NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff,
WILLIAM THOMAS DANA, JR., INDIVIDUALLY and as ADMINISTRATOR OF THE ESTATE OF PAMELA MARGUERITE DANA, Defendants.
in the Court of Appeals 24 April 2019.
by Plaintiff from Order entered 2 August 2018 by Judge Eric
C. Morgan in Forsyth County No. 17 CVS 4853Superior Court.
William F. Lipscomb for plaintiff-appellant.
Maynard & Harris Attorneys at Law, PLLC, by C. Douglas
Maynard, Jr. and Sarah I. Young, for defendants-appellees.
court is tasked with determining what amount, if any, of
underinsured motorist ("UIM") coverage is
available, it must determine whether UIM coverage is
available at all, and, if so, how much the insured party or
parties are entitled to receive in light of: (1) the number
of claimants seeking coverage under the UIM policy and (2)
whether the negligent driver's liability policy was
exhausted pursuant to a per-person or per-accident cap. Here,
the parties stipulated that UIM coverage is available to the
Defendants. Additionally, there are two claimants seeking
coverage under the UIM policy, and the negligent driver's
liability was exhausted pursuant to a per-accident cap.
Accordingly, we must hold that Plaintiff, North Carolina Farm
Bureau Mutual Insurance Company, Inc., is obligated to pay
the Defendants pursuant to the per-accident cap in the
parties' insurance agreement. The trial court's grant
of summary judgment in favor of the Defendants is affirmed.
a declaratory judgment action regarding the extent of
Plaintiff's liability to Defendants stemming from an
automobile accident in which Defendant William Thomas Dana
("Mr. Dana") was injured and his wife ("Ms.
Dana")-whose estate he represents in this suit-was
killed. Ms. Dana was the named insured of a personal auto
insurance policy issued by Plaintiff that covered the vehicle
involved in the crash and provided UIM coverage in the
amounts of $100, 000.00 per-person and $300, 000.00
per-accident. The other driver involved in the collision was
represented by Integon Insurance and had liability coverage
up to $50, 000.00 per-person and $100, 000.00 per-accident.
the accident, Integon agreed to pay out the full $100, 000.00
per-accident limit, divided equitably among the four parties
involved in the accident, with Mr. Dana receiving $32, 000.00
and Ms. Dana's estate receiving $43, 750.00. In
accordance with the per-person limits in Ms. Dana's
insurance agreement, Plaintiff paid Mr. Dana $68, 000.00
($100, 000.00 per-person UIM limit less the $32, 000.00 paid
by Integon) and Ms. Dana's estate $56, 250.00 ($100,
000.00 less the $43, 750.00 paid by Integon).
trial, Defendants successfully argued that, because the
liability policy limits of Integon were exhausted on a
per-accident basis, they are entitled to a total of $200,
000.00 of UIM coverage from Plaintiff (the $300, 000.00
per-accident limit less $100, 000.00 paid by Integon).
Plaintiff contends Defendants have already received the
maximum amount of UIM coverage available under the policy in
question. Both parties moved for summary judgment, which was
granted for the Defendants rendering Plaintiff liable for an
additional $75, 750.00 of UIM coverage ($200, 000.00 unpaid
coverage less $68, 000.00 to Mr. Dana and $56, 250.00 paid to
Ms. Dana). Plaintiff filed timely notice of appeal.
on appeal is to determine whether the trial court was correct
in determining, as a matter of law, that "[p]er the
holding in [ N.C. Farm Bureau Mut. Ins. Co. v. Gurley,
et. al., 139 N.C.App. 178, 532 S.E.2d 846 (2000)], the
underlying policy in this matter was exhausted on a
per-accident basis, requiring the applicability of the
per-accident underinsured limits for the Defendants'
claims." In reviewing a trial court's decision to
grant or deny summary judgment, our standard is de novo.
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d
572, 576 (2008). Summary 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." Id. (quoting
Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d
382, 385 (2007) (internal quotation marks omitted)). Because
the parties stipulated to the relevant facts of this case,
there are no genuine issues of material fact. After careful
review, we conclude Defendant was entitled to a judgment as a
matter of law and the trial court did not err in granting
Defendant summary judgment.
Gurley, we established a straightforward analysis to
determine in what amount, if any, UIM coverage is available,
given both the insurance policy in question and our UIM
statute, N.C. G.S. § 20-279.21(b) (2017).
Gurley, 139 N.C.App. at 180, 532 S.E.2d at 848.
Initially we must determine whether UIM coverage is
available. Id. If UIM coverage is available, we next
ascertain "how much coverage the insureds are entitled
to receive under the UIM policy." Id. To decide
how much coverage the insured party or parties are entitled
to, we must consider "(1) the number of claimants
seeking coverage under the UIM policy; and (2) whether the
negligent driver's liability policy was exhausted
pursuant to a per-person or per-accident cap."
Id. at 181, 532 S.E.2d at 848.
[W]hen more than one claimant is seeking UIM coverage, as is
the case here, how the liability policy was exhausted will
determine the applicable UIM limit. In particular, when the
negligent driver's liability policy was exhausted
pursuant to the per-person cap, the UIM policy's
per-person cap will be the applicable limit. However, when
the liability policy was exhausted pursuant to ...