Harper v. Allstate Ins. Co., (94-66-2) 04/16/1996

NO. 9410SC66

NORTH CAROLINA COURT OF APPEALS

Filed: 16 April 1996

ALICE R. HARPER, Administratrix of the ESTATE OF WILLIAM P. HARPER, JR.,

v.

ALLSTATE INSURANCE COMPANY

    Appeal by defendant from judgment entered 13 December 1993 in Wake County Superior Court by Judge Coy E. Brewer, Jr. Heard in the Court of Appeals 29 September 1994. Reconsidered for the purpose of modifying earlier opinion.

    Smith & Holmes, P.C., by Robert E. Smith and Mary M. McHugh, for defendant-appellant.

    Edwards and Kirby, by David F. Kirby, for plaintiff-appellee.

    WYNN, Judge.

    On 6 December 1994, this Court issued an opinion affirming summary judgment for the plaintiff in a declaratory judgment action. Harper v. Allstate Ins. Co., 117 N.C. App. 302, 450 S.E.2d 759 (1994). On 9 February 1996, our Supreme Court vacated our opinion and directed that we reconsider it in the light of Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996). Harper v. Allstate Ins. Co., 342 N.C. 643, 466 S.E.2d 77 (1996). Having so reconsidered, we again reject defendant's argument that the family member exclusion in its policy excludes underinsured motorists (UIM) coverage for injuries sustained by the insured while occupying a vehicle owned by the insured which is not listed in the policy. In Mabe, our Supreme Court affirmed this Court's rejection of the "owned vehicle" or "family member" exclusion with regard to UIM coverage. Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996). Accordingly, the trial court's entry of summary judgment for the plaintiff is,

    Affirmed.

    Chief Judge ARNOLD and Judge JOHNSON concur.

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