An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-539


Filed: 15 April 2003


v .                             Wayne County
                                No. 01 CVS 959

    Appeal by defendant from judgment filed 18 February 2002 by Judge Russell J. Lanier, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 11 March 2003.

    Thomas and Farris, P.A., by Kurt D. Schmidt, for plaintiff appellee.

    Thompson, Smyth & Cioffi, L.L.P., by Theodore B. Smyth, for defendant appellant.

    BRYANT, Judge.

    North Carolina Farm Bureau Mutual Insurance Company (defendant) appeals from a judgment filed 18 February 2002 declaring that an insurance policy (the business auto policy) issued by defendants provided liability coverage.
    On 9 April 2001, Jerry Keith Rowe (plaintiff) filed a declaratory judgment action seeking a declaration that the business auto policy extended coverage to Gerry Phillips, Jr. (Phillips, Jr.) along with his operation of a 1973 Ford F-150 pick-up truck (the pick-up truck). The undisputed facts of this case show plaintiff was injured in a collision involving his vehicle and thepick-up truck negligently operated by Phillips, Jr. The pick-up truck was owned by Phillips, Jr.'s father, Gerry Phillips, Sr. (Phillips, Sr.). Phillips, Jr. lived with Phillips, Sr. In the underlying tort action, the parties entered into an agreement whereby defendant agreed to pay the policy limits on an insurance policy insuring the pick-up truck. The parties further agreed plaintiff would receive an additional sum of money if it were determined the separate business auto policy provided additional liability coverage. The business auto policy was issued to Phillips, Sr. The declarations page of the business auto policy lists a single vehicle, a 1989 Gulf Stream Motor Home, as a “covered 'auto.'” Further, the business auto policy provides liability coverage for “damages because of 'bodily injury' or 'property damage' . . . caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'” Included in the policy is an endorsement, which states under a subheading entitled “CHANGES IN LIABILITY COVERAGE”:

            While any “auto” “you” own of the “private passenger type” is a covered      “auto” under LIABILITY COVERAGE:

            a.    The following is added to WHO IS AN INSURED:

                “Family members” are “insureds” for any covered “auto” “you” own of the “private passenger type”. . . .


    The issue is whether the business auto policy covering the motor home provides coverage for the pick-up truck under theendorsement.
    The exact endorsement at issue in this case was earlier construed by this Court in Drye v. Nationwide Mut. Ins. Co., 126 N.C. App. 811, 487 S.E.2d 148 (1997), on very similar factual grounds. In that case, the plaintiff was injured when his vehicle was struck by a second vehicle. Id. at 812, 487 S.E.2d at 148-49. The driver of the second vehicle was the son of the owner who also lived with his father. Id. at 812, 487 S.E.2d at 149. The owner of the second vehicle had a business auto policy that listed a different vehicle as the only covered “auto” and contained an identical endorsement as at issue in this case. Id. The Drye Court construed the policy in that case to provide coverage to the underlying accident based on the ambiguity caused by the endorsement language which stated “while any 'auto' you own of the 'private passenger type' is a covered 'auto' under liability coverage.” Id. at 814, 487 S.E.2d at 150. Based on this Court's analysis in Drye, we conclude the endorsement creates an ambiguity and, thus, the business auto policy must be construed liberally to provide coverage and against defendant. See id.; see also Woods v. Insurance Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978) (where meaning of words or effect of a provision is uncertain or capable of several reasonable interpretations, doubts will be resolved in favor of the insured).
    Defendant argues this case presents a different question than Drye because the vehicle listed on the declarations page in this case is not of the “private passenger type.” This assertion,however, does not cure the ambiguity created by the endorsement that is part of the business auto policy which seemingly extends coverage to “any 'auto' [Phillips, Sr.] own[s] of the 'private passenger type'” in addition to the vehicle listed in the declarations page. See Drye, 126 N.C. App. at 815, 487 S.E.2d at 150 (since this is an endorsement extending coverage, it must be construed liberally to provide coverage); see also N.C. Farm Bureau Mut. Ins. Co. v. Walton, 107 N.C. App. 207, 209, 418 S.E.2d 837, 839 (1992) (provisions extending coverage will be liberally construed so as to provide coverage). Furthermore, defendant does not contend the pick-up truck is not of the “private passenger type.” We thus conclude the business auto policy in this case provides liability coverage under the endorsement to the pick-up truck and Phillips, Jr., as a family member. Accordingly, we affirm the judgment of the trial court.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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