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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
PROGRESSIVE AMERICAN INSURANCE COMPANY and TIMOTHY DASSINGER,
Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
THERESA DASSINGER, TAMI PHILLIPS, and JAMES STOKELY, Defendants
Filed: 17 July 2007
1. Gifts_donation of car to son_title still in mother
A mother who donated a car to her son owned the car at the time of an accident where the
mother never transferred title of the car to the son.
2. Insurance_automobile_donated car_policy not automatically terminated
The automobile policy of a mother who donated a car to her son did not automatically
terminate when the son purchased insurance on the car where the automatic termination clause of
the mother's policy applied only if the named insured (the mother) obtained other insurance on
the car, and the two policies at issue were procured by different persons.
3. Insurance_automobile_donated car_liability coverage_donee's policy_excess
Where a mother donated a car to her son but never transferred title to the son, liability
coverage under the son's automobile policy was excess over the liability coverage provided by
the mother's policy since both policies made coverage excess with respect to a vehicle not owned
by the named insured.
4. Insurance_automobile_donated car_collision coverage_pro rata coverage by
donor's and donee's policies
Where a mother donated a car to her son but never transferred title to the son, and both
the mother and son had collision insurance on the car, both policies provided collision coverage
for the car on a pro rata basis because the car was not a non-owned auto within the meaning of
clauses in each policy making collision coverage excess with respect to a non-owned auto
because the car was still owned by the mother and it was furnished for the regular use of the son.
5. Appeal and Error_preservation of issues_summary judgment_failure to assign
error to specific conclusion
In reviewing a summary judgment order, a party's failure to assign error to a specific
conclusion of law made by the trial court does not bind the appellate court to the result reached
by the lower court.
6. Unjust Enrichment_insurance benefits_payment under mistake belief
Where a mother donated a car to her son but never transferred title to him, the son and his
automobile insurer were entitled to restitution based upon unjust enrichment from the mother,
her insurer and an accident victim for insurance benefits paid by the son's insurer under the
mistaken belief that the mother had transferred title to the son because the son and his insurer
conferred a readily measurable benefit and did not do so officiously or gratuitously.
Appeal by Plaintiffs from judgment entered 25 April 2006 by
Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard
in the Court of Appeals 8 March 2007.
Young Moore and Henderson P.A., by Brian O. Beverly, for
Hall, Rodgers, Gaylord & Millikan, PLLC, by Kathleen M.
Millikan and Jonathan E. Hall, for Defendants-Appellees State
Farm Mutual Insurance Company and Theresa Dassinger.
On or about 11 January 2003, Defendant State Farm Mutual
Automobile Insurance Company (State Farm) issued a personal
automobile insurance policy to Defendant Theresa Dassinger covering
her 1993 Mazda automobile (the Mazda) . The State Farm policy
period was from 11 January 2003 through 31 August 2003 . In March
2003, Theresa Dassinger gave the Mazda to her son, Plaintiff
Timothy Dassinger, as a gift . Although Timothy Dassinger took
possession of the Mazda at the time of the gift, Theresa Dassinger
never transferred the Mazda's title to Timothy Dassinger .
On 17 March 2003, Plaintiff Progressive American Insurance
Company (Progressive) issued a personal automobile insurance
policy covering the Mazda to Timothy Dassinger and Defendant Tami
Phillips as co-insureds . At that time, Tami Phillips was Timothy
Dassinger's girlfriend . The Progressive policy period was from 17
March 2003 through 17 September 2003 . The terms of the State Farm
and Progressive policies were identical in all applicable respects .
Both policies provided bodily injury and property damage liabilitycoverage with limits of $100,000.00 per person and $300,000.00 per
accident, as well as collision coverage .
On 8 May 2003, Defendant Tami Phillips was involved in a two-
car accident with a vehicle being driven by Defendant James
Stokely . The accident resulted in personal injury to Mr. Stokely,
property damage to the Stokely vehicle, and collision damage to the
Mazda . Having been informed of the accident, State Farm and
Progressive entered into an informal agreement (the agreement) to
share responsibility for the claims arising out of the accident .
Before reaching the agreement, Progressive was informed that
Timothy Dassinger owned the Mazda .
Pursuant to the agreement, Progressive paid $3,201.25 for
collision damage sustained to the Mazda and $240.00 for rental car
expenses incurred by Timothy Dassinger as a result of the accident .
Additionally, Progressive paid the owner of the Stokely vehicle
$3,792.81 for damage to that vehicle. State Farm paid Progressive
$1,896.41, one-half of the amount paid by Progressive for damage to
the Stokely vehicle . Timothy Dassinger incurred a $250.00
deductible for damages to the Mazda. After paying the amounts
agreed upon under the agreement, Progressive discovered that
Theresa Dassinger had never transferred the Mazda's title to
By complaint filed 22 March 2005, and under a theory of unjust
enrichment, Plaintiffs sought restitution in the amount of
$7,484.06, the total amount paid by Progressive and incurred by
Timothy Dassinger. Plaintiffs also sought declaratory judgmentthat (1) Theresa Dassinger was the owner of the Mazda at the time
of the accident, (2) the State Farm policy provided primary
coverage for all claims arising out of the accident, and (3) the
Progressive policy provided excess coverage for all claims arising
out of the accident . In their answer filed 25 May 2005, Defendants
sought declaratory judgment that (1) the Progressive policy
provided primary coverage for all claims or, in the alternative,
shared a pro rata obligation under all coverage provisions, and (2)
the State Farm policy provided excess coverage for all claims.
Defendants further asked that Progressive recover nothing .
Plaintiffs filed a motion for summary judgment on 11 January 2005 ,
and a hearing on the motion was held on 23 January 2006 . State
Farm moved for summary judgment at the hearing .
In its summary judgment order entered 25 April 2006, the trial
court made twenty findings of fact and five conclusions of law .
The trial court denied Plaintiffs' motion for summary judgment and
granted summary judgment in favor of Defendants . The trial court
declared that only the Progressive policy provided liability and
collision coverage on the Mazda at the time of the accident. Thus,
the trial court ordered Progressive to pay State Farm $1,896.41,
the amount paid by State Farm under the agreement. From the trial
court's summary judgment order, Plaintiffs appeal. We reverse the
trial court's order and remand for the entry of an order consistent
with this opinion.
I. STANDARD OF REVIEW
Our standard of review from an order denying summary judgment is whether there is any genuine issue of
material fact and whether the moving party is
entitled to a judgment as a matter of law.
Further, the evidence presented by the parties
must be viewed in the light most favorable to
the non-movant. The court should grant
summary judgment when 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. Farm Bureau Ins. Co. v. Nationwide Mut. Ins. Co., 168 N.C.
App. 585, 586, 608 S.E.2d 112, 113 (2005) (quoting Bruce-Terminix
Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577
(1998)) (quotations and citation omitted).
II. DECLARATORY JUDGMENT
Plaintiffs assert that the trial court erred in holding that
(1) the State Farm policy automatically terminated when the
Progressive policy was issued, (2) the Progressive policy provided
primary liability and collision coverage for the accident, and (3)
the State Farm policy did not provide either liability or collision
coverage for the accident. We agree.
A. OWNERSHIP OF THE MAZDA
 Since Timothy Dassinger never obtained title to the Mazda,
Theresa Dassinger owned the Mazda at the time of the accident. See
N.C. Gen. Stat. § 20-4.01(26) (2005) (defining [o]wner as the
person holding the vehicle's legal title); see also N.C. Gen.
Stat. § 20-72(b) (2005) (explaining requirements for transferring
interest in a motor vehicle).
B. AUTOMATIC TERMINATION
 Insurance policies are considered contracts between two
parties. Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341,
152 S.E.2d 436 (1967). Insurance contracts are construed
according to the intent of the parties, and in the absence of
ambiguity, we construe them by the plain, ordinary and accepted
meaning of the language used. Integon General Ins. Corp. v.
Universal Underwriters Ins. Co., 100 N.C. App. 64, 68, 394 S.E.2d
209, 211 (1990) (citing Williams v. Nationwide Mut. Ins. Co., 269
N.C. 235, 238, 152 S.E.2d 102, 105-06 (1967)). In construing an
insurance policy, 'nontechnical words, not defined in the policy,
are to be given the same meaning they usually receive in ordinary
speech, unless the context requires otherwise.' Brown v.
Lumbermens Mut. Cas. Co., 326 N.C. 387, 392, 390 S.E.2d 150, 153
(1990) (quoting Grant v. Emmco Ins. Co., 295 N.C. 39, 42, 243
S.E.2d 894, 897 (1978)). [I]t is the duty of the court to
construe an insurance policy as it is written, not to rewrite it
and thus make a new contract for the parties. Allstate, 269 N.C.
at 346, 152 S.E.2d at 440 (citations omitted).
Under its General Provisions, the State Farm policy contained
the following Automatic Termination clause:
If you obtain other insurance on your covered
auto, any similar insurance provided by this
policy will terminate as to that auto on the
effective date of the other insurance.
(Emphasis added and emphasis in original.) In the State Farm
policy's Definitions section, you is defined as the 'named
insured' shown in the Declarations and [t]he spouse if a
resident of the same household[,] and [y]our covered auto isdefined as [a]ny vehicle shown in the Declarations. The
Declarations to the State Farm policy show Theresa Dassinger as
named insured and the Mazda as a covered vehicle .
The State Farm policy's automatic termination clause is
unambiguous. Construing the clause and related definitions by the
plain, ordinary, and accepted meaning of the language used, the
automatic termination clause only applies if Theresa Dassinger
obtains other insurance on the Mazda. Defendants' reliance on
State Farm Mut. Auto. Ins. Co. v. Atlantic Indem. Co., 122 N.C.
App. 67, 468 S.E.2d 570 (1996), is misplaced. In that case, the
two insurance policies at issue were procured by the same person,
who was the named insured under both policies. In this case, since
the State Farm policy and the Progressive policy were procured by
different persons, the State Farm policy did not automatically
terminate on 17 March 2003, and the State Farm policy was in effect
at the time of the accident.
C. LIABILITY COVERAGE
 [A]n insurer by the terms of its policy could exclude
liability coverage under [the owner's] policy if the driver of a
vehicle . . . was covered under his own policy for the minimum
amount of liability coverage required by the Motor Vehicle
Financial Responsibility Act, N.C.G.S. § 20-279.1 et seq. [Act].
United Services Auto. Ass'n v. Universal Underwriters Ins. Co., 332
N.C. 333, 334, 420 S.E.2d 155, 156 (1992). [W]here two policies
satisfy the Act's coverage requirements, the driver's insurance
carrier, depending on the language of the policies, providesprimary coverage. Metropolitan Property and Cas. Ins. Co. v.
Lindquist, 120 N.C. App. 847, 850, 463 S.E.2d 574, 576 (1995)
(citations omitted) (emphasis added). Therefore, whether [State
Farm] (owner's insurer) or [Progressive] (driver's insurer)
provides primary coverage for the [a]ccident is controlled by the
terms and exclusions within each policy. Id.
By the Insuring Agreement of the policies' liability
coverage provisions, both State Farm and Progressive agree to pay
damages for bodily injury or property damage for which any insured
becomes legally responsible because of an auto accident.
(Emphasis in original.) For purposes of the insuring agreements,
an [i]nsured is defined, in part, as [y]ou or [a]ny person
using your covered auto. (Emphasis in original.) By these terms,
both policies provided liability coverage for the 8 May 2003
Having determined that both policies provided liability
coverage at the time of the accident, we must next determine the
relative obligations under each policy in light of the policies'
identical Other Insurance clauses:
If there is other applicable liability
insurance we will pay only our share of the
loss. Our share is the proportion that our
limit of liability bears to the total of all
applicable limits. However, any insurance we
provide for a vehicle you do not own shall be
excess over any other collectible insurance.
The Mazda was a vehicle Timothy Dassinger d[id] not own at the
time of the accident, and thus Progressive's liability coverage is
excess over any other collectible insurance. Since we determinedabove that the State Farm policy provides liability coverage for
the accident, the State Farm policy constitutes other collectible
insurance. Thus, the Progressive policy only provides coverage
under its liability provisions when the limit of the State Farm
policy's coverage is met. The State Farm policy provided primary
liability coverage for the accident. The Progressive policy's
liability coverage was excess. The trial court's judgment that the
State Farm policy did not provide liability coverage for the
accident is reversed.
D. COLLISION COVERAGE
 By the terms of the policies' collision coverage
provisions, both State Farm and Progressive agree to pay for
direct and accidental loss to your covered auto or any non-owned
auto, including their equipment. (Emphasis in original.)
Additionally, the collision coverage provisions of both policies
contain the following Other Insurance clause:
If other insurance also covers the loss we
will pay only our share of the loss. Our
share is the proportion that our limit of
liability bears to the total of all applicable
limits. However, any insurance we provide
with respect to a non-owned auto shall be
excess over any other collectible insurance.
(Emphasis in original.) Under both policies, a [n]on-owned auto
is defined, in part, as:
Any private passenger auto, station wagon
type, pickup truck, van or trailer not owned
by or furnished or available for the regular
use of you or any family member while in the
custody of or being operated by you or any
(Emphasis in original.) Under the Progressive policy, the Mazda is not a non-owned
auto because it was furnished for the regular use of Timothy
Dassinger. See Hernandez v. Nationwide Mut. Ins. Co., 171 N.C.
App. 510, 512, 615 S.E.2d 425, 426 ([A]ll cars which are not owned
within the meaning of G.S. 20-72(b) are insured 'non-owned'
automobiles except those which are furnished for the regular use of
the insured or his relative.) (quotations and citation omitted),
disc. review denied, 360 N.C. 63, 621 S.E.2d 624 (2005). Thus, the
Progressive policy's collision coverage is not excess over any
other collectible insurance. Under the State Farm policy, the
Mazda is not a non-owned auto because the Mazda was owned by
Theresa Dassinger. Since each policies' share of the loss is
limited to the proportion that [the] limit of liability bears to
the total of all applicable limits[,] and since both policies have
the same limit, State Farm and Progressive must share pro rata in
the damages to the Mazda. The trial court's judgment that the
State Farm policy did not provide collision coverage for the
accident is reversed.
III. UNJUST ENRICHMENT
 Having determined the extent of the insurance policies'
coverage, we must now determine whether the trial court erred in
denying Plaintiffs' motion for summary judgment on their
restitution claim, as Plaintiffs contend.
When one [party] confers a benefit upon another which is not
required by a contract either express or implied or a legal duty,
the recipient thereof is often unjustly enriched and will berequired to make restitution therefor. Siskron v. Temel-Peck
, 26 N.C. App. 387, 390, 216 S.E.2d 441, 444
(1975). Unjust enrichment is a claim in quasi contract or a
contract implied in law. Booe v. Shadrick
, 322 N.C. 567, 570, 369
S.E.2d 554, 556, reh'g denied
, 323 N.C. 370, 373 S.E.2d 540-41
In order to establish a claim for unjust
enrichment, a party must have conferred a
benefit on the other party. The benefit must
not have been conferred officiously, that is
it must not be conferred by an interference in
the affairs of the other party in a manner
that is not justified in the circumstances.
The benefit must not be gratuitous and it must
(citations omitted). Additionally, the defendant must have
consciously accepted the benefit. Booe
, 322 N.C. at 570, 369
S.E.2d at 556.
We first address Defendants' argument that Plaintiffs' failure
to assign error to one of the trial court's conclusions of law
binds this Court to the result reached by the lower court. In its
summary judgment order, the trial court concluded as a matter of
law that any payments made by Progressive were made voluntarily
and/or gratuitously[.] Plaintiffs did not specifically assign
error to this conclusion. Thus, Defendants argue, this Court must
affirm the trial court's decision to deny summary judgment on
Plaintiffs' unjust enrichment claim, even if it is determined by
this Court that Progressive's policy did not provide primary
liability coverage[.] We disagree with Defendants' assertion. Our standard of review is de novo
. Howerton v. Arai Helmet,
, 358 N.C. 440, 597 S.E.2d 674 (2004). Furthermore, our
Supreme Court has held:
The purpose of summary judgment is to
eliminate formal trial when the only questions
involved are questions of law. Thus, although
the enumeration of findings of fact and
conclusions of law is technically unnecessary
and generally inadvisable in summary judgment
cases, summary judgment, by definition, is
always based on two underlying questions of
law: (1) whether there is a genuine issue of
material fact and (2) whether the moving party
is entitled to judgment. On appeal, review of
summary judgment is necessarily limited to
whether the trial court's conclusions as to
these questions of law were correct ones. It
would appear, then, that notice of appeal
adequately apprises the opposing party and the
appellate court of the limited issues to be
reviewed. Exceptions and assignments of error
Ellis v. Williams
, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987)
(internal citations omitted) (emphasis added); see also Nelson v.
Hartford Underwriters Ins. Co.
, 177 N.C. App. 595, 603, 630 S.E.2d
221, 227 (2006) (This Court is required to follow the decisions of
our Supreme Court. . . . Accordingly, we follow Ellis
see Shook v. County of Buncombe
, 125 N.C. App. 284, 285, 480 S.E.2d
706, 707 (1997) (In our view, Ellis
is no longer the law.). We
conclude that, in reviewing a summary judgment order, a party's
failure to assign error to a specific conclusion of law made by the
trial court does not bind this Court to the result reached by the
lower court. Ellis
 From our review of the record, it is clear that the
amounts paid by Plaintiffs were paid under the mistaken belief thatTimothy Dassinger owned the Mazda at the time of the accident.
analysis of the parties' obligations under the insurance policies,
above, reveals that Plaintiffs thus conferred a benefit on
Defendants. The benefit was not conferred officiously or
gratuitously and is readily measurable. The trial court erred in
denying Plaintiffs' motion for summary judgment on their claim for
restitution, in granting summary judgment in favor of Defendants,
and in ordering Progressive to pay State Farm $1,896.41.
For these reasons, the order of the trial court is reversed.
The State Farm policy provided primary liability coverage for the
accident. The Progressive policy provided excess liability
coverage for the accident. Both the State Farm policy and the
Progressive policy provided collision coverage for the accident.
Plaintiffs are entitled to restitution for payments made which were
not owed under the Progressive policy. This case is remanded for
the entry of an order consistent with this opinion.
REVERSED and REMANDED.
Judges McGEE and CALABRIA concur.
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