An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-877

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

PEGGY S. WILLIS, Individually and
PEGGY S. WILLIS, Administratrix
of the Estate of ROBERT L. WILLIS,
JR., for the Estate of ROBERT L.
WILLIS, JR.,
            Plaintiffs,

v .                         Guilford County
                            No. 02 CVS 9786
ALLSTATE INSURANCE COMPANY,
ROBERT A. WILLIAMS, Individually
and as agent for ALLSTATE
INSURANCE COMPANY and WILLIAMS
INSURANCE AND FINANCIAL SERVICES,
INC.,
            Defendants.

    Appeal by plaintiffs from judgment entered 8 December 2003 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 3 March 2005.

    Gray, Newell, Johnson & Blackmon, L.L.P., by Mark V.L. Gray, and Pinto, Coates, Kyre & Brown, PLLC, by Paul D. Coates, for plaintiff-appellant.

    Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by P.C. Barwick, Jr., and Kimberly A. Connor for defendant- appellee Allstate Insurance Company.

    Smith Law Offices, P.C., by Robert E. Smith, for defendant- appellee Robert A. Williams.

    TIMMONS-GOODSON, Judge.

    Peggy Willis (“plaintiff”) appeals a trial court order granting summary judgment for Allstate Insurance Company (“Allstate”) and Robert Williams (“Williams”) (collectively,“defendants”). For the reasons stated herein, we affirm the trial court's order.
    The factual and procedural history of this case is as follows: In 1996, plaintiff and her husband, Robert Willis (“Mr. Willis”) sought to supplement their existing Allstate automobile and homeowners insurance policies with an umbrella insurance policy in the amount of $1,000,000. The Willises wanted the new policy to cover liabilities arising from several rental properties and automobiles that they owned. Williams, an agent for Allstate, told the Willises that to qualify for a $1,000,000 umbrella policy, they would have to increase the limits for their automobile insurance policy from $50,000 per person and $100,000 per accident (“$50,000/100,000") to at least $100,000 per person and $300,000 per accident (“$100,000/300,000"). The umbrella policy provides that if the insured “fail[s] to maintain this Required Underlying Insurance, there will be no coverage or defense under this policy until the damages exceed the coverage and limit required for the exposure.” Allstate issued a $1,000,000 umbrella policy to the Willises but, due to a clerical error, the limit for their automobile insurance policy was not raised. The Willises continued to pay premiums for $50,000/100,000 automobile insurance coverage.
    On 17 October 1999, Mr. Willis was a passenger in plaintiff's automobile, which was being driven by Freddy Gowins (“Gowins”). The automobile was involved in an accident and Mr. Willis died as a result. Gowins was uninsured at the time of the accident. After Mr. Willis's death, plaintiff filed an insurance claim withAllstate for $1,000,000. While reviewing plaintiff's claim, Allstate realized that the limit for the Willises' automobile policy was not increased to $100,000/300,000 when the Willises purchased the umbrella policy. However, Allstate agreed to pay plaintiff $100,000 for Mr. Willis's injury to satisfy the automobile policy as it should have been. Allstate also informed plaintiff that the terms of the $1,000,000 umbrella policy did not cover Mr. Willis's death in the automobile accident, and that plaintiff could only recover that which was provided in the automobile policy.
    On 3 September 2002, plaintiff filed the underlying complaint against Allstate for breach of contract, negligence, gross negligence, unfair and deceptive trade practices, and violation of insurance laws. The complaint also alleged negligence, gross negligence, unfair and deceptive trade practices and violation of insurance laws by Williams and his company, Williams Insurance and Financial Services, Inc.   (See footnote 1)  Defendants filed answers to the complaint and, after a period of discovery, defendants filed motions for summary judgment. The motions were argued before the trial court on 1 December 2003. At the conclusion of oral arguments, the trial judge ruled from the bench in favor of defendants. After the trial court issued its ruling, plaintiffmade a motion for leave to amend the complaint. The trial court denied plaintiff's motion. On 8 December 2003, the trial court issued an order granting defendants' motions for summary judgment without entering findings of fact or conclusions of law. It is from this order that plaintiff appeals.
    



    The issues presented on appeal are whether the trial court erred by (I) granting defendants' motions for summary judgment; and (II) denying plaintiff's motion for leave to amend the complaint.

I.
    Plaintiff first argues that the trial court erred by granting summary judgment for defendants. We disagree.
    A trial court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.R. Civ. P. Rule 56(c) (2003). “[T]he evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The appellate standard of review for summary judgment “involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law.” Guthrie v. Conroy, 152 N.C. App. 15, 21, 567 S.E.2d403, 408 (2002) (citations omitted). Thus, we review each of plaintiff's claims pursuant to this standard.
Breach of Contract
    Plaintiff first argues that the trial court erred by granting summary judgment on the issue of breach of contract. We disagree.
    As an initial matter, we note that plaintiff's complaint alleges that “defendant, Allstate Insurance Company[,] has breached their contract” by failing to cover Mr. Willis's injury from an uninsured motorist accident under the umbrella policy. On appeal, plaintiff now asserts breach of contract by Williams for his failure to procure a $1,000,000 insurance policy that would cover personal injury for Mr. Willis in an automobile accident. Plaintiff thereby attempts to shift the focus of her breach of contract claim from Allstate's alleged failure to fulfill the terms of the insurance contract to Williams' failure to procure an insurance policy with adequate coverage. “[P]laintiff cannot now assert a contradictory position, or 'swap horses between courts in order to get a better mount.'” Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 103 (2002) (quotation and citation omitted). Therefore, for the purposes of this action, plaintiff's breach of contract claim is limited to Allstate.
    “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (citing Jackson v. California Hardwood Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)). In the present case,plaintiff does not dispute the validity of the umbrella insurance contract. Thus, we focus our attention on whether the terms of the umbrella policy were breached.
    The terms of the umbrella policy provide as follows:
        Coverage - When We Pay
        Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.

        Personal Activities
        Coverage applies to an occurrence arising only out of . . . the occupancy of a land vehicle, aircraft or watercraft by an insured for personal transportation.

        . . . .

        General Exclusions - When This Policy Does Not Apply
        This policy will not apply . . . to personal injury to an insured.

    The circumstances surrounding Mr. Willis's death do not give rise to a claim under this policy. The policy unequivocally states that personal injuries to an insured are not covered. According to the policy, “personal injury” includes “death of any person.” Allstate acted within its rights as the insurer to deny plaintiff's claims for personal injury to Mr. Willis, as he was insured by the umbrella policy. There is no genuine issue of material fact and Allstate is entitled to judgment as a matter of law. The trial court did not err by granting summary judgment on this issue.
Negligence
    
Plaintiff next argues that Williams was negligent for failing to procure an insurance policy that provided personal injury coverage for herself and Mr. Willis. Defendants argue thatplaintiff was contributorily negligent for not realizing the terms of the insurance contract. We agree with defendants.
    In insurance negligence cases, all parties are burdened with certain duties. Baggett v. Summerlin Ins. & Realty, Inc., 143 N.C. App. 43, 50, 545 S.E.2d 462, 467 (Tyson, J., dissenting) rev'd per curiam, 354 N.C. 347, 554 S.E.2d 336 (2001). “[Insurers] ha[ve] a duty to make an application for the insurance coverage specifically requested by plaintiffs. [Insureds] ha[ve] a duty to read their insurance policy.” Id.
        An insurance agent has a duty to procure additional insurance for a policyholder at the request of the policyholder. [This] duty does not, however, obligate the insurer or its agent to procure a policy for the insured which had not been requested. Thus, the insurance agent's duty to a policyholder is limited to the nature of the policyholder's request to the agent.

143 N.C. App. at 50-51, 545 S.E.2d at 467 (quotations and citations omitted). On the other hand, “[p]ersons entering contracts of insurance, like other contracts, have a duty to read them and ordinarily are charged with knowledge of their contents.” Id. at 53, 545 S.E.2d at 468 (citing Setzer v. Ins. Co., 257 N.C. 396, 401-02, 126 S.E.2d 135, 138-39 (1962)). “Where a party has reasonable opportunity to read the instrument in question, and the language of the instrument is clear, unambiguous and easily understood, failure to read the instrument bars that party from asserting its belief that the policy contained provisions which it does not.” 143 N.C. App. at 53, 545 S.E.2d at 469. In Baggett, where the plaintiff did not specifically ask for flood insuranceand failed to read her policy to ascertain that flood insurance was not included, the plaintiff was contributorily negligent in her claim against her insurer. Id. at 53-54, 545 S.E.2d at 468-69.
    In the instant case, the evidence presented tends to demonstrate that plaintiff asked Williams to procure “a million dollars in coverage should anything happen to us or should we be responsible for anything happening to anybody else on our properties and in our automobiles.” The policy that Williams procured provided one million dollars of liability coverage for injuries to third parties, but did not provide coverage for injuries to the Willises. However, we also recognize that plaintiff did not fulfill her duty to become familiar with the contents of the umbrella policy. Inasmuch as the policy states in “clear, unambiguous and easily understood language” that the umbrella insurance coverage “will not apply . . . to personal injury to an insured,” plaintiff is barred from asserting that the policy provided coverage for personal injury to Mr. Willis. See Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 648, 423 S.E.2d 72, 73-74 (“In this state, a plaintiff's contributory negligence is a bar to recovery from a defendant who commits an act of ordinary negligence.”) rev'd on other grounds by 334 N.C. 669, 424 S.E.2d 676 (1992). Because plaintiff is contributorily negligent, we conclude that the trial court did not err by granting summary judgment on this issue.
Unfair and Deceptive Trade Practices    Plaintiff next argues that the trial court erred by granting summary judgment on the issue of unfair and deceptive trade practices. Plaintiff specifically argues that defendant is in violation of N.C. Gen. Stat. § 58-63-15(11)f and h. We disagree.
    To establish that defendants engaged in unfair and deceptive trade practices, plaintiff must demonstrate “(1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs.” Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000); see also N.C. Gen. Stat. § 75-1.1 (2003). Chapter 58 of our General Statutes enumerates acts and practices which are deemed unfair and deceptive in the insurance business. See N.C. Gen. Stat. § 58-63-15 (2003). Among those acts and practices provided in the statute are the following: “Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear[,]” N.C. Gen. Stat. § 58-63-15(11)f; and “[a]ttempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled.” N.C. Gen. Stat. § 58-63-15(11)h.
    We conclude that Allstate had no obligation to settle plaintiff's claim under § 58-63-15(11)f due to the explicit terms of the policy, which, as discussed above, state that personal injury to the insured is not covered under the policy. Furthermore, Allstate had no obligation to settle plaintiff's claim under § 58-63-15(11)h because plaintiff could not have reasonably believed Mr. Willis was entitled to one million dollars of personalinjury coverage under the umbrella policy. As discussed above, personal injury to the insured is not covered by the policy's terms. Because this language is clearly provided in the umbrella policy, Allstate was not obligated to settle plaintiff's claim. Therefore, we conclude that the trial court properly granted summary judgment on this issue.
II.
    Plaintiff next argues that the trial court erred by denying plaintiff's motion for leave to amend the complaint. Plaintiff moved to amend the complaint after the trial court granted summary judgment for defendants. We conclude that the trial court did not err.
    After a responsive pleading is served “a party may amend his pleading only by leave of court or by written consent of the adverse party.” N.C.R. Civ. P. Rule 15(a) (2003). “'The trial court's ruling on a motion to amend is not reviewable on appeal in the absence of an abuse of discretion.'” Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 89, 398 S.E.2d 628, 633 (1990) (quoting Banner v. Banner, 86 N.C. App. 397, 400, 358 S.E.2d 110, 111 (1987)). In Chrisalis Properties, this Court held that where the plaintiff moved to amend its complaint after the trial court entered summary judgment for the defendant, “amendment of the complaint is not allowed unless the judgment is set aside or vacated under Rule 59 or Rule 60.” 101 N.C. App. at 89, 398 S.E.2d at 634.     In the present case, plaintiff concedes that she moved to amend the complaint after the trial judge granted summary judgment for defendants. Our review of the transcript reveals that plaintiff did not move to set aside or vacate the judgment under Rule 59 or Rule 60. Under these circumstances, and pursuant to Chrisalis Properties, we conclude that the trial court did not abuse its discretion by denying plaintiff's motion to amend the complaint.
    We have reviewed all of the assignments of error properly brought forth and for the reasons provided herein, we affirm the order of the trial court.
    Affirmed.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
    The trial court granted summary judgment for Williams Insurance and Financial Services, Inc. when it was established at the summary judgment hearing that the company was formed in 2000, after the events giving rise to the complaint. Williams Insurance and Financial Services, Inc. is not a party to this appeal.

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