1. Insurance--automobile--UIM coverage--person under parked car
at time of collision--person insured
The trial court did not err by concluding that the decedent
(Dutch) was insured under the UIM provisions of a USAA policy
where the vehicle Dutch was driving (the Bullock vehicle, insured
by Harleysville) skidded into a ditch; Dutch solicited help from
a nearby residence and Clark drove his vehicle (insured by USAA)
to the scene, where he parked on the road while Dutch hooked a
chain to the vehicle he was driving and crawled under the Clark
vehicle to attach the other end of the chain; and a vehicle
driven by Fairley collided with both the Bullock and Clark
vehicles and ran over Dutch, causing his death. Under the USAA
policy definitions, Dutch was either in contact with the Clark
vehicle or in the process of attaching the chain and was thus
“upon” or “getting on” the vehicle. Moreover, he would qualify as
the “person insured” under the Motor Vehicle Safety and Financial
Responsibility Act if he was “using” the vehicle at the time of
the accident. Finally, although USAA contends that Dutch was a
Class Two insured who is insured only while occupying an insured
vehicle, case law makes clear that Class II persons insured may
recover when the insured vehicle is involved in the insured's
injuries.
2. Appeal and Error--presentation of issues--failure to assign
error challenge in brief
The question of whether the trial court erred by crediting
an amount paid by a tortfeasor solely to Harleysville rather than
sharing the credit upon the multiple UIM carriers was not
preserved for appellate review where appellant (USAA) did not
assign error to nor challenge in its brief the court's
characterization of the Harleysville policy as primary and the
USAA policy as excess. It is well established that the primary
provider of UIM coverage is entitled to the credit for the
liability coverage.
JOHN, Judge.
Defendant USAA General Indemnity Company (USAA) appeals the
trial court's declaratory judgment ruling that a policy of
insurance issued by USAA (the USAA policy) provided underinsured
motorists (UIM) coverage to Edward Malcolm Dutch (Dutch). We
affirm.
The parties stipulated to the following pertinent facts: On
17 February 1995, Dutch was operating an automobile titled in the
name of Dwayne Taylor and owned by Marvin F. Bullock d/b/a Laurel
Hill Auto Sales (the Bullock vehicle), with the permission of the
latter. While Dutch was driving, the Bullock vehicle skidded off
the road and into a ditch.
Dutch walked to the nearby residence of Howard Dean Clark
(Clark) to solicit help in removing the Bullock vehicle from the
ditch. Clark thereupon drove himself and Dutch in Clark's
automobile (the Clark vehicle) to the location of the Bullock
vehicle. Clark parked on the road, partially in the northbound
lane of travel and partially in the southbound lane of travel, and
left the engine running with both the lights and emergency flashersactivated as he and Dutch exited.
Dutch hooked a chain to the rear of the Bullock vehicle and
crawled under the Clark vehicle to attach the other end of the
chain. As he was doing so, and although Clark attempted to warn
the driver of the obstruction in the road, an automobile operated
by Michael Fairley (Fairley; the Fairley vehicle) collided with
both the Bullock and Clark vehicles and ran over Dutch, resulting
in his death.
At the time of the accident, the Bullock vehicle was insured
under a policy of insurance issued by defendant Harleysville Mutual
Insurance Company (Harleysville; the Harleysville policy), which
included UIM coverage with liability limits of $50,000.00 per
person. The Clark vehicle was insured under the USAA policy which
provided UIM coverage limits of $300,000.00 per person.
Plaintiff Suzette Alexis Dutch, executrix of Dutch's estate,
filed suit against Fairley alleging his negligence proximatelycaused Dutch's death. Pursuant to N.C.G.S. § 20-279.21(b)(4)
(1999), plaintiff gave notice of suit to USAA, Harleysville, and
Metropolitan Property & Casualty Insurance Company (Metropolitan),
the company which insured Fairley's vehicle. Upon order of the
court, Metropolitan was allowed to pay $50,000.00, the limits of
the bodily injury coverage under its policy with Fairley, to
plaintiff, and was relieved of further liability.
While her suit against Fairley was pending, plaintiff also
filed the instant declaratory judgment action against Harleysville
and USAA, seeking a ruling that the policies of each covering the
Bullock and Clark vehicles provided UIM coverage to Dutch.
Harleysville and USAA answered, generally denying their policies
provided such coverage.
The trial court entered judgment 16 March 1999, concluding
that (1) both the Harleysville and USAA policies provided UIM
coverage to Dutch; (2) the Harleysville policy was the “primary”
policy and the USAA policy the “excess” policy; (3) Harleysville,
as the primary policy carrier, was entitled to credit for the
$50,000.00 payment by Metropolitan; and, (4) “after the credit,
[Harleysville] provide[d] no coverage for [Dutch] for this
accident.” Essentially, the trial court's judgment rendered USAA
solely liable for damages in excess of $50,000.00 and up to its
policy limits of $300,000.00 which might be awarded plaintiff in
her action against Fairley.
USAA timely appealed, citing two assignments of error. USAA
first claims the trial court erred by concluding as a matter of lawthat Dutch was insured under UIM provisions of the USAA policy.
Alternatively, USAA argues that if Dutch indeed was covered by its
policy, then USAA was entitled to share in the $50,000.00
Metropolitan payment credit. We address each contention ad
seriatim.
[1]We first examine the USAA policy, bearing in mind that
provisions of insurance policies and
compulsory insurance statutes which extend
coverage must be construed liberally so as to
provide coverage, whenever possible by
reasonable construction.
State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534,
538, 350 S.E.2d 66, 68 (1986). USAA does not dispute that its
policy contained UIM coverage, but argues Dutch was not an insured
for purposes of the policy, which defined an “insured” as:
1. You or any family member.
2. Any other person occupying:
a. your covered auto; or
b. any other auto operated by you.
3. Any person for damages that person is
entitled to recover because of bodily injury
to which this coverage applies sustained by a
person listed in 1. or 2. above.
“You” referred to the “named insured,” in this case Clark.
The parties have stipulated that Dutch was not a family member
of Clark. Thus, Dutch was an insured under the USAA policy
definition only if he was “occupying” Clark's covered auto. USAA
points out that Dutch “had departed the Clark vehicle” to return to
the Bullock vehicle.
However, the USAA policy defined “[o]ccupying” as “in; upon;getting in, on,
out or off.” Although we agree Dutch was not “in”
or “getting in, . . . out or off” the Clark vehicle at the time of
the accident, we must consider whether he either was “getting . .
. on” or was actually “upon” the Clark vehicle at the moment of
impact. “Upon” is defined as “[o]n,” while “on” is defined as “[u]sed
to indicate contact with” or “[u]sed to indicate actual motion
toward.” American Heritage College Dictionary 1482, 953 (3d ed.
1997).
The parties stipulated Dutch had
crawl[ed] under the rear portion of the Clark
vehicle in order to attach the other end of
the chain to the Clark vehicle . . . .
At the time of the accident, therefore, Dutch was either in contact
with the Clark vehicle while attaching the chain and thus “upon” the
vehicle, or was in the process of attaching the chain and thus was
“getting . . . on” the Clark vehicle. In short, Dutch qualified as
an “insured” under the USAA policy definition.
We note also that the Motor Vehicle Safety and Financial
Responsibility Act (the Act), N.C.G.S. §§ 20-279.1 - 279.39, the
provisions of which “are written into every automobile insurance
policy,” Scales v. State Farm Mut. Automobile Ins. Co., 119 N.C.
App. 787, 788, 460 S.E.2d 201, 202 (1995), defines “persons insured”
as
the named insured and, while resident of the
same household, the spouse of any named
insured and relatives of either, while in a
motor vehicle or otherwise, and any person who
uses with the consent, expressed or implied,
of the named insured, the motor vehicle to
which the policy applies and a guest in themotor vehicle to which the policy applies or
the personal representative of any of the
above . . . .
N.C.G.S. § 20-279.21(b)(3) (1999); see Brown v. Truck Ins.
Exchange, 103 N.C. App. 59, 62, 404 S.E.2d 172, 174 (the UIM
statute, G.S. § 20-279.21(b)(4), “incorporates by reference the
definition of 'persons insured' that is found in” G.S. § 20-
279.21(b)(3)), disc. review denied, 329 N.C. 786, 408 S.E.2d 515
(1991). Accordingly, although Dutch was not the named insured nor
a member of the named insured's household, he would qualify as a
“person insured” under the Act for purposes of the USAA policy if
he “was 'using' the [insured] vehicle at the time of the accident.”
Falls v. N.C. Farm Bureau Mut. Ins. Co., 114 N.C. App. 203, 207,
441 S.E.2d 583, 585, disc. review denied, 337 N.C. 691, 448 S.E.2d
521 (1994).
In the context of the interpretation of policies of insurance,
this Court has “adopted the ordinary meaning of the word 'use,'”
Nationwide Mutual Ins. Co. v. Davis, 118 N.C. App. 494, 497, 455
S.E.2d 892, 894, disc. review denied, 341 N.C. 420, 461 S.E.2d 759
(1995); that is,
“to put into action or service[,] . . . to
carry out a purpose or action by means of[,
or] . . . [to] make instrumental to an end or
process . . . .” Webster's Third New
International Dictionary 2523-24 (1968). . . .
[T]he verb “use” “is general and indicates any
putting to service of a thing . . . .” Id. at
2524.
Leonard v. N.C. Farm Bureau Mut. Ins. Co., 104 N.C. App. 665, 671,411 S.E.2d 178, 181-82 (1991), rev'd on other grounds, 332
N.C.
656, 423 S.E.2d 71 (1992). Further, while
the test for determining whether an automobile
liability policy provides coverage for an
accident is not whether the automobile was a
proximate cause of the accident[, . . . there
must be] a causal connection between the use
of the automobile and the accident.
State Capital Ins., 318 N.C. at 539-40, 350 S.E.2d at 69.
In addition, review of applicable decisions reflects that our
courts “have recognized that liberally construed, the term 'use'
may refer to more than the actual driving or operation of a
vehicle.” Davis, 118 N.C. App. at 497, 455 S.E.2d at 894. Thus a
person “uses” a vehicle under the Act when (1) loading or unloading
the vehicle, Casualty Co. v. Insurance Co., 16 N.C. App. 194, 199,
192 S.E.2d 113, 118, cert. denied, 282 N.C. 425, 192 S.E.2d 840
(1972); (2) pushing a disabled vehicle onto the shoulder of the
road, Whisnant v. Insurance Co., 264 N.C. 303, 308, 141 S.E.2d 502,
506 (1965); (3) helping the vehicle owner change a flat tire,
Leonard, 104 N.C. App. at 672, 411 S.E.2d at 182; and, (4) walking
on the shoulder of the road in search of help for a disabled
vehicle, Falls, 114 N.C. App. at 208, 441 S.E.2d at 585. Further,
a police officer who leaves his vehicle with the engine running,
the warning lights activated, and the police radio engaged, in
order to direct traffic at the location of a malfunctioning traffic
signal, is also “using” his vehicle for purposes of the Act. Maring
v. Hartford Casualty Ins. Co., 126 N.C. App. 201, 205, 484 S.E.2d417, 420 (1997).
Liberally construing “use” and guided by previous decisions,
we conclude that under the circumstances sub judice Dutch was
“using” the Clark vehicle for purposes of the Act, in that he was
“'put[ting the Clark vehicle] into action or service . . . to carry
out a purpose,'” Leonard, 104 N.C. App. at 671, 411 S.E.2d at 181,
i.e., removal of the Bullock vehicle from the ditch. Moreover, as
in Maring, 126 N.C. App. at 205, 484 S.E.2d at 420, the emergency
lights on the Clark vehicle had been activated such that Clark and
Dutch were also “using” the vehicle to alert passing motorists to
the obstruction in the road. Finally, the requisite causal
connection between “use” of the Clark vehicle and the accident, see
State Capital Ins., 318 N.C. at 540, 350 S.E.2d at 69, was also
satisfied in that the Clark vehicle, partially located in Fairley's
lane of travel, was struck by the Fairley vehicle as it also
collided with the Bullock vehicle and ran over Dutch. In short,
Dutch not only qualified as an insured under the express terms of
the USAA policy, but also under terms of the Act incorporated by
reference into such policy. See Brown, 103 N.C. App. at 62, 404
S.E.2d at 174.
Notwithstanding, USAA argues strenuously that Dutch “[wa]s a
Class Two insured who is an insured only while occupying an insured
vehicle.” USAA misreads our case law.
G.S. § 20-279.21(b)(3) establishes two “classes” of
“persons insured”:
(1) the named insured and, while resident of
the same household, the spouse of the named
insured and relatives of either and (2) any
person who uses with the consent, express or
implied, of the named insured, the insured
vehicle, and a guest in such vehicle.
Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 554,
340 S.E.2d 127, 129-30, disc. review denied, 316 N.C. 731, 345
S.E.2d 387 (1986). It is not disputed that Dutch fell into the
second category.
However, rather than restricting Class II “persons insured,”
id., to UIM coverage only if actually occupying a vehicle as USAA
suggests, our case law makes clear such individuals may recover
only when the insured vehicle is involved in
the insured's injuries,
Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 143, 400 S.E.2d
44, 47 (1991).
The foregoing requirement is broadly construed; a Class II
insured walking from a disabled vehicle to summon help has been
deemed a “person insured” under the statute. See Falls, 114 N.C.
App. at 208, 441 S.E.2d at 585. Moreover, given that the Fairley
vehicle ran over Dutch as it was colliding with the Clark vehicle,
the insured vehicle was involved in Dutch's injuries. See State
Capital Ins., 318 N.C. at 540, 350 S.E.2d at 69. In sum, USAA's
first assignment of error is unfounded.
Before proceeding, we briefly address the argument interjected
by Harleysville that its policy “does not provide UIM benefitsbecause Harleysville's UIM coverage is not in excess of the Fairley
vehicle's liability coverage,” and because plaintiff should not be
allowed to “stack” the USAA and Harleysville policies. In this
context, we note Harleysville registered no appeal of the trial
court's judgment and failed to assign error to any portion thereof.
The foregoing issue raised by Harleysville thus has not been
preserved for appellate review. See N.C.R. App. P. 10(a) (“the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal”). We are
therefore bound by the trial court's express holding that both the
USAA and Harleysville policies provided UIM coverage to Dutch, as
well as by its implied holding that these policies may be stacked.
[2]In its second assignment of error, USAA claims the trial
court erroneously credited the $50,000.00 paid by Metropolitan
solely to Harleysville. USAA argues that “multiple UIM carriers
are to share the credit pro rata.” The trial court based its
decision upon the determination that the Harleysville policy was
“primary” and the USAA policy was “excess.”
Harleysville asserts USAA has failed to preserve this issue
for review in that USAA did not specifically assign error to the
foregoing portion of the trial court's judgment. See N.C.R. App.
P. 10(a). We agree.
Our review reveals that neither in USAA's assignments of error
nor in its appellate brief does it challenge the trial court's
characterization of the respective status of the two providers. USAA has thus waived assertion of that argument on appeal, and we
presume the court's findings and conclusions on the issue are
correct. See Saxon v. Smith, 125 N.C. App. 163, 169, 479 S.E.2d
788, 792 (1997).
It is well established that “the primary provider of UIM
coverage . . . is entitled to the credit for the liability
coverage.” Falls, 114 N.C. App. at 208, 441 S.E.2d at 586. In
light of the trial court's unchallenged determination of
Harleysville as primary provider and USAA as excess, the entire
credit was properly allocated to Harleysville, and USAA's final
assignment of error is unavailing.
Affirmed.
Judges LEWIS and EDMUNDS concur.
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