Appeal by plaintiff from a judgment entered 25 May 2006 by
Judge Richard W. Stone in Forsyth County Superior Court. Heard in
the Court of Appeals 29 March 2007.
Bennett & Guthrie, P.L.L.C., by Rodney A. Guthrie, Joshua H.
Bennett, and Jason P. Burton, for plaintiff-appellant.
Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, for
defendant-appellees Brandon Lee Ward and Frankie J. Perry.
BRYANT, Judge.
Integon National Insurance Company (plaintiff) appeals from an
order entered 25 May 2006 granting summary judgment in favor of
Brandon Lee Ward (Ward) and denying, in part, plaintiff's Motion
for Summary Judgment. We affirm the order of the trial court.
Facts and Procedural History
In February 2002, Thomas Dwayne Taylor obtained a personal
automobile liability insurance policy with Integon National
Insurance Company for the policy period beginning 9 February 2002,and ending 9 August 2002. On 9 March 2002, Taylor, accompanied by
Brandon Lee Ward, drove in Taylor's insured vehicle to the Bragg
Auto and Muffler Shop in Spring Lake, North Carolina, to have some
exhaust work done on Taylor's insured vehicle. Ward was two years
old at the time. While they were waiting for the repair work to be
completed on Taylor's car, Taylor and Ward walked around the
premises of Bragg Auto.
As Taylor and Ward were walking back to the office, George
Redin Smith, backed another vehicle out one of the maintenance bays
and struck Ward, causing Ward bodily injuries. At the time of the
accident, Smith was an employee of Bragg Auto and operated the
automobile in the course and scope of his employment with Bragg
Auto and with the knowledge and consent of Bragg Auto. The
automobile driven by Smith at the time of the accident was not
owned by Taylor and was not listed on his policy.
On 4 March 2005, Ward, by and through his Guardian
ad Litem
Frankie J. Perry, filed a lawsuit in Durham County Superior Court
against Bragg Auto & Muffler, Inc. d/b/a Bragg Auto and Muffler
Shop, George Redin Smith, and Thomas Dwayne Taylor. In that suit,
Ward seeks to recover damages he allegedly sustained in the March
9 March 2002 accident, which he claims was caused by the negligence
of Bragg Auto, Smith, and Taylor. On 11 August 2005, plaintiff
filed a Complaint for Declaratory Judgment seeking a determination
of coverage for Taylor, its insured, under his personal automobile
liability insurance policy. On 1 May 2006, plaintiff filed a
Motion for Summary Judgment. Ward similarly filed a Motion forSummary Judgment on 8 May 2006. By Order entered 25 May 2006, the
trial court granted Ward's Motion for Summary Judgment and denied
plaintiff's Motion for Summary Judgment, in part. The trial court
held that the automobile insurance policy issued to Taylor by
plaintiff does not provide medical payments coverage for Ward;
however the policy does provide liability coverage to Taylor for
the claims raised by Ward against Taylor in the suit currently
pending in Durham County. Plaintiff appeals.
_________________________
Plaintiff raises the issue of whether the trial court erred in
denying, in part, its motion for summary judgment. Under Rule
56(c) of the North Carolina Rules of Civil Procedure, summary
judgment “shall be rendered forthwith 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. Gen. Stat. § 1A-1, Rule 56(c)
(2005). “The burden is upon the moving party to show that no
genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law.”
McGuire v. Draughon, 170
N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005) (citing
Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982)). On
appeal, this Court reviews an order granting summary judgment
de
novo.
McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620,
625 (2006). Plaintiff argues the trial court erred in denying its motion
for summary judgment because there is no liability coverage under
the terms and conditions of Taylor's insurance policy for the
claims raised by Ward against Taylor. Plaintiff contends the
accident in which Ward was injured did not arise out of the
ownership, maintenance or use of Taylor's vehicle insured with
plaintiff. We disagree.
“[I]t is well established in North Carolina that as a matter
of law the provisions of the Financial Responsibility Act are
written into every automobile liability policy.”
Nationwide Mut.
Ins. Co. v. Webb, 132 N.C. App. 524, 525, 512 S.E.2d 764, 765
(citing
State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318
N.C. 534, 538-39, 350 S.E.2d 66, 69 (1986)),
disc. review denied,
350 N.C. 834, 538 S.E.2d 198 (1999). Pursuant to the Financial
Responsibility Act, an owner's policy of liability insurance,
“[s]hall insure the person named therein . . . against loss from
the liability imposed by law for damages arising out of the
ownership, maintenance or use of such motor vehicle[.]” N.C. Gen.
Stat. . 20-279.21(b)(2) (2005).
Our Supreme Court has further held 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., 318 N.C. at 538, 350 S.E.2d at 68. The Court held:
The words 'arising out of' are not words of
narrow and specific limitation but are broad,
general, and comprehensive terms affecting
broad coverage. They are intended to, and do,afford protection to the insured against
liability imposed upon him for all damages
caused by acts done in connection with or
arising out of such use. They are words of
much broader significance than 'caused by.'
They are ordinarily understood to mean . . .
'incident to,' or 'having connection with' the
use of the automobile[.]
Id. at 539, 350 S.E.2d at 69 (quoting
Fidelity & Cas. Co. of N.Y.
v. N.C. Farm Bureau Mut. Ins. Co., 16 N.C. App. 194, 198, 192
S.E.2d 113, 118,
cert. denied, 282 N.C. 425, 192 S.E.2d 840
(1972)). “[T]he 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. Instead, the
test is whether there is a causal connection between the use of the
automobile and the accident.”
Id. at 539-40, 350 S.E.2d at 69.
Here, Taylor drove his insured vehicle to Bragg Auto for some
maintenance work. Ward accompanied Taylor and they were both
walking around the repair shop while waiting for the repairs to be
completed. While walking back to the office of the repair shop,
Ward was struck by a vehicle backing out of a repair bay and driven
by an employee of Bragg Auto. While the use of Taylor's vehicle
cannot be said to have been the direct cause of Ward's injuries, a
sufficient causal connection between the use and the injuries does
exist.
See Nationwide Mut. Ins. Co. v. Davis, 118 N.C. App. 494,
497-98, 455 S.E.2d 892, 894-95, (holding an automobile liability
insurance policy covered damages arising out of the “use” of a
vehicle where the insured driver parked across the street from a
store, and a six-year-old child who was a passenger in the insured
vehicle was subsequently stuck by another vehicle while attemptingto cross the road),
disc. review denied, 341 N.C. 420, 461 S.E.2d
759 (1995). Thus, Taylor's automobile liability insurance policy
with plaintiff does provide liability coverage for the claims
raised by Ward against Taylor in the lawsuit currently pending in
Durham County.
Affirmed.
Judge LEVINSON concurs.
Judge STEELMAN concurs in a separate opinion.
STEELMAN, Judge, concurring in separate opinion.
I concur in the majority opinion, but write separately to
emphasize that our holding that Integon's policy provides coverage
in no way should be construed to imply that Taylor was negligent in
causing the injuries to the plaintiff.
*** Converted from WordPerfect ***