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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1170
Filed: 19 June 2007


v .                         Alamance County
                            No. 04 CVS 1834

    Appeal by unnamed defendant from judgment entered 30 March 2006 by Judge Narley L. Cashwell in Alamance County Superior Court. Heard in the Court of Appeals 22 March 2007.

    Younce & Vtipil, P.L.C., by Robert C. Younce, Jr. and J. Brett Davis, for plaintiff-appellee.

    Bennet & Guthrie, P.L.L.C., by Rodney A. Guthrie, Roberta B. King and Joshua H. Bennett, for unnamed defendant-appellant.

    Patricia Wilson Kernodle, pro se.

    LEVINSON, Judge.

    Unnamed defendant (Integon National Insurance Company, herein Integon) appeals a declaratory judgment entered in favor of plaintiff's estate that required Integon to pay the estate $30,000 in uninsured motorist coverage. We reverse.
    The relevant facts may be summarized as follows: On 12 November 2002, Michael Brandon Bissette, herein Bissette (now deceased) was driving a 1995 Mitsubishi owned by Kimberly Champion (defendant). Bissette was traveling east on U.S. Highway 70 near Haw River, North Carolina. Defendant was also traveling eastboundon U.S. 70 near Haw River, driving a 1998 Pontiac. Defendant's vehicle and the 1995 Mitsubishi driven by Bissette collided, resulting in the death of Bissette.
    Defendant was not carrying automobile insurance on the date of the accident. However, the owner of the vehicle driven by Bissette, Kimberly Champion, had an automobile policy with Farm Bureau Insurance of North Carolina, Inc. (Farm Bureau). On 15 March 2004, Farm Bureau paid the policy's limit of $30,000 to plaintiff as a result of Bissette's death pursuant to the uninsured motorist (UM) coverage provisions set forth in Champion's policy.
    On the date of the vehicle collision, Bissette was personally insured under an automobile policy issued by Integon that provided him with UM coverage up to a limit of $30,000. However, the Bissette policy provided, in pertinent part, that:
        If this policy and any other auto insurance policy issued to you apply to the same accident, the maximum limit of liability for your injuries under all of the policies shall not exceed the highest applicable limit of liability under any one policy.

    On 20 August 2004, plaintiff's estate filed a wrongful death suit in Alamance County Superior Court. In that action, plaintiff's estate sought in excess of $10,000 against defendant for injuries and damages sustained as a result of the 12 November 2002 collision between Bissette and defendant. On 30 September 2004, Integon filed an answer and counterclaim for declaratory judgment seeking a determination of coverage for Bissette under his personal automobile liability insurance policy. Integon alleged that it has no obligation to provide UM coverage to any uninsuredmotorist who may be found liable to plaintiff. The trial court held a bench trial and on 30 March 2006, entered judgment in favor of plaintiff's estate in the amount of $30,000, concluding that plaintiff was permitted to “stack” Integon's UM coverage on top of the coverage already provided to him under Champion's State Farm UM policy. Integon now appeals.
    In Integon's sole argument on appeal, it contends that the trial court erred by requiring it to pay $30,000 to plaintiff's estate because the 2001 version of N.C. Gen. Stat. § 20- 279.21(b)(3) prohibits “stacking” of UM coverages. This argument has merit.
        Our standard of review of a declaratory judgment is the same as in other cases. Accordingly, in a declaratory judgment action where the trial court decides questions of fact, we review the challenged findings of fact and determine whether they are supported by competent evidence. If we determine that the challenged findings are supported by competent evidence, they are conclusive on appeal. We review the trial court's conclusions of law de novo.

Calhoun v. WHA Medical Clinic, PLLC, __ N.C. __, __, 632 S.E.2d

563, 571 (2006). In addition, findings of fact not challenged on appeal are binding on this Court. Johnson v. Herbie's Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118 (2003).
    We apply N.C. Gen. Stat. § 20-279.21(b)(3)(2001) to resolve the present appeal:
        Where coverage is provided on more than one vehicle insured on the same policy or where the owner or the named insured has more than one policy with coverage under this subdivision, there shall not be permitted any combination of coverage within a policy orwhere more than one policy may apply to determine the total amount of coverage available.

    This Court's latest interpretation of the 2001 version of G.S. § 20-279.21(b)(3) was articulated in Trivette v. State Farm Mut. Auto. Ins. Co., 164 N.C. App. 680, 596 S.E.2d 448 (2004). In Trivette, plaintiff was struck by a vehicle owned and operated by Jose Hernandez, who was an underinsured motorist. Id. at 681, 596 S.E.2d at 449. Plaintiff was the named insured on a policy issued by Integon, which “provided UM coverage limits of $30,000 per person and $60,000 per accident.” Id. Additionally, at the time of the accident, “plaintiff lived with his parents who were named insureds under an automobile insurance policy issued by defendant [State Farm].” The State Farm policy “contained a clause that limited [its] UM liability to the highest amount in either policy if both policies covered the same accident[.]” Id. at 684, 596 S.E.2d at 450. Plaintiff attempted to “stack” the UM coverage in his own Integon policy on top of the UM coverage provided under his parents' policy. The gravamen of plaintiff's argument was that the 2001 version of G.S. § 20-279.21(b)(3) did not prohibit stacking of the UM coverages because plaintiff was neither the named insured under both policies, nor the owner of any vehicle covered by defendant's policy. Id. at 683, 596 S.E.2d at 450.
    This Court rejected plaintiff's argument and concluded that:
        As plaintiff received UM coverage from his own policy and his parents' policy, we hold     plaintiff “has more than one policy with coverage under this subdivision” and is not entitled to stack UM coverage limits under the policies. The plain language of both policies clearly limits the total UM coverage to the “highest applicable limit of liability under any one policy.”        
        . . . .

        Adopting plaintiff's interpretation of N.C. Gen. Stat. § 20-279.21(b)(3) would allow those who are not named insureds on a policy to stack coverage limits and receive a UM windfall while denying equal treatment to named insureds who actually pay the premiums for UM coverage. This 'illogical' conclusion is unsupported by amended N.C. Gen. Stat. § 20-279.21 . . . .

Id. at 684-85, 596 S.E.2d at 451.

    In the instant case, we are guided by the principles articulated in Trivette and conclude that the trial court erred by ordering Integon to pay $30,000 UM coverage to plaintiff's estate. Like the plaintiff in Trivette, plaintiff in the present case had UM coverage under his policy and that of Champion, and therefore has more than one policy with coverage under G.S. § 20- 279.21(b)(3). Plaintiff is not permitted to stack UM coverage limits under the policies. Accordingly, in line with Bissette's policy, which limited UM coverage to the higher limit of two policies (which are both $30,000), plaintiff's estate is not entitled to receive additional monies from the Integon policy.
    Judges BRYANT and STEELMAN concur.
    Report per Rule 30(e).

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