in the Court of Appeals 8 March 2018.
by Plaintiff from order entered 17 July 2017 by Judge A.
Graham Shirley, II in Wake County No. 16-CVS-5773 Superior
Simpson Law Firm PLLC, by George L. Simpson, IV, for
plaintiff-appellant. Arnold & Smith, PLLC, by Paul A.
Tharp, for defendant-appellees.
HUNTER, JR., Robert N., Judge.
Affinity Insurance Company of America ("Plaintiff")
appeals from an order granting Le Bei, Administrator of the
Estate of Tei Paw, and Thla Aye's, Administrator of the
Estate of Khai Hne, (collectively "Defendants")
motion for summary judgment and denying Plaintiff's
motion for summary judgment. On appeal, Plaintiff argues the
trial court improperly allowed Defendants to recover
underinsured motorist coverage ("UIM"). We affirm.
Factual and Procedural Background
May 2016, Plaintiff filed a complaint for declaratory
judgment, seeking a declaration regarding automobile
insurance issued by Plaintiff to Sa Hietha. The complaint
alleged the following narrative.
September 2014, around 11:00 p.m., Hietha drove his Honda
Pilot on I-77, near Fort Mill, South Carolina. Hietha
traveled northbound, in the far, right lane. Tei Paw, Khia
Hne, Khia Tlo, Tin Aung, and Nu Cing rode as passengers in
Hietha's vehicle. David Hope drove an American Red Cross
bus ahead of Hietha, in the same lane. Mabel Gutierrez drove
a Honda Accord in the neighboring lane, also northbound.
traveled too quickly for the conditions. Consequently, he
collided with the rear of the American Red Cross bus.
Hietha's vehicle then "spun into the adjacent lane
in front of" and collided with Gutierrez's Honda
Accord. Tin Aung and Nu Cing suffered personal injuries from
the accident. Tei Paw, Khai Hne, and Khai Tlo died as a
result from injuries sustained from the accident.
May 2014 to 28 November 2014, Plaintiff insured Hietha's
vehicle through a personal automobile insurance policy
("Hietha policy"). The Hietha policy provided
liability insurance coverage with limits of $50, 000 per
person and $100, 000 per accident. The policy also provided
UIM coverage with limits of $50, 000 per person and $100, 000
distributed the following amounts under the maximum per
accident limit of liability coverage: $26, 000 to Tei Paw;
$26, 000 to Khai Hne; $26, 000 to Khai Tlo; $13, 000 to Tin
Aung; $5, 000 to Mabel Gutierrez; $2, 500 to David Hope; and
$1, 500 to Nu Cing. The parties disagreed on whether the
passengers were entitled to recover under Hietha's UIM
coverage for the difference between the amounts received
under the liability coverage and the per person limits of UIM
coverage. Thus, Plaintiff requested the trial court declare
UIM under Hietha's policy "[wa]s not triggered for
any of the Defendants under the Policy."
July 2016, Defendants filed their answer. Defendants asserted
they were entitled to UIM coverage under the Hietha policy.
At the time of the accident, Hne had a separate insurance
policy with Plaintiff. This separate policy provided UIM
coverage with limits of $50, 000 per person and $100, 000 per
accident. Paw also had a separate insurance policy with
Plaintiff. Paw's policy provided coverage with UIM limits
of $100, 000 per person and $300, 000 per accident.
Defendants contended the UIM coverage under their separate
policies should be "stacked" with the UIM coverage
under the Hietha policy.
January 2017, the trial court held a hearing for approval of
proposed settlements. In orders entered 31 January 2017, the
trial court approved of settlements of $30, 800 of
liability-policy funds to Defendant Aye and $1, 000 of
liability-policy funds to Defendant Bei. In both orders, the
trial court specifically stated the settlements "shall
not affect any rights of [Defendants] to pursue any
underinsured motorist claims against any party, including . .
. Sa Hietha[.]"
February 2017, Defendants filed a joint motion for summary
judgment. Defendants requested the trial court "declare
that they are entitled to UIM coverage under Sa Hietha's
policy, in amounts sufficient to exhaust said UIM
coverage[.]" On 1 May 2017, Plaintiff filed its own
motion for summary judgment. Plaintiff contended the multiple
claimant exception in the Financial Responsibility Act
precluded Defendants from recovering UIM coverage under the
May 2017, the trial court held a hearing on the parties'
motions. In an order entered 17 July 2017, the trial court
granted Defendants' motion for summary judgment and
denied Plaintiff's motion for summary judgment. The trial
court ordered "the movant-Defendants are entitled to
payment under at-fault Sa Hietha's per-person
underinsured motorist coverage provided by Plaintiff, subject
to any applicable credits." On 15 August 2017, Plaintiff
filed timely notice of appeal.
Standard of Review
standard of review of an appeal from summary judgment is de
novo; such judgment is appropriate only when the record shows
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.' " In re Will of Jones, 362 N.C. 569,
573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v.
Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).
"Under a de novo review, the court considers
the matter anew and freely substitutes its own judgment for
that of the lower tribunal." Craig ...