{ "id": 139525, "name": "JAMES E. HENDERSON and wife, GLENDA J. HENDERSON v. UNITED STATES FIDELITY & GUARANTY COMPANY, GLENDA LINTON and GREAT AMERICAN INSURANCE COMPANY", "name_abbreviation": "Henderson v. United States Fidelity & Guaranty Co.", "decision_date": "1997-07-24", "docket_number": "No. 490PA96", "first_page": "741", "last_page": "750", "citations": [ { "type": "official", "cite": "346 N.C. 741" } ], "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": "476 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "124 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8556489 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0519-01" ] }, { "cite": "20 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1942, "opinion_index": 0 }, { "cite": "221 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627468 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/221/0269-01" ] }, { "cite": "139 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "263 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568661 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/263/0199-01" ] }, { "cite": "405 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722077 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "244" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/us/405/0233-01" ] }, { "cite": "374 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565485 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0559-01" ] }, { "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" ] }, { "cite": "150 U.S.C. \u00a7 45", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(A)(1)" } ], "opinion_index": 0 }, { "cite": "57 F.3d 316", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7411151 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "319" }, { "page": "319" }, { "page": "320" }, { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/f3d/57/0316-01" ] }, { "cite": "791 P.2d 535", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "114 Wash. 2d 1018", "category": "reporters:state", "reporter": "Wash. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "784 P.2d 1273", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "56 Wash. 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App.", "case_ids": [ 1722704 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/wash-app/64/0916-01" ] }, { "cite": "439 N.Y.S.2d 858", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "422 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "52 N.Y.2d 663", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 1101298 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/52/0663-01" ] }, { "cite": "613 So. 2d 8", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "601 So. 2d 587", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7490839 ], "opinion_index": 0, "case_paths": [ "/so2d/601/0587-01" ] }, { "cite": "995 F.2d 154", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10512643 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f2d/995/0154-01" ] }, { "cite": "249 Neb. 286", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5280638 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/neb/249/0286-01" ] }, { "cite": "29 Cal. 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Supp. 853", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7398378 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/f-supp/720/0853-01" ] }, { "cite": "753 F. Supp. 853", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7387003 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f-supp/753/0853-01" ] }, { "cite": "60 F.3d 813", "category": "reporters:federal", "reporter": "F.3d", "year": 1995, "opinion_index": 0 }, { "cite": "857 F. Supp. 423", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7403622 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f-supp/857/0423-01" ] }, { "cite": "857 F. Supp. 1560", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7406798 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f-supp/857/1560-01" ] }, { "cite": "985 F.2d 446", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10513443 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f2d/985/0446-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1970, "pin_cites": [ { "page": "522" } ], "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": "456 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790113, 790149, 790183, 790186, 790131 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0112-03", "/nc/340/0112-05", "/nc/340/0112-01", "/nc/340/0112-04", "/nc/340/0112-02" ] }, { "cite": "453 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "117 N.C. 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App.", "case_ids": [ 11888599 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "109" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0103-01" ] } ], "analysis": { "cardinality": 902, "char_count": 21426, "ocr_confidence": 0.75, "pagerank": { "raw": 1.6754009406572208e-07, "percentile": 0.6966319271895774 }, "sha256": "d8c706278d56a93c3820d36ae7a7c54d48bf50a1bcba3f293ab555fb422fbb4d", "simhash": "1:4f307b286641a931", "word_count": 3387 }, "last_updated": "2023-07-14T19:49:00.247328+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES E. HENDERSON and wife, GLENDA J. HENDERSON v. UNITED STATES FIDELITY & GUARANTY COMPANY, GLENDA LINTON and GREAT AMERICAN INSURANCE COMPANY" ], "opinions": [ { "text": "PARKER, Justice.\nTHE UNDERLYING ACTION\nThe underlying action arose out of a real estate transaction in which James and Glenda Henderson (\u201cplaintiffs\u201d) purchased from Clifton Hicks Builder, Inc. (\u201cHicks\u201d) a residence situated in a drainage area subject to severe flooding. The evidence at trial demonstrated that before signing the contract to purchase, plaintiffs asked Hicks\u2019 president whether there had been or would be any water problems on the lot, to which he responded \u201cno.\u201d In fact, the lot had flooded once during construction of the house. The jury found that Hicks had engaged in unfair and deceptive practices as follows: (i) Hicks falsely represented to the Hendersons that they would not have any water problems on lot 82 (the lot the Hendersons purchased from Hicks), (ii) Hicks concealed from the Hendersons the existence of a surface-water flooding problem on lot 82, and (iii) Hicks concealed from the Hendersons the existence and location of a drainage grate and piping system which were installed on lots 83 and 84 and which piped water through lot 82. The trial court concluded that Hicks\u2019 acts and omissions constituted unfair and deceptive trade practices in violation of chapter 75 of the North Carolina General Statutes and entered judgment for plaintiffs against Hicks in the amount of $1,375,000 plus pre- and post-judgment interest, costs, and attorneys\u2019 fees. Hicks appealed the trial court\u2019s decision in the underlying action to the Court of Appeals, which affirmed the trial court. Henderson v. Clifton Hicks Builder, Inc., 117 N.C. App. 731, 453 S.E.2d 877 (unpublished), disc. rev. denied, 340 N.C. 112, 456 S.E.2d 314 (1995).\nTHE PRESENT ACTION\nIn addition to the underlying action, plaintiffs instituted the present action on 18 May 1993 against United States Fidelity & Guaranty Company (\u201cUSF&G\u201d), Glenda Linton, and Great American Insurance Company (\u201cGreat American\u201d). Plaintiffs alleged claims for bad faith and unfair trade practices in their complaint. Plaintiffs dismissed their extracontractual claims on 21 August 1995. These extra-contractual claims were the only claims brought against defendant Glenda Linton, an employee of USF&G. Plaintiffs seek recovery in satisfaction of the judgment, costs, and attorneys\u2019 fees assessed against Hicks, defendants\u2019 insured.\nPlaintiffs moved for partial summary judgment against USF&G and Great American on the issue of coverage. At the hearing, defendants also moved for partial summary judgment on the coverage issue. On 28 July 1995 the trial court granted partial summary judgment for plaintiffs, determining that coverage exists for plaintiffs\u2019 damages, costs, attorneys\u2019 fees, and interest under the \u201cadvertising injury\u201d coverage of the USF&G policy and the \u201cadvertising liability\u201d coverage of the Great American policy. The trial court also determined that no coverage exists under the \u201cproperty damage\u201d and \u201cpersonal injury\u201d provisions of either policy.\nDefendants appealed to the Court of Appeals, and plaintiffs asserted cross-assignments of error. On 15 October 1996 the Court of Appeals reversed the trial court\u2019s entry of summary judgment in favor of plaintiffs and remanded the case to the trial court for entry of judgment for defendants. The Court of Appeals held that the term \u201cunfair competition\u201d as contained in the \u201cadvertising injury\u201d and \u201cadvertising liability\u201d coverages of the two policies does not include statutory unfair and deceptive practices prohibited by chapter 75 of the North Carolina General Statutes. Henderson v. U.S. Fidelity & Guar. Co., 124 N.C. App. 103, 109, 476 S.E.2d 459, 463 (1996). The Court of Appeals also held that plaintiffs\u2019 damages did not arise out of an \u201coccurrence\u201d as required for coverage under the \u201cbodily injury\u201d and \u201cproperty damage\u201d provisions of USF&G\u2019s insurance policy and the \u201cpersonal injury\u201d and \u201cproperty damage\u201d provisions of the Great American policy. Id. at 111, 476 S.E.2d at 464. Finally, the Court of Appeals held that there is no coverage under USF&G\u2019s policy for \u201cpersonal injury.\u201d Id. at 112, 476 S.E.2d at 464. On 7 February 1997 this Court allowed plaintiffs\u2019 petition for discretionary review. We agree with the Court of Appeals\u2019 decision and affirm, although on different grounds.\nTHE POLICIES\nHicks maintained an insurance policy with USF&G that included comprehensive general liability and broad form property damage liability coverage with limits of $1,000,000 per occurrence, and an excess \u201ccatastrophe liability policy\u201d through Great American with limits of $1,000,000 per occurrence.\nThe USF&G policy provides coverage for \u201cadvertising injury\u201d as follows:\n(A) The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . advertising injury to which this insurance applies, sustained by any person or organization and arising out of the conduct of the named insured\u2019s business, within the policy territory....\nThe policy defines an \u201cadvertising injury\u201d as\ninjury arising out of an offense committed during the policy period occurring in the course of the named insured\u2019s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan.\nThe Great American policy provides coverage for damages which the insured is legally obligated to pay because of \u201cadvertising liability.\u201d The policy defines an \u201cadvertising liability\u201d as\nliability arising out of the named insured\u2019s advertising activities for libel, slander or defamation of character; invasion of rights of privacy; infringement of copyright, title or slogan; and piracy or unfair competition or idea misappropriation committed or alleged to have been committed during the policy period.\nDISCUSSION\nPlaintiffs contend that coverage exists because the acts committed by Hicks were found by the trial court in the underlying action to have been \u201cunfair or deceptive practices\u201d in violation of chapter 75 of the North Carolina General Statutes and because defendants\u2019 insurance policies provide coverage for \u201cadvertising injury\u201d and \u201cadvertising liability,\u201d which includes coverage for \u201cunfair competition.\u201d Defendants contend that their respective policies do not provide coverage for Hicks\u2019 liability because the applicable provisions of their respective policies do not extend coverage to the violation of statutory unfair or deceptive practices.\nNeither policy defines \u201cunfair competition\u201d; however, the rules for determining the meaning of terms used in an insurance policy have been well established. See Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E.2d 518 (1970). Any ambiguity as to the meaning of words used in an insurance policy must be construed in the policyholder\u2019s favor. Id. at 354, 172 S.E.2d at 522. For an ambiguity to exist the language of the policy must be, in the opinion of this Court, fairly and reasonably susceptible to either of the constructions for which the parties contend. Id. Unless the context requires otherwise, definitions provided in the policy should be applied to terms, and in the absence of such definitions, nontechnical words are to be given a meaning consistent with the sense in which they are used in ordinary speech. Id. The court may not under the guise of interpretation rewrite the contract and impose liability where none was intended by the parties to the contract. Id.\nThe context of the term \u201cunfair competition\u201d in the policies is relevant to the term\u2019s interpretation. See id. \u201cUnfair competition\u201d is listed in both policies among such offenses as libel; slander; defamation; violation of right of privacy; piracy; copyright, title, or slogan infringement; and idea misappropriation. The USF&G policy lists \u201cunfair competition\u201d directly between the offenses of piracy and infringement of copyright, title, or slogan. The Great American policy groups \u201cunfair competition\u201d in a subset of the advertising injury offenses along with the offenses of piracy and idea misappropriation. The offenses surrounding the term at issue all refer to causes of action brought between business rivals for offenses pertaining to the disparagement or appropriation of another\u2019s name, style, identity, or other form of representation of products.\nThe Court of Appeals in the instant case held that, \u201c[g]iven the context in which \u2018unfair competition\u2019 appears in the policies at issue here, it is reasonable to construe the term as a reference to the common law tort of unfair competition, long recognized in North Carolina.\u201d Henderson, 124 N.C. App. at 109, 476 S.E.2d at 463. The Court of Appeals went on to hold that \u201cthe term \u2018unfair competition\u2019 as contained in the \u2018advertising injury\u2019 and \u2018advertising liability\u2019 coverages of the USF&G and Great American policies does not include statutory unfair and deceptive trade practices prohibited by [chapter 75 of the North Carolina General Statutes].\u201d Id.\nAlthough an issue of first impression in North Carolina, numerous courts in other jurisdictions have interpreted the meaning of \u201cunfair competition\u201d in the context of \u201cadvertising injury\u201d or \u201cadvertising liability\u201d provisions of comprehensive general liability policies. Several courts have held consistently with the Court of Appeals that the term \u201cunfair competition\u201d is limited to the common law tort. See, e.g., Standard Fire Ins. Co. v. Peoples Church of Fresno, 985 F.2d 446 (9th Cir. 1993); Gencor Indus., Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560 (M.D. Fla. 1994); Atlantic Mut. Ins. Co. v. Brotech Corp., 857 F. Supp. 423 (E.D. Pa. 1994), aff\u2019d without op., 60 F.3d 813 (3d Cir. 1995); Nationwide Mut. Ins. Co. v. Dynasty Solar, Inc., 753 F. Supp. 853 (N.D. Cal. 1990); Globe Indem. Co. v. First Am. State Bank, 720 F. Supp. 853 (W.D. Wash. 1989), aff\u2019d without op., 904 F.2d 710 (9th Cir. 1990); Pine Top Ins. Co. v. Public Util. Disk No. 1, 676 F. Supp. 212 (E.D. Wash. 1987); A-Mark Fin. Corp. v. CIGNA Prop. & Cas. Cos., 34 Cal. App. 4th 1179, 40 Cal. Rptr. 2d 808 (1995); McLaughlin v. National Union Fire Ins. Co., 23 Cal. App. 4th 1132, 29 Cal. Rptr. 2d 559 (1994); John Markel Ford, Inc. v. Auto-Owners Ins. Co., 249 Neb. 286, 543 N.W.2d 173 (1996).\nOther courts have declined to adopt the conclusion that the term \u201cunfair competition\u201d refers only to the traditional common law tort but have concluded that the term refers exclusively to conduct between competitors. See, e.g., Keating v. National Union Fire Ins. Co., 995 F.2d 154 (9th Cir. 1993); Practice Mgmt. Assocs., Inc. v. Old Dominion Ins. Co., 601 So. 2d 587 (Fla. Dist. Ct: App.), disc. rev. denied, 613 So. 2d 8 (Fla. 1992); Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663, 422 N.E.2d 518, 439 N.Y.S.2d 858 (1981); Aetna Cas. & Sur. Co. v. M&S Indus., Inc., 64 Wash. App. 916, 827 P.2d 321 (1992); Boggs v. Whitaker, Lipp & Helea, Inc., 56 Wash. App. 583, 784 P.2d 1273, disc. rev. denied, 114 Wash. 2d 1018, 791 P.2d 535 (1990).\nWe agree with those decisions which conclude that the term \u201cunfair competition\u201d requires some component of competitive injury and thus refers only to acts against competitors. We find particularly persuasive the Third Circuit Court of Appeals\u2019 discussion in Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316 (3d Cir. 1995), applying Pennsylvania law. In Granite the plaintiffs brought suit against Aamco Transmissions, Inc. (Aamco), asserting that Aamco was liable pursuant to Pa. Stat. Ann. tit. 73, \u00a7 201-3 of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Granite State Insurance Company (Granite) insured Aamco under a comprehensive general liability insurance policy for personal injury or advertising injury arising out of the conduct of Aamco\u2019s business. Aamco contended that it had coverage under the \u201cunfair competition\u201d category of the \u201cadvertising injury\u201d coverage. The court held that the Granite policy did not provide coverage for these claims, although the court did not base its decision on the reasoning that the phrase \u201cunfair competition\u201d unambiguously refers only to the traditional common law tort. Granite, 57 F.3d at 319. The Granite court reasoned as follows:\n[Cjourts are not uniform in describing the tort of unfair competition. . . . Therefore, it is not so easy to conclude that there is one narrow and clear category of the common law tort.\nFurthermore, regardless of the scope of the common law tort of unfair competition, a person reading the term \u201cunfair competition\u201d as a category of \u201cadvertising injury\u201d within an insurance policy would not necessarily understand the term to be limited to a common law definition. ... In short, we see no valid reason to exclude conduct described in the statute simply because it might not be regarded as unfair competition in a common law sense.\nYet even if the term \u201cunfair competition\u201d within an insurance policy is construed broadly with respect to the character of an insured\u2019s conduct, that construction does not determine the class of persons who can present claims against the insured which will be regarded as being claims for unfair competition within the policy. Thus, in order for [the insured] to succeed, it must show that claims by its customers injured by its own practices reasonably can be described as unfair competition claims within the context of the insurance coverage. In this endeavor [the insured] fails for, regardless of the nature of the insured\u2019s conduct, a claim by a consumer of its products or services arising from that conduct hardly can be characterized as a claim for unfair competition. After all, \u201ccompetition\u201d connotes an insured\u2019s relationship with other persons or entities supplying similar goods or services.\nId. at 319. The Granite court held that Granite\u2019s insurance policy was \u201cnot ambiguous with respect to the relationship required between a plaintiff in an underlying action and an insured for that plaintiff\u2019s claim to be considered unfair competition within the policy.\u201d Id. at 320. The court held that a competitor of the insured, but not its customer, can assert a claim which may be covered under the \u201cunfair competition\u201d category of the \u201cadvertising injury\u201d coverage. Id.\nThe statute involved in the underlying action in Granite is the \u201cPennsylvania Unfair Trade Practices and Consumer Protection Law.\u201d The Pennsylvania statute distinguishes between \u201cunfair methods of competition\u201d and \u201cunfair or deceptive acts or practices,\u201d although it lists them together in one subsection. Pa. Stat. Ann. tit. 73, \u00a7 201-2(4) (1993) (amended 1996). Our comparable statute similarly distinguishes between the two concepts. N.C.G.S. \u00a7 75-1.1(a) provides that \u201c[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\u201d (Emphasis added.) Our statute is patterned after section 5 of the Federal Trade Commission Act, 150 U.S.C. \u00a7 45(A)(1), and we look to federal case law for guidance in interpreting the statute. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980), overruled on other grounds by Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d 385 (1988). In Federal Trade Comm\u2019n v. Sperry & Hutchinson Co., 405 U.S. 233, 244, 31 L. Ed. 2d 170, 179 (1972), the United States Supreme Court clarified that the \u201cunfair methods of competition\u201d language refers to acts against competitors, while the \u201cunfair and deceptive practices\u201d language protects consumers.\nWe agree with the Granite court that a competitor of the insured, but not its customer, can assert a claim which may be covered under the \u201cunfair competition\u201d category of the \u201cadvertising injury\u201d coverage. See Granite, 57 F.3d at 320. This result is consistent with the overall definition of \u201cadvertising injury\u201d in the two policies. As we have indicated, the term \u201cunfair competition\u201d is listed in both policies among such offenses as libel; slander; defamation; violation of right of privacy; piracy; copyright, title, or slogan infringement; and idea misappropriation. These categories all define claims which an insured\u2019s competitor might assert against it.\nThis result is also consistent with this State\u2019s interpretation of the common law tort of unfair competition as an offense committed in the context of competition between business rivals. See, e.g., Charcoal Steak House of Charlotte v. Staley, 263 N.C. 199, 139 S.E.2d 185 (1964); Carolina Aniline & Extract Co. v. Ray, 221 N.C. 269, 20 S.E.2d 59 (1942); D-E-W Foods Corp. v. Tuesday\u2019s of Wilmington, Inc., 29 N.C. App. 519, 225 S.E.2d 122, disc. rev. denied, 290 N.C. 660, 228 S.E.2d 451 (1976). In Extract Co. v. Ray, 221 N.C. 269, 20 S.E.2d 59, this Court stated: \u201cUnfair competition is not confined to the palming off by one competitor of his goods as the goods of another. The same wrongful result may be brought about by other means or practices.\u201d Id. at 274, 20 S.E.2d at 62 (citing International News Service v. Associated Press, 248 U.S. 215, 63 L. Ed. 211 (1918)). The gravamen of unfair competition is the protection of a business from misappropriation of its commercial advantage earned through organization, skill, labor, and money. International News Service, 248 U.S. at 239-40, 63 L. Ed. at 221. See also Ruder & Finn, Inc., 52 N.Y.2d at 671, 422 N.E.2d at 522, 439 N.Y.S.2d at 862.\nWe conclude that, read in context, the term \u201cunfair competition\u201d as used in these policies is not ambiguous. In the context of these policies, the definition of unfair competition refers to claims which an insured\u2019s competitor might assert against it and should not be expanded to include conduct such as that at issue in the underlying action.\nThe Court of Appeals also held that plaintiffs\u2019 damages did not arise out of an \u201coccurrence\u201d as required for coverage under both policies and that there is no coverage under USF&G\u2019s policy for \u201cpersonal injury.\u201d We agree with the Court of Appeals\u2019 decision and affirm on these issues as well. Accordingly, as modified herein, the decision of the Court of Appeals is\nAFFIRMED.\n. Although the trial court did not specifically mention the \u201cbodily injury\u201d provisions of the two policies, the parties have stipulated that \u201cthe issue of coverage based on bodily injury was briefed, argued and ruled on by the court in addition to the issue of coverage based on personal injury referred to in the judgment entered by the court\u201d", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "James M. Kimzey and Katherine E. Jean for plaintiff-appellants.", "Wilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for defendant-appellee United States Fidelity & Guaranty Company.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey, for defendant-appellee Great American Insurance Company." ], "corrections": "", "head_matter": "JAMES E. HENDERSON and wife, GLENDA J. HENDERSON v. UNITED STATES FIDELITY & GUARANTY COMPANY, GLENDA LINTON and GREAT AMERICAN INSURANCE COMPANY\nNo. 490PA96\n(Filed 24 July 1997)\nInsurance \u00a7 895 (NCI4th)\u2014 indemnity policy for builder \u2014 sale of residence in drainage area \u2014 advertising liability coverage \u2014 unfair trade practice not included\nThe term \u201cunfair competition\u201d was not ambiguous as used in insurance policies where plaintiffs purchased from a builder a residence situated in a drainage area subject to severe flooding, plaintiffs brought this action against the builder\u2019s insurers alleging bad faith and unfair trade practices, the trial court granted summary judgment for plaintiffs, determining that coverage existed under the advertising injury and advertising liability coverage of the policies, and the Court of Appeals reversed, holding that \u201cunfair competition\u201d as contained in the policies does not include statutory unfair and deceptive practices prohibited by chapter 75 of the North Carolina General Statutes. Although plaintiffs contend that coverage exists because the acts committed by the builder were found in the underlying action to have been \u201cunfair or deceptive\u201d in violation of Chapter 75, neither policy defines \u201cunfair competition\u201d and the offenses surrounding the term in the policies refer to causes of action brought between business rivals pertaining to the disparagement or appropriation of another\u2019s name, style, identity, or other form of representation of products. The North Carolina Supreme Court agrees with those decisions from other states in which the term \u201cunfair competition\u201d requires some component of competitive injury and thus refers only to acts against competitors. A competitor of the insured, but not its customer, can assert a claim which may be covered under the unfair competition category of the advertising injury coverage; this result is consistent with the overall definition of advertising injury in the two policies and is consistent with this State\u2019s interpretation of the common law tort of unfair competition as an offense committed in the context of competition between business rivals.\nAm Jur 2d, Insurance \u00a7\u00a7 703 et seq.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 124 N.C. App. 103, 476 S.E.2d 459 (1996), reversing a judgment granting summary judgment in favor of plaintiffs entered on 28 July 1995 by Cashwell, J., in Superior Court, Wake County, and remanding the cause for entry of summary judgment in favor of defendant insurance companies. Heard in the Supreme Court 14 May 1997.\nJames M. Kimzey and Katherine E. Jean for plaintiff-appellants.\nWilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for defendant-appellee United States Fidelity & Guaranty Company.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey, for defendant-appellee Great American Insurance Company." }, "file_name": "0741-01", "first_page_order": 779, "last_page_order": 788 }