type": "majority", "author": "WEBB, Justice." }, { "text": "Justice MEYER\ndissenting.\nContrary to the majority, I conclude that N.C.G.S. \u00a7 58-3-1 does not control the choice of law question here. Rather, I believe that- the traditional rule of lex loci contractus applies, and thus, California law is the correct law to be applied in this case. Assuming arguendo, however, that North Carolina law is the correct choice, I conclude that the language of the policy does not cover awards of punitive damages, as the policy was limited to damages \u201cbecause of bodily injury\u201d and excludes \u201cfines and penalties\u201d from recovery. I therefore dissent.\nAs the majority notes, Wickes Companies, Inc. (\u201cWickes\u201d), a Delaware Corporation with its primary place of business and headquarters in Santa Monica, California, is the parent company of Collins and Aikman Corporation (\u201cC&A\u201d). C&A is a Delaware Corporation, which at all times pertinent to the case before us was headquartered in New York City, with sixteen subsidiaries doing business in twenty-eight states, the Virgin Islands, and several foreign countries. It has administrative offices, sales offices, and warehouses throughout the United States. It operates thirty-four manufacturing plants that are located in New York, Indiana, North Carolina, Georgia, Oklahoma, Rhode Island, Texas, Quebec, and Ontario.\nWickes recommended that its subsidiary, C&A, use Marsh & McLennan, an independent insurance broker in Los Angeles, California, to negotiate an excess liability insurance policy. C&A had attempted to get a policy through Marsh & McLennan\u2019s office in North Carolina but had been unsuccessful. Marsh & McLennan began negotiations with Hartford Accident and Indemnity Company (\u201cHartford\u201d) to create an excess liability insurance policy for C&A. Hartford dealt almost exclusively with Marsh & McLennan\u2019s California office in creating the excess liability policy for C&A. In preparing the quotation, Hartford used information that indicated C&A was headquartered in New York City. The policy identified the named insured as Collins and Aikman, located at 210 Madison Avenue, New York, NY 10016. Hartford received the premium payment from Marsh & McLennan.\nDuring the policy period, Hartford was potentially liable for the excess on actual claims filed against C&A for motor vehicle accidents in Louisiana, Georgia, Pennsylvania, Ohio, North Carolina, New Jersey, and New York.\nThe majority says that N.C.G.S. \u00a7 58-3-1 controls this case. The statute covers \u201call contracts of insurance on property, lives, or interests in this State . . . and all contracts of insurance the applications for which are taken within the State shall be deemed to have been made within this State.\u201d N.C.G.S. \u00a7 58-3-1 (1991). N.C.G.S. \u00a7 58-3-1 has been construed to apply when a policy of insurance covers lives, property, or tangible assets physically located in the state. However, I believe that N.C.G.S. \u00a7 58-3-1 does not apply here, where a contract is formed in either Connecticut or California and the application for the insurance came from California, C&A being unsuccessful in its attempt to get insurance through Marsh & McLennan\u2019s North Carolina office. The United States Supreme Court has noted that\n[a] legislative policy which attempts to draw to the state of the forum control over the obligations of contracts elsewhere validly consummated and to convert them for all purposes into contracts of the forum regardless of the relative importance of the interests of the forum as contrasted with those created at the place of the contract, conflicts with the guaranties of the Fourteenth Amendment.\nHartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 150, 78 L. Ed. 1178, 1181-82, reh\u2019g denied, 292 U.S. 607, 78 L. Ed. 1468 (1934).\nBased on the fact that Hartford\u2019s policy is a nationwide policy that was created in Connecticut for a business headquartered in New York City, which covers claims in many states all over the nation and even in Canada and the Virgin Islands, I believe that the correct rule to apply in determining what law is applicable is the longstanding rule in North Carolina: lex loci contractus, that the substantive law of the state where the last act to make a binding contract takes place controls all aspects of the interpretation of contracts. Land Co. v. Byrd, 299 N.C. 260, 262, 261 S.E.2d 655, 656 (1980); Bundy v. Commercial Credit Co., 200 N.C. 511, 516, 157 S.E. 860, 863 (1931).\nOn many occasions, this Court has applied this rule in determining what law should be applied in disputes over insurance contracts. In Roomy v. Allstate Ins. Co., 256 N.C. 318, 123 S.E.2d 817 (1962), this Court adopted the rule that the interpretation of an insurance contract depends upon the law of the place where the policy is delivered. See also Connor v. State Farm Mut. Auto. Ins. Co., 265 N.C. 188, 143 S.E.2d 98 (1965); Keesler v. Mutual Benefit Life Ins. Co. of New York, 177 N.C. 394, 99 S.E. 97 (1919).\nThe majority attempts to distinguish Roomy, Keesler, and Connor by arguing that the policy at issue here has a much greater causal connection to North Carolina than the cases in which this Court and the United States Supreme Court applied lex loci contractus. While I agree that in this case there are more connections with North Carolina because a majority of the trucks are registered in North Carolina and C&A has manufacturing plants in North Carolina, I disagree that these connections, when looking at the policy as a whole, are enough to justify applying North Carolina law to this contract. As noted above, this policy covered not only trucks, but every other type of imaginable risk involving the business operations and products of C&A that could result in the injuries noted in the policy. C&A had thirty-four plants in seven states and two Canadian provinces. In addition, C&A had listed its headquarters as New York City at the time the policy was issued. During the policy term, there were nineteen accidents that potentially could have involved the Hartford excess policy; nine of these accidents were not in North Carolina. Finally, in neither Roomy, Keesler, nor- Connor did we rely upon or even discuss that the number of contacts with North Carolina was determinative of the choice of law.\nWhen reviewing the circumstances of the issuance of this policy and the contents of the policy itself, I fail to find enough connections with North Carolina to justify the application of N.C.G.S. \u00a7 58-3-1. I believe that lex loci contractus should apply and that the applicable law should be determined based upon the substantive law of the state where the last act creating a binding contract took place. In regard to insurance contracts, it is usually held that the delivery of the contract is the last act to make a binding contract. Mutual Life Ins. Co. v. Johnson, 293 U.S. 335, 339, 79 L. Ed. 398, 401 (1934). Here, the policy was mailed from Hartford, Connecticut, to Marsh & McLennan in Los Angeles, California, sometime in March of 1987. Marsh & McLennan had possession of the policy until 8 March 1988, by which time the accident in question had already occurred and the policy had expired. Because the contract was negotiated by, paid by, and delivered to Marsh & McLennan in Los Angeles and because the policy covers so many different interests around the United States and the world, I believe that the proper choice of law is California, which is the state where the last act to make a binding contract (the delivery of the policy) took place. In California, punitive damages are uninsurable as a matter of public policy; thus, the plaintiff here would not be able to recover punitive damages from Hartford under its policy of insurance. State Farm Fire & Cas. Co. v. Superior Court, 191 Cal. App. 3d 74, 77-78, 236 Cal. Rptr. 216, 219 (1987). In addition, here the policy itself states that \u201cdamages\u201d do not include damages for which insurance is prohibited by the law applicable to the construction of the policy.\nAssuming arguendo, however, that North Carolina law applies, Hartford\u2019s policy still affords no coverage for punitive damages. Punitive damages, quite simply, are not awarded \u201cbecause of bodily injury.\u201d Punitive damages are awarded solely to punish the wrongdoer for his outrageous conduct. Oestreicher v. Stores, 290 N.C. 118, 134, 225 S.E.2d 797, 807 (1976). In Cavin\u2019s Inc. v. Atlantic Mut. Ins. Co., 27 N.C. App. 698, 220 S.E.2d 403 (1975), the Court of Appeals held that the liability insurance policy in question did not afford coverage for punitive damages. In Cavin\u2019s, the policy defined \u201cdamages\u201d to mean only those payable \u201cbecause of a personal injury.\u201d The Court of Appeals explained that punitive damages were not payable because of personal injury, stating:\nPunitive damages are never awarded merely because of a personal injury inflicted nor are they measured by the extent of the injury; they are awarded because of the outrageous nature of the wrongdoer\u2019s conduct. Being awarded solely as punishment to be inflicted on the wrongdoer and as a deterrent to prevent others from engaging in similar wrongful conduct, punitive damages can in no proper sense be considered as being awarded \u201conly with respect to personal injury\u201d or as damages \u201cwhich are payable because of personal injury.\u201d Compensatory damages, which are awarded to compensate and make whole the injured party and which are therefore to be measured by the extent of the injury, are the only damages which are payable \u201cbecause of personal injury.\u201d\nId. at 702, 220 S.E.2d at 406.\nIn addition, this Court has interpreted the phrase \u201cdamages sustained\u201d to not include punitive damages. In Transportation Co. v. Brotherhood, 257 N.C. 18, 125 S.E.2d 277, cert. denied, 371 U.S. 862, 9 L. Ed. 2d 100, reh\u2019g denied, 371 U.S. 899, 9 L. Ed. 2d 131 (1962), we held that\n[d]amages sustained are limited to actual damages suffered as a result of the wrong inflicted. Punitive damages are never awarded as compensation. They are awarded above and beyond actual damages, as a punishment for the defendant\u2019s intentional wrong. They are given to the plaintiff in a proper case, not because they are due, but because of the opportunity the case affords the Court to inflict punishment for conduct intentionally wrongful.\nId. at 30, 125 S.E.2d at 286 (citation omitted).\nThe Court of Appeals, relying on Transportation Co. v. Brotherhood, determined that the phrase \u201cdamages because of bodily injuries\u201d did not include punitive damages. Nationwide Mut. Ins. Co. v. Knight, 34 N.C. App. 96, 100-01, 237 S.E.2d 341, 345, disc. rev. denied, 293 N.C. 589, 239 S.E.2d 263 (1977) (emphasis added). In addition, numerous courts in other jurisdictions support the view that punitive damages are not damages \u201cbecause of bodily injury.\u201d See Union Ins. Co. v. Kjeldgaard, 775 P.2d 55, 56 (Colo. Ct. App. 1988); Brown v. Western Cas. & Surety Co., 484 P.2d 1252, 1253 (Colo. Ct. App. 1971); Braley v. Berkshire Mut. Ins. Co., 440 A.2d 359, 361 (Me. 1982); Caspersen v. Webber, 298 Minn. 93, 100, 213 N.W.2d 327, 331 (1973); Schnuck Markets, Inc. v. Transamerica Ins. Co., 652 S.W.2d 206, 209-10 (Mo. Ct. App. 1983); Crull v. Gleb, 382 S.W.2d 17, 23 (Mo. Ct. App. 1964); Creed v. Allstate Ins. Co., 365 Pa. Super. 136, 141, 529 A.2d 10, 12 (1987), appeal denied, 517 Pa. 616, 538 A.2d 499 (1988); Laird v. Nationwide Ins. Co., 243 S.C. 388, 397, 134 S.E.2d 206, 210 (1964). The policy here was for damages \u201cbecause of bodily injury\u201d; thus, the policy does not cover punitive damages.\nIt is true that this Court has concluded that when a policy is written to cover \u201call damages, including damages for death, which are payable because of injury to which this insurance applies,\u201d punitive damages may be included in the recovery. Mazza v. Medical Mut. Ins. Co., 311 N.C. 621, 629, 631, 319 S.E.2d 217, 222, 223 (1984). In Mazza, the policy provided medical malpractice coverage for \u201c[a]ny claim . . . arising out of the performance of professional services rendered.\u201d Id. at 623, 319 S.E.2d at 219. Thus, in Mazza, the insurer chose to define damage coverage by the cause of the damage (professional services) not by the effect on the injured party (bodily injury). Thus, Mazza can be distinguished from the case at hand because here, the damages that may be recovered have been limited to damages incurred \u201cbecause of bodily injury.\u201d '\nIn determining that the policy in Mazza provided for punitive damages awarded on account of medical malpractice, this Court carefully and expressly distinguished the Court of Appeals cases that held that policies do not cover punitive damages. This Court noted:\nA careful examination of the insurance contracts, factual situations, and holdings in Cavin\u2019s and Knight convinces us that these two cases are clearly distinguishable from the case sub judice, and are not any legal precedent upon which to base a decision favorable to the defendant Medical Mutual. In other words, neither Cavin\u2019s nor Knight control in this situation.\nMazza, 311 N.C. at 631, 319 S.E.2d at 223.\nThe policy at issue here contains language identical to that found in Knight and similar to that in Cavin\u2019s-, thus, it seems that Mazza, which held Cavin\u2019s and Knight distinguishable, should not apply to this case. The policy at issue here is simply not as broad as that found in Mazza because Hartford included the limiting phrase \u201cbecause of bodily injury\u201d in its definition of damages covered. Thus, Hartford should not be required to pay the punitive damages awarded in this case.\nThe majority relies on Hawkins v. Hawkins, 331 N.C. 743, 417 S.E.2d 447 (1992), for the proposition that if the plaintiff is entitled to recover compensatory damages for bodily injury, the plaintiff can also recover punitive damages. I do not find Hawkins apposite here. In Hawkins, we did not condition the recovery of punitive damages on the recovery of compensatory damages; in fact, we allowed punitive damages when no compensatory damages were awarded. Hawkins, which incidentally was an assault and battery case and had nothing whatsoever to do with an insurance contract, merely establishes that the recovery of punitive damages is not dependent on the recovery of compensatory damages, whether for bodily injury or any other injury or damage.\nFurthermore, Hartford should not be liable for punitive damages here because Hartford\u2019s policy defines \u201cdamages\u201d not to include fines or penalties. This Court has held that \u201cambiguity in the terms of an insurance policy is not established by the mere fact that the plaintiff makes a claim based upon a construction of its language which the company asserts is not its meaning.\u201d Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). Where a nontechnical term such as \u201cpenalty\u201d is not defined in the policy, the court should give the term its ordinary meaning. Grant v. Emmco Ins. Co., 295 N.C. 39, 42, 243 S.E.2d 894, 897 (1978). \u201cPenalty\u201d is defined as \u201c[a] punishment established by law or authority for a crime or an offense,\u201d The American Heritage Dictionary of the English Language 1337 (3d ed. 1992); \u201cpunitive damages\u201d are \u201c[d]amages awarded by a court against a defendant as a deterrent or punishment to redress an egregious wrong perpetrated by the defendant,\u201d id. at 1469. Thus, punitive damages come within this definition of the term \u201cpenalty.\u201d\nIn America Home Assurance Co. v. Fish, 122 N.H. 711, 715, 451 A.2d 358, 360 (1982), the court found that where losses that include \u201cfines and penalties imposed by law\u201d are excluded from coverage, punitive damages are not covered within the policy. See also Northwestern Nat\u2019l Cas. Co. v. McNulty, 307 F.2d 432, 436 (5th Cir. 1962) (Florida characterization of punitive damages as a \u201cpenalty\u201d conforms with the most widely accepted basis for punitive damages in other American jurisdictions).\nThe interpretation of punitive damages as a fine or penalty is supported by the United States Supreme Court, which has found that a jury may inflict what are called exemplary, punitive, or vindictive damages \u201c \u2018by means of a civil action, and the damages, inflicted by way of penalty or punishment, [are] given to the party injured.\u2019 \u201d Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 16, 113 L. Ed. 2d 1, 18 (1991) (quoting Day v. Woodworth, 54 U.S. (13 How.) 363, 371, 14 L. Ed. 181, 185 (1851)). The United States Supreme Court has also held that punitive damages are not compensation for injury but, rather, are \u201c \u2018private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.\u2019 \u201d International Broth. of Elec. Workers v. Foust, 442 U.S. 42, 48, 60 L. Ed. 2d 698, 704 (1979) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811 (1974)).\nI conclude that giving the terms \u201cpenalty\u201d and \u201cfine\u201d their ordinary meanings, they include punitive damages. As such, it is clear that the exclusion of fines and penalties would exclude punitive damages.\nThe majority errs in determining that the policy should be interpreted under North Carolina law, and even assuming arguendo that the majority was correct in its choice of law, the language of the policy does not cover awards of punitive damages. I vote to reverse the decision of the Court of Appeals.\nChief Justice Exum and Justice Parker join in this dissenting opinion.", "type": "dissent", "author": "Justice MEYER" } ], "attorneys": [ "Parker, Poe, Adams & Bernstein, by Irvin W. Hankins, III and Josephine H. Hicks, for plaintiff-appellee.", "Patterson, Dilthey, Clay & Bryson, by Ronald C. Dilthey, and Cranfill, Sumner & Hartzog, by Susan K. Burkhart, for defendant-appellant The Hartford Accident and Indemnity Company." ], "corrections": "", "head_matter": "COLLINS & AIKMAN CORPORATION v. THE HARTFORD ACCIDENT & INDEMNITY COMPANY, and AETNA CASUALTY AND SURETY COMPANY\nNo. 252PA92\n(Filed 5 November 1993)\n1. Insurance \u00a7 99 (NCI4th)\u2014 excess liability insurance \u2014 delivery of policy in another state \u2014 N.C. connections to interests insured \u2014 interpretation governed by N.C. law\nEven though an application for excess liability insurance came from California and the last act to make a binding insurance contract (the delivery of the policy) occurred in California, the contract is deemed to have been made in North Carolina under N.C.G.S. \u00a7 58-3-1 and the law of North Carolina thus governs in interpreting the policy where North Carolina has close connections with the interests insured by the policy because most of the insured\u2019s vehicles were titled in this state and the insured\u2019s transportation division is located in this state.\nAm Jur 2d, Insurance \u00a7 320 et seq.\n2. Insurance \u00a7 895 (NCMth)\u2014 excess liability insurance \u2014 coverage of punitive damages\nAn umbrella excess liability insurance policy provided coverage for punitive damages awarded in a wrongful death action where the policy insured for loss \u201cbecause of bodily injury\u201d since punitive damages were recovered because of the recovery for bodily injuries to the decedents.\nAm Jur 2d, Insurance \u00a7 703 et seq.\nLiability insurance coverage as extending to liability for punitive or exemplary damages. 16 ALR4th 11.\n3. Insurance \u00a7 895 (NCMth) \u2014 excess liability insurance \u2014punitive damages not fines or penalties\nPunitive damages do not constitute \u201cfines or penalties\u201d which are excluded from coverage under an excess liability insurance policy.\nAm Jur 2d, Insurance \u00a7 703 et seq.\nLiability insurance coverage as extending to liability for punitive or exemplary damages. 16 ALR4th 11.\nJustice MEYER dissenting.\nChief Justice EXUM and Justice PARKER join in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31, from a decision of the Court of Appeals, 106 N.C. App. 357, 416 S.E.2d 591 (1992), reversing and remanding a judgment entered by Saunders, J., in the Superior Court, Mecklenburg County, on 15 March 1991. Heard in the Supreme Court 12 April 1993.\nThis appeal brings to the Court a question as to the liability insurance coverage under an insurance policy issued by the defendant, the Hartford Accident and Indemnity Company, to plaintiff. The plaintiff is a wholly owned subsidiary of Wickes Companies, Inc., a Delaware corporation with its principal place of business in California. Wickes hired an independent insurance broker in California to procure an insurance policy for the plaintiff. The broker negotiated with Hartford and procured an umbrella/excess liability policy.\nThe policy provided for $5,000,000 of insurance coverage in excess of a $2,000,000 primary policy issued by defendant Aetna Casualty and Surety Company. The policy period was from 1 March 1987 through 29 February 1988. The policy was sent to the insurance broker\u2019s office in California and remained there until 8 March 1988, at which time it was sent to the plaintiff\u2019s office in Charlotte, North Carolina. The plaintiff owned one hundred and two trucks of which ninety-seven were titled in North Carolina. The plaintiff\u2019s transportation division is located in Albemarle, North Carolina.\nOn 29 February 1988, one of the trucks which was titled in this state was involved in an accident in Yadkin County, North Carolina, in which two people were killed. In a wrongful death action growing from the accident, the jury awarded $2,500,000 in compensatory damages and $4,000,000 in punitive damages against the plaintiff in this case. The parties settled the case for $4,200,000.\nThe defendant Hartford denied that it was liable for any punitive damages and this action was commenced for a determination of the rights and liabilities of the parties. The superior court denied a motion for partial summary judgment by the plaintiff and allowed a motion for partial summary judgment by Hartford, holding that Hartford was not responsible for any recovery for punitive damages. The Court of Appeals reversed, holding that Hartford was liable for such a recovery. We allowed Hartford\u2019s petition for discretionary review.\nParker, Poe, Adams & Bernstein, by Irvin W. Hankins, III and Josephine H. Hicks, for plaintiff-appellee.\nPatterson, Dilthey, Clay & Bryson, by Ronald C. Dilthey, and Cranfill, Sumner & Hartzog, by Susan K. Burkhart, for defendant-appellant The Hartford Accident and Indemnity Company." }, "file_name": "0091-01", "first_page_order": 125, "last_page_order": 138 }