{ "id": 131983, "name": "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation", "name_abbreviation": "Progressive American Insurance v. Vasquez", "decision_date": "1999-06-09", "docket_number": "No. 286PA98", "first_page": "386", "last_page": "400", "citations": [ { "type": "official", "cite": "350 N.C. 386" } ], "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": "502 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": -1 }, { "cite": "129 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652781 ], "year": 1998, "opinion_index": -1, "case_paths": [ "/nc-app/129/0742-01" ] }, { "cite": "363 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358673 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0595-01" ] }, { "cite": "379 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "324 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486785 ], "year": 1989, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0513-01" ] }, { "cite": "1991 N.C. Sess. Laws 322", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1979 N.C. Sess. Laws 720", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1961 N.C. Sess. Laws 831", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "74 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "237 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607860 ], "year": 1953, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0227-01" ] }, { "cite": "420 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "127", "parenthetical": "quoting James E. Snyder, Jr., North Carolina Automobile Insurance Law \u00a7 30-1 (1988)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505670 ], "year": 1992, "pin_cites": [ { "page": "189", "parenthetical": "quoting James E. Snyder, Jr., North Carolina Automobile Insurance Law \u00a7 30-1 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0184-01" ] }, { "cite": "155 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "130" } ], "opinion_index": 0 }, { "cite": "270 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569483 ], "year": 1967, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0532-01" ] }, { "cite": "461 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "322" }, { "page": "320" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "341 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793187 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "60" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0597-01" ] }, { "cite": "502 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "15" }, { "page": "14" }, { "page": "15", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652781 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "748" }, { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0742-01" ] }, { "cite": "776 F. Supp. 1225", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 11319318 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1234", "parenthetical": "applying North Carolina law" } ], "opinion_index": 1, "case_paths": [ "/f-supp/776/1225-01" ] }, { "cite": "382 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "762" }, { "page": "762" }, { "page": "763" } ], "opinion_index": 1 }, { "cite": "325 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492574 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "263" }, { "page": "263" }, { "page": "265" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0259-01" ] }, { "cite": "461 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "322" }, { "page": "321" }, { "page": "322" } ], "opinion_index": 1 }, { "cite": "341 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793187 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "604" }, { "page": "605" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0597-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 34611, "ocr_confidence": 0.76, "pagerank": { "raw": 4.4383617707059854e-07, "percentile": 0.9210668266759954 }, "sha256": "ff26a3d0c11fa2e533ca87e703e3ff9ce60b3e919cad3d676480ae81547ed8b4", "simhash": "1:bdc9d132956f0122", "word_count": 5479 }, "last_updated": "2023-07-14T14:46:00.917666+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Martin joins in this dissenting opinion." ], "parties": [ "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation" ], "opinions": [ { "text": "ORR, Justice.\nIn this case, we are asked to decide, inter alia, the threshold issue of whether N.C.G.S. \u00a7 20-279.21 of the Financial Responsibility Act requires a commercial excess liability policy to offer separate uninsured and underinsured motorist (\u201cUM\u201d and \u201cUIM,\u201d respectively) coverage in addition to what is offered by the underlying policy.\nOn 1 April 1994, defendant Aetna Casualty & Surety Company (now known as Travelers Casualty and Surety Company) issued a \u201cBusiness Auto Coverage Policy\u201d (\u201cBAP\u201d) and a separate \u201cCommercial Excess Liability Insurance Policy\u201d to \u201cT.A. Loving Company.\u201d The BAP provided UIM coverage limits and bodily injury liability limits of $1,000,000 per accident. The excess liability policy provided a $20,000,000 limit of liability for bodily injury for any one occurrence arising out of third-party liability claims made against Loving in excess of the underlying limits. The excess liability policy referenced the BAP as the underlying insurance.\nOn 8 July 1994, Amos H. Bryant arid Daryell Carlisle were killed and Norman Johnson, Jr., and William T. Parker were injured when a flatbed truck, owned by Francisco Vasquez and driven by Javier Luna, collided with a pickup truck owned by T.A. Loving, Inc., and driven by Carlisle, a Loving employee. Bryant, Johnson, and Parker were also Loving employees. Tyvolia Faison, administratrix of Carlisle\u2019s estate; Virginia Lassiter, administratrix of Bryant\u2019s estate; Johnson; and Parker (\u201cclaimants\u201d) received $250,000 of primary liability coverage from plaintiff Progressive American Insurance Company (\u201cProgressive American\u201d), the liability insurer for Vasquez.\nOn 1 June 1995, Progressive American filed this action seeking a declaratory judgment that it had no obligation to defendants, under a policy issued to Vasquez by Progressive American which purported to cover the flatbed truck, with respect to any injuries or damages sustained in the accident. Defendant Aetna Casualty & Surety Company (\u201cAetna\u201d) filed an answer and cross-claim for declaratory judgment requesting, in part, a declaration that the excess liability policy issued by Aetna did not provide UM or UIM coverage above or in addition to that provided by the underlying auto policy.\nAetna subsequently filed a motion for summary judgment, which was heard at the 21 February 1997 session of Superior Court, Wake County. Although the trial court, in its \u201cMemorandum Decision\u201d of 4 March 1997 and its subsequent order of 3 April 1997, granted Aetna\u2019s motion for summary judgment, Aetna disagreed with that portion of the trial court\u2019s order regarding UIM coverage under the excess liability policy as set forth in the following conclusions of law:\n2. The Aetna Business Auto Coverage Policy, number 25 FJ 1078005 CCA, provides One Million Dollars ($1,000,000.00) in underinsured motorist coverage for the aggregate of all claims and all claimants seeking recovery for wrongful death or personal injury arising out of a single incident. Under this policy, the maximum obligation of Aetna is a total of One Million Dollars ($1,000,000.00), reduced by the amount of primary carrier liability coverage paid by Progressive American Insurance Company, which amount is Two Hundred Fifty Thousand Dollars ($250,000.00). The net amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) is further reduced by the aggregate amounts paid or payable under any workers\u2019 compensation policy to all claimants.\n3. The Commercial Excess Liability Policy, Number 025 XS 23999348 CCA (the umbrella policy), provides additional underinsured motorist coverage, in addition to that provided in the auto coverage policy; however, the Court rules that such additional coverage is limited to One Million Dollars ($1,000,000.00) of excess coverage for underinsured motorist liability incurred, above the initial One Million Dollars ($1,000,000.00) coverage in the auto policy. This One Million Dollars ($1,000,000.00) limit is in the aggregate for all claims and all claimants; however, it is not reduced by any workers\u2019 compensation payments made to claimants.\nAetna and the claimant-defendants appealed the trial court\u2019s decision to the Court of Appeals.\nThe Court of Appeals, in a unanimous decision, reversed that part of the trial court\u2019s order limiting the level of UIM coverage under the excess liability policy to $1,000,000. Instead, the Court of Appeals held \u201cthat the umbrella policy [excess liability policy] provides UIM coverage in the amount of $20,000,000.00 per accident.\u201d Progressive Am. Ins. Co. v. Vasquez, 129 N.C. App. 742, 748, 502 S.E.2d 10, 15 (1998). We allowed Aetna\u2019s petition for discretionary review as to this issue.\nClaimants present two arguments as to why the Court of Appeals was correct in holding that the excess liability policy was required to offer UM/UIM coverage. First, they contend that the excess liability policy meets the statutory requirements of N.C.G.S. \u00a7 20-279.21. In essence, their argument is that N.C.G.S. 20-279.21(b)(3) refers to a \u201cpolicy of bodily injury liability insurance,\u201d which constitutes a broader category of coverage than a motor vehicle liability policy. Thus, they argue, the excess liability policy was a \u201cpolicy of bodily injury liability insurance,\u201d and therefore, UM and UIM coverage was required to be offered. Secondly, they contend that this Court\u2019s decision in Isenhour v. Universal Underwriters Ins. Co., 341 N.C. 597, 461 S.E.2d 317 (1995), mandates such a conclusion. For the reasons that follow, we disagree with claimants\u2019 position and, accordingly, reverse the Court of Appeals as to this issue.\nWe begin our discussion with a brief review of the history of the statute in question. The main statutory provisions controlling UM and UIM insurance in North Carolina are codified as subdivisions (b)(3) and (b)(4), respectively, of N.C.G.S. \u00a7 20-279.21. The UM provision, (b)(3), was first adopted by the General Assembly in 1961, and the UIM provision, (b)(4), was adopted in 1979. Both subdivisions have been amended several times over the years.\nThe purposes behind the original enactments are clear. \u201cOur uninsured motorist statute was enacted by the General Assembly as a result of public concern over the increasingly important problem arising from property damage, personal injury, and death inflicted by motorists who are uninsured and financially irresponsible.\u201d Moore v. Hartford Fire Ins. Co. Group, 270 N.C. 532, 535, 155 S.E.2d 128, 130 (1967). Likewise, the UIM addition to the statute was passed to address circumstances where \u201c \u2018the tortfeasor has insurance, but his [or her] coverage is in an amount insufficient to compensate the injured party for his full damages.\u2019 \u201d Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 189, 420 S.E. 2d 124, 127 (1992) (quoting James E. Snyder, Jr., North Carolina Automobile Insurance Law \u00a7 30-1 (1988)). \u201cUnder North Carolina law, an insured may purchase UM coverage alone or UM and UIM coverage in combination, but he [or she] may not purchase UIM coverage by itself.\u201d George L. Simpson III, North Carolina Uninsured and Underinsured Motorist Insurance xvii (1998) [hereinafter N. C. UM and UIM Insurance].\nN.C.G.S. \u00a7 20-279.21, which encompasses the UM and UIM provisions, is titled \u201c \u2018Motor vehicle liability policy\u2019 defined\u201d and begins with subsection (a), which provides that in North Carolina, insurers may issue two kinds of motor vehicle liability policies: an \u201cowner\u2019s policy\u201d or an \u201coperator\u2019s policy.\u201d The requirements of these two types of policies are substantially different.\nWhile not defined in the statute, an \u201cowner\u2019s policy\u201d is a motor vehicle liability policy that insures \u201cthe holder against legal liability for injuries to others arising out of the ownership, use or operation of a motor vehicle owned by him [or her].\u201d Howell v. Travelers Indem. Co., 237 N.C. 227, 229, 74 S.E.2d 610, 612 (1953). The requirements for an owner\u2019s policy are set forth in subsection (b). \u201c[Subsection] (b) requires that an owner\u2019s policy designate the particular vehicles it insures and that it provide bodily injury and property damage liability coverage to the named insured and certain other persons while using [the] vehicles.\u201d N.C. UM and UIM Insurance at 103.\nIn 1961, the General Assembly enacted chapter 640 of the Session Laws, titled: \u201cAn Act to Amend G.S. \u00a7 20-279.21 Defining Motor Vehicle Liability Insurance Policy for Financial Responsibility Purposes so as to Include Protection Against Uninsured Motorists.\u201d The Act provided in part:\n(2) Striking out the period at the end of subdivision 2 [of N.C.G.S. \u00a7 20-279.21(b)] and inserting in lieu thereof the word and punctuation and\u201d; and\n(3) Adding thereto a new subdivision to be designated as subdivision 3 . . . .\nCh. 640, sec. 1(2), (3), 1961 N.C. Sess. Laws 831, 832. Semicolons are typically used to connect clauses that are closely related in thought. Here, the addition of the semicolon and of the word \u201cand\u201d between subdivision (2) and the new subdivision (3), as well as the title of the Act itself, unambiguously indicates that subdivision (3) is a part of the law that explains the definition of \u201cmotor vehicle liability insurance policy\u201d and is not an unrelated subdivision that presents \u201cbodily injury liability policy\u201d as a separate and distinct category.\nThe intent of the drafters of the 1961 amendment to N.C.G.S. \u00a7 20-279.21(b) appears to us to be unmistakable. Because subdivision (2) addresses both \u201cbodily injury to or death\u201d and \u201cinjury to or destruction of property,\u201d it follows that those two separate concerns are addressed in the new subdivision. Thus, subdivision (3) begins at the conclusion of subdivision (2) as follows:\n(2) . . . ; and\n(3) No policy of bodily injury liability insurance . . . shall be delivered or issued . . . unless coverage is provided therein ... in limits for bodily injury or death set forth in Subsection (c) of paragraph 20-279.5 . . . for the protection of persons . . . entitled to recover damages . . . because of bodily injury, sickness or disease, including death .... Such provisions shall include coverage for . . . persons . . . entitled to recover damages . . . because of injury to or destruction of the property of the insured, with a limit... of five thousand dollars ....\n(Emphasis added.) This language sets apart \u201cbodily liability insurance\u201d in order to mandate a different level of coverage than that set forth in the provisions that apply to property damage. Subdivision (3) is a continuation of the law applying to motor vehicle liability policies. There is no public policy rationale for the General Assembly to have created a new category of insurance policy for uninsured motorist coverage in (b)(3), and there is no indication that it meant to do so or that it did so.\nIn 1979, the General Assembly enacted chapter 675, titled, \u201cAn Act to Authorize the Issuance of Underinsured Motorist Coverage by Insurers at the Written Request of Insureds.\u201d A new subdivision (4) was added to N.C.G.S. \u00a7 20-279.21(b), which provided in part:\n(4) In addition to the coverages set forth in subdivisions (1) through (3) of this subsection, at the written request of the insured, shall provide for underinsured motorist insurance coverage to be used with policies affording uninsured motorist at limits in excess of the limits prescribed by the applicable financial responsibility law pursuant to this section ....\nCh. 675, sec. 1, 1979 N.C. Sess. Laws 720, 720-21.\nA 1992 amendment to (b)(4) provided that\n[i]f the named insured does not reject underinsured motorist coverage and does not select different coverage limits, the amount of underinsured motorist coverage shall be equal to the higher limit of bodily injury liability coverage for any one vehicle in the policy.\nAct of July 2, 1992, ch. 835, sec. 9, 1991 N.C. Sess. Laws 322, 331, 332 (clarifying the uninsured and underinsured motorists law). As we stated in Isenhour v. Universal Underwriters Ins. Co.,\n[w]hen a statute is applicable to the terms of an insurance policy, the provisions of the statute become a part of the policy, as if written into it. If the terms of the statute and the policy conflict, the statute prevails.... Under N.C.G.S. \u00a7 20-279.21(b)(4), the UIM coverage is the same as the policy limits for automobile liability unless the insured has rejected such insurance or selected a different limit, and this rejection or selection must be in writing.\n341 N.C. at 60.5, 461 S.E.2d at 322. Since the excess liability policy is silent as to UIM coverage, claimants contend that the Financial Responsibility Act incorporates the requirement into the excess policy by operation of law.\nIn summary as to this argument, we conclude that subdivision (3) requires UM coverage in a motor vehicle liability policy under certain circumstances and sets specific limits on the amounts of coverage in the two component parts of the motor vehicle liability policy: one for bodily injury and one for property damage. Thus, we find no basis for claimants\u2019 argument that the phrase \u201cpolicy of bodily injury liability insurance\u201d in subdivision (3) denotes a liability policy, more expansive than a \u201cmotor vehicle liability policy,\u201d into which the requirements of the Financial Responsibility Act as set forth in N.C.G.S. \u00a7 20-279.21(b) are incorporated by operation of law.\nUnder N.C.G.S. \u00a7 20-279.21(g),\n[a]ny policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess for additional coverage shall not be subject to the provisions of this Article. With respect to a policy which grants such excess or additional coverage the term \u201cmotor vehicle liability policy\u201d shall apply only to that part of the coverage which is required by this section.\nN.C.G.S. \u00a7 20-279.21(g) (Supp. 1998). While N.C.G.S. \u00a7 20-279.21(g) refers to a single policy as opposed to separate and distinct policies, it is indicative of legislative intent to exempt excess coverage from the requirements of the Financial Responsibility Act. Furthermore, N.C.G.S. \u00a7 58-3-152, effective 14 August 1997, specifically allows insurers to exclude UIM coverage from umbrella and excess liability policies, which suggests that the legislature did not intend to mandate UIM coverage in separate umbrella or excess liability policies.\nThus, claimants\u2019 argument that the separate excess liability policy need not be a motor vehicle liability policy as defined and delineated by N.C.G.S. \u00a7 20-279.21 must fail. Under N.C.G.S. \u00a7 20-279.21(a), a \u201cmotor vehicle policy\u201d of liability insurance must be \u201ccertified as provided in G.S. 20-279.19 or 20-279.20 as proof of financial responsibility.\u201d Here, the excess liability policy in question does not meet that requirement and, therefore, is not required to offer the insured UM and UIM coverage pursuant to N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4).\nWe note that claimants contend that we should not consider the argument that the excess liability policy does not meet the requirements of a motor vehicle liability policy because Aetna failed to raise this issue below. We disagree in that Aetna\u2019s first assignment of error from the trial court\u2019s order is that the trial court erred in determining that the excess liability policy provided UIM coverage as a matter of law. The only statutory grounds for requiring UM/UIM coverage is N.C.G.S. \u00a7 20-279.21 dealing with motor vehicle liability policies. We conclude that this issue is properly before us.\nThe claimants also rely, as did the Court of Appeals, on our decision in Isenhour v. Universal Underwriters Ins. Co. to support their contention that the Financial Responsibility Act requires UIM coverage in excess liability policies. The specific issue we addressed in Isenhour was \u201c[w]hether a multiple-coverage fleet insurance policy which includes umbrella coverage must offer UIM coverage equal to the liability limits under its umbrella coverage section.\u201d 341 N.C. at 603, 461 S.E.2d at 320. In Isenhour, the vehicle plaintiff was driving when the accident occurred was covered by a multiple-coverage fleet insurance policy that included umbrella coverage. It was purchased by his employer and issued by defendant Universal Underwriters Insurance Company. Defendant argued that the underlying policy and the umbrella policy were separate and distinct policies and that the umbrella component of the policy did not apply to plaintiffs\u2019 claim. We concluded that because the umbrella section of the policy provided liability coverage in the amount of $2,000,000, the UIM coverage offered had to be equal to the total amount of liability coverage offered as was then required under N.C.G.S. \u00a7 20-279.21. Id. at 606, 461 S.E.2d at 322.\nThus, the issue addressed in Isenhour was how much UIM insurance was available under the 1992 version of N.C.G.S. \u00a7 20-279.21, not whether a separate and distinct policy of excess liability must also offer UM/UIM coverage. Where there are separate and distinct underlying and excess liability policies, the legislature\u2019s policy of providing some compensation to innocent victims who have been injured by financially irresponsible motorists is satisfied by requiring the underlying, primary policy to provide UIM coverage \u201cequal to the highest limit of bodily injury . . . liability coverage for any one vehicle in the policy,\u201d where the insured has neither rejected UIM coverage nor selected a different coverage limit in the motor vehicle liability policy. While we are aware that, in deciding Isenhour, this Court\u2019s decision was \u201caided\u201d by Krstich v. United Servs. Auto. Ass\u2019n, 776 E Supp. 1225 (N.D. Ohio 1991), in which there were also separate underlying and excess liability policies, Krstich is a decision rendered by a federal court and is not dispositive here. We also note that Krstich was decided under Ohio law and that state\u2019s applicable statute. The court in Krstich in dicta did, however, continue by analyzing North Carolina law. Needless to say, we disagree with that court\u2019s ultimate analysis.\nWe do not find that N.C.G.S. \u00a7 20-279.21, Isenhour, or public policy requires that an excess liability policy offer separate UM/UIM coverage in addition to what is provided by the underlying policy where there are two separate policies: an underlying, primary policy required by law under the Financial Responsibility Act and an excess liability policy voluntarily purchased by the insured to provide further protection from liability for the insured.\nWhere there are separate and distinct excess liability and underlying policies, UIM coverage is not written into the excess liability policy by operation of law and exists only if it is provided by the contractual terms of the excess policy. Here, the excess liability policy makes no reference to providing UIM coverage. As the terms of the excess liability policy itself do not provide UIM benefits, and the Financial Responsibility Act is not applicable to the excess liability policy, claimants cannot prevail on this issue.\nWe now turn our attention to issues raised in claimants\u2019 conditional petitions for discretionary review. In addition to the $250,000 of primary liability coverage claimants received from plaintiff Progressive American Insurance Company, claimants all received workers\u2019 compensation benefits under a workers\u2019 compensation policy issued by Aetna to T.A. Loving, Inc.\nIn granting Aetna\u2019s motion for summary judgment, the trial court concluded that Aetna\u2019s maximum UIM liability under the BAP is $1,000,000 reduced by the amount of primary carrier liability coverage paid by plaintiff and the aggregate amounts paid or payable to all claimants under any workers\u2019 compensation policy. The Court of Appeals affirmed the trial court\u2019s holding that the BAP provides $1,000,000 per accident reduced by the $250,000 paid by Progressive American and the trial court\u2019s stacking of the claimants\u2019 individual workers\u2019 compensation benefits in calculating the reduction to the amount payable under the BAP.\nIn their appeal, claimants argue that the BAP should be construed to provide a UIM coverage limit of $1,000,000 per claimant, as opposed to per accident, and that workers\u2019 compensation offsets should be deducted from each individual claim, not stacked against the total UIM coverage provided by the BAP.\nN.C.G.S. \u00a7 20-279.21(e) provides that a motor vehicle policy \u201cneed not insure against loss from any liability for which benefits are in whole or in part either payable or required to be provided under any worker\u2019s compensation law.\u201d The terms of the BAP contain the following limit of liability provision:\nD. LIMIT OF INSURANCE\n2. Any amount payable under this coverage shall be reduced by:\na. All sums paid or payable under any workers\u2019 compensation, disability benefits or similar law exclusive of nonoccupational disability benefits.\nAs we noted in Manning v. Fletcher, 324 N.C. 513, 517, 379 S.E.2d 854, 856 (1989), \u201c[t]wo public policies are inherent in N.C.G.S. \u00a7 20-279.21(e). First, the section relieves the employer of the burden of paying double premiums, and second, the section denies the windfall of a double recovery to the employee.\u201d\nClaimants argue that the language of N.C.G.S. \u00a7 20-279.21(b)(4) mandates that the BAP\u2019s UIM coverage limit of $1,000,000 be provided per claimant, as opposed' to per accident. To bolster their contention that the language of the statute mandates that UIM be provided per claimant, claimants cite the following portion of N.C.G.S. \u00a7 20-279.21(b)(4):\nUnderinsured motorists coverage is deemed to apply to the first dollar of an underinsured motorists coverage claim beyond amounts paid to the claimant under the exhausted liability policy.\nIn any event, the limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident.\nN.C.G.S. \u00a7 20-279.21(b)(4), paras. 1, 2 (Supp. 1998). The language of (b)(3) sets a $1,000,000 cap for \u201cthe 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 We do not read (b)(3) or (b)(4) as requiring UIM coverage to be provided per claimant.\nAs Aetna notes, in Aills v. Nationwide Mut. Ins. Co., 88 N.C. App. 595, 363 S.E.2d 880 (1988), the Court of Appeals upheld a similar limiting provision. The court stated, \u201c[w]e construe the policy\u2019s \u2018each accident\u2019 provision to mean that $100,000 is the outer aggregate limit of defendant\u2019s exposure per accident (should there be multiple claims).\u201d Id. at 597-98, 363 S.E.2d at 882. Here, as the Court of Appeals stated, \u201c[t]he BAP explicitly, by its terms, provides that its coverage applies on a per accident basis.\u201d Progressive Am. Ins. Co., 129 N.C. App. at 749, 502 S.E.2d at 14. Neither N.C.G.S. \u00a7 20-279.21(b)(3) nor (b)(4) precludes application of UIM coverage on a per-accident basis.\nWe hold that the Court of Appeals did not err in concluding that the BAP\u2019s $1,000,000 UIM coverage limit applies per accident, as opposed to per claimant. We also hold that the Court of Appeals did not err in concluding that \u201c[t]he policy is clear and unambiguous that any amount payable under the BAP is reduced by all worker\u2019s compensation benefits paid or payable for the accident and by the amount paid by the tortfeasor\u2019s liability carrier.\u201d Id. at 750, 502 S.E.2d at 15 (emphasis added).\nIn conclusion, for the reasons stated herein, we affirm the Court of Appeals with respect to its findings that the UIM coverage provided by the BAP applies per accident and is reduced by the aggregate of workers\u2019 compensation benefits paid or payable to all claimants for the accident and the $250,000 paid to claimants by Progressive American. However, because we conclude that the Financial Responsibility Act is not applicable to the excess liability policy, and the language of the excess liability policy does not by its terms provide UIM coverage, we reverse the Court of Appeals\u2019 holding that the excess liability policy provides UIM coverage and remand to that court for further remand to the Superior Court, Wake County, for proceedings consistent with this opinion.\nAFFIRMED IN PART AND REVERSED AND REMANDED IN PART.", "type": "majority", "author": "ORR, Justice." }, { "text": "Justice Frye\ndissenting.\nIn this case, the majority concludes that because the commercial excess liability policy in question is not a \u201cmotor vehicle liability policy\u201d as defined by N.C.G.S. \u00a7 20-279.21(a), it is not required to offer the insured uninsured motorist (UM) and underinsured motorist (UIM) coverage pursuant to N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4). I respectfully dissent from the majority\u2019s decision on this issue.\nOnce again this Court is called upon to interpret a complex and difficult statute, N.C.G.S. \u00a7 20-279.21 (Supp. 1998). We must decide whether, in this case, the statute requires the insurer to provide UIM coverage under subdivision (b)(4) of the statute. However, in order to do so, we must first determine whether the policy at issue was required to provide UM coverage, because N.C.G.S. \u00a7 20-279.21(b)(4) requires that policies insuring automobile liability that are written at limits exceeding the minimum statutory liability limits and that afford UM coverage must provide UIM coverage unless rejected by a named insured. See Sutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 263, 382 S.E.2d 759, 762 (1989).\nEffective 14 August 1997, the General Assembly amended chapter 58 of the North Carolina General Statutes to permit insurers to limit or exclude UM and UIM coverage with respect to insurance policies providing excess liability coverage. See N.C.G.S. \u00a7 58-3-152 (Supp. 1998). Thus, the issue presented by this case is whether a commercial excess liability policy, which covers bodily injury arising out of the ownership, maintenance, or use of a motor vehicle, issued prior to the effective date of N.C.G.S. \u00a7 58-3-152, provides UIM coverage despite the policy\u2019s silence as to such coverage. While the majority has set forth one reasonable interpretation of N.C.G.S. \u00a7 20-279.21, it is not writing on a clean slate. This Court has already spoken to the interpretation of N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) on a closely related, if not identical, issue. I would hold that our interpretation of N.C.G.S. \u00a7 20-279.21(b)(4) articulated in Isenhour v. Universal Underwriters Ins. Co., 341 N.C. 597, 461 S.E.2d 317 (1995), controls this question and that the commercial excess liability policy at issue in this case does provide UIM coverage.\nIn Isenhour v. Universal Underwriters Ins. Co., we addressed the question whether a multiple-coverage fleet insurance policy that included umbrella coverage was required to offer UIM coverage equal to the liability limits under its umbrella coverage section. Id. In a unanimous decision, we held that, under the version of N.C.G.S. \u00a7 20-279.21(b) applicable at that time, the insurer was required to offer the insured UIM coverage in an amount equal to the automobile bodily injury coverage provided in the umbrella coverage section of the policy. Id. at 605, 461 S.E.2d at 322.\nIn reaching that conclusion in Isenhour, we examined the conditions under which a policyholder is entitled to UIM coverage. We first noted the analysis of the decision of Krstich v. United Servs. Auto. Ass\u2019n, 776 F. Supp. 1225 (N.D. Ohio 1991), which determined that \u201c \u2018a \u201cpolicy of bodily injury liability insurance\u201d which covers \u201cliability arising out of the ownership, maintenance, or use\u201d of a motor vehicle\u2019 \u201d must provide UM coverage. Isenhour, 341 N.C. at 604, 461 S.E.2d at 321 (quoting Krstich, 776 F. Supp. at 1234 (applying North Carolina law)). Pursuant to N.C.G.S. \u00a7 20-279.21(b)(4), such a policy must provide UIM coverage if the policyholder has elected liability coverage above the statutory minimums. See id.-, see also Sutton, 325 N.C. at 263, 382 S.E.2d at 762. In addition, the policyholder must not have executed a rejection of UIM coverage. Isenhour, 341 N.C. at 605, 461 S.E.2d at 322; see also N.C.G.S. \u00a7 20-279.21(b)(4). Because the statutory prerequisites were met, we held that the defendant-insurer in Isenhour was required to have offered the insured UIM coverage under the umbrella coverage section of the fleet policy in an amount equal to the limit of automobile bodily injury liability coverage provided by the insured\u2019s umbrella coverage.\nThe rationale of Isenhour is that subdivision (b)(3) requires an excess liability policy to provide UM coverage and that, when read together, subdivisions (b)(3) and (b)(4) mandate UIM coverage. While the umbrella coverage at issue in Isenhour was part of a multicoverage policy, we adopted the rationale of Krstich, a case which very clearly involved separate underlying and excess insurance policies, as a basis for our decision. As noted by the majority, Krstich is a federal case decided under Ohio law and thus not binding on this Court; however, the Krstich court said that the result would be the same under both the Ohio statute and the North Carolina statute. This Court did not reject that assertion in Isenhour and thus approved an interpretation of N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) that would require policies of bodily injury liability insurance which cover liability arising out of the ownership, maintenance, or use of a motor vehicle to provide UM coverage and UIM coverage if the other statutory prerequisites are met. Our analysis in Isenhour was not dependent upon the policy satisfying the definition of \u201cmotor vehicle liability policy\u201d contained in N.C.G.S. \u00a7 20-279.21(a).\nIn Isenhour, this Court gave an interpretation to N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) that, if followed in this case, would require an excess liability policy to provide UIM coverage. The General Assembly has not rejected the interpretation given to N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) in the Isenhour decision. Instead, the General Assembly amended chapter 58 of the North Carolina General Statutes, effective 14 August 1997, so as to permit insurers \u201cto limit or exclude UM and UIM coverage with respect to insurance policies providing excess liability coverage.\u201d N.C.G.S. \u00a7 58-3-152. However, the enactment of N.C.G.S. \u00a7 58-3-152 did not affect the interpretation of N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) adopted in Isenhour.\nFinally, and perhaps most important, the interpretation of N.C.G.S. \u00a7 20-279.21(b)(4) given in Isenhour fulfills the \u201cavowed purpose of the Financial Responsibility Act, of which N.C.G.S. \u00a7 20-279.21(b)(4) is a part, [which] is to compensate the innocent victims of financially irresponsible motorists.\u201d Sutton, 325 N.C. at 265, 382 S.E.2d at 763. The majority\u2019s construction ignores our longstanding tenet that, as a remedial statute, the provisions of N.C.G.S. \u00a7 20-279.21(b)(4) should be \u201cliberally construed so that the beneficial purpose intended by its enactment may be accomplished.\u201d Id.\nThe umbrella policy issued by Aetna in this case provides bodily injury liability insurance covering liability arising out of the ownership, maintenance, or use of a motor vehicle. Therefore, pursuant to N.C.G.S. \u00a7 20-279.21(b)(3) as interpreted by Isenhour, the excess liability policy would be required to provide UM coverage, and under the precedent of Isenhour, I would hold that the policy must also provide UIM coverage pursuant to N.C.G.S. \u00a7 20-279.21(b)(4).\nJustice Martin joins in this dissenting opinion.", "type": "dissent", "author": "Justice Frye" } ], "attorneys": [ "Barnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant and -appellee Johnson; Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for defendant-appellant and -appellee Faison; Law Offices of Jonathan S. Williams, by Jonathan S. Williams, for defendant-appellant and -appellee Parker; Whitley, Jenkins & Riddle, by Eugene G. Jenkins, for defendant-appellant and -appellee Lassiter.", "Womble Carlyle Sandridge & Rice, PLLG, by Richard T. Rice and Garth A. Gersten, for defendant-appellant and -appellee Aetna Casualty and Surety Company.", "Yates, McLamb & Weyher, L.L.P, by Andrew A. Vanore, III, for defendant-appellant and -appellee Aetna Casualty and Surety Company.", "Battle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr., on behalf of the North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation v. FRANCISCO VASQUEZ, JAVIER LUNA, TYVOLIA FAISON, Administrator of the Estate of Daryell Glen Carlisle, VIRGINIA LASSITER, Administrator of the Estate of Amos H. Bryant, NORMAN JOHNSON, JR., WILLIAM T. PARKER, T.A. LOVING, INC., a Corporation, and AETNA CASUALTY & SURETY COMPANY, a Corporation\nNo. 286PA98\n(Filed 9 June 1999)\n1. Insurance\u2014 excess liability policy \u2014 UIM coverage not required\nThe Financial Responsibility Act does not require a commercial excess liability policy to offer separate uninsured and under-insured motorist coverage pursuant to N.C.G.S. \u00a7 20-279.21(b)(3) and (b)(4) in addition to what is offered in the underlying business automobile policy. Where there are separate and distinct excess liability and underlying policies, UIM coverage is not written into the excess liability policy by operation of law and only exists if it is provided by the contractual terms of the excess policy.\n2. Insurance\u2014 business automobile policy \u2014 UIM coverage per accident \u2014 reduction for workers\u2019 compensation and tortfeasor\u2019s liability payment\nA business automobile policy\u2019s UIM coverage limit of $1,000,000 applied per accident rather than per claimant. Further, the insurer\u2019s maximum UIM liability under the policy was properly reduced by the aggregate of workers\u2019 compensation benefits paid or payable to all claimants for the accident and by the amount paid to claimants by the tortfeasor\u2019s liability carrier. N.C.G.S. \u00a7 20-279.21(b)(3), (b)(4), and (e).\nJustice Frye dissenting.\nJustice Martin joins in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 129 N.C. App. 742, 502 S.E.2d 10 (1998), affirming in part and reversing in part an order entered by Stephens (Donald W), J., on 3 April 1997 in Superior Court, Wake County. On 5 November 1998, the Supreme Court allowed conditional petitions for discretionary review as to additional issues. Heard in the Supreme Court 8 March 1999.\nBarnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant and -appellee Johnson; Mast, Schulz, Mast, Mills & Stem, P.A., by David F. Mills, for defendant-appellant and -appellee Faison; Law Offices of Jonathan S. Williams, by Jonathan S. Williams, for defendant-appellant and -appellee Parker; Whitley, Jenkins & Riddle, by Eugene G. Jenkins, for defendant-appellant and -appellee Lassiter.\nWomble Carlyle Sandridge & Rice, PLLG, by Richard T. Rice and Garth A. Gersten, for defendant-appellant and -appellee Aetna Casualty and Surety Company.\nYates, McLamb & Weyher, L.L.P, by Andrew A. Vanore, III, for defendant-appellant and -appellee Aetna Casualty and Surety Company.\nBattle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr., on behalf of the North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0386-01", "first_page_order": 438, "last_page_order": 452 }