Erwin v. Tweed

544 S.E.2d 803, 142 N.C. App. 643, 2001 N.C. App. LEXIS 175
CourtCourt of Appeals of North Carolina
DecidedApril 3, 2001
DocketNo. COA00-250
StatusPublished
Cited by3 cases

This text of 544 S.E.2d 803 (Erwin v. Tweed) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erwin v. Tweed, 544 S.E.2d 803, 142 N.C. App. 643, 2001 N.C. App. LEXIS 175 (N.C. Ct. App. 2001).

Opinion

EAGLES, Chief Judge.

Unnamed defendant (hereinafter “Farm Bureau”) appeals from the order and declaratory judgment finding that the plaintiff was entitled to underinsured motorist coverage under two insurance policies. The polices covered vehicles owned by Bellevue Farm Trust (“hereinafter BFT”). Plaintiff lives on Bellevue Farm with his parents and is a beneficiary of BFT.

The evidence presented at the hearing tends to show the following. On 19 December 1993 plaintiff, the 15 year old child of W.C. Erwin, Jr., was struck and injured on his bicycle by the vehicle driven by defendant Tweed. Defendant Tweed’s vehicle was covered by a policy issued by State Auto Insurance Company which provided bodily injury coverage in the amount of $50,000.00 per person. State Auto tendered its limits — $12,666.00 to plaintiff’s parents for medical bills, and the balance of $37,334.00 to plaintiff. On 16 October 1996 plaintiff notified unnamed defendant in writing of a UIM claim. Plaintiff argues he is entitled to UIM coverage under three policies issued by Farm Bureau. Farm Bureau Policy No. AP 3725121 is issued to plaintiff’s parents. Farm Bureau Policy Nos. BAP 2040951 and AP 3915189 are issued to BFT. All three provide UIM coverage. Farm Bureau does not dispute coverage under Policy No. AP 3725121, however it denies coverage under policy Nos. BAP 2040951 and AP 3915189 on the basis [645]*645that plaintiff is not a family member of BFT and was not in a covered auto at the time of the accident.

The UIM coverage provisions of the Farm Bureau policy allow insureds to recover for personal injuries, defining “insured” as:

1. You or any family member.
2. Any other person occupying:
a. your covered auto; or
b. any other auto operated by you.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person listed in 1. or 2. above.

Farm Bureau argues that since the insured in these two policies is BFT, and plaintiff was not in a covered auto, plaintiffs injuries are not covered. Farm Bureau relies on Busby v. Simmons, 103 N.C. App. 592, 406 S.E.2d 628 (1991) and Stockton v. N.C. Farm Bureau, 139 N.C. App. 196, 532 S.E.2d 566, disc. rev. denied, 352 N.C. 683, 545 S.E.2d 727 (2000), in support of this position. In Busby, the policy covered a sub-chapter S corporation’s vehicles. The corporation was owned 2/3 by the plaintiff and 1/3 by plaintiffs father. The Busby plaintiff was not in a covered auto at the time of the accident. This Court held that “named insured” did not include “officers, directors or stockholders of a corporation when the named insured is a corporation.” Busby, 103 N.C. App. at 596, 406 S.E.2d at 630. In Stockton, the named insured was “Oak Farm.” Stockton, 139 N.C. App. at 197, 532 S.E.2d at 567. “Oak Farm” is the name of an unincorporated piece of land. Id. at 200, 532 S.E.2d at 568. A family lives on it and farms it, but Oak Farm is not a separate legal entity and has no independent legal existence. Id. This Court held that Oak Farm was indistinguishable from the owners of Oak Farm and concluded that UIM coverage was available for family members of Oak Farm’s owners even though they were not injured in a covered vehicle. Id. Farm Bureau argues that if the named insured, unlike Stockton, has a legally independent existence and is not an individual, then there can be no coverage for insureds not actually occupying a covered automobile. Farm Bureau reasons that since there is a trust document for BFT and trusts are recognized as legal entities, then insureds of BFT not in a covered automobile, such as plaintiff, are not entitled to UIM coverage under those policies. As applied in the context of family farms, we disagree.

[646]*646I. Legislative Treatment of Family Farms A. Taxation

The United States Congress has recognized the special problems facing a family farmer and efforts to preserve the family farm for future generations. Chapter 11 of the Internal Revenue Code (Estate Tax) allows for present use valuation of lands used in a farming enterprise. 26 U.S.C.A. § 2032A. “The statute is designed to encourage the continued use of real property for farming . . . Smoot v. Commissioner of Internal Revenue, 1987 WL 49387 (C.D.Ill. 1987). Because the fair market value of property represents the “highest and best use” to which the property could be used, rather than the current use, families are often forced to sell farms in order to pay estate taxes. Smoot v. U.S., 892 F.2d 597, 600 (1989). Congress permits complying farms to be valued according to their present use which is often much lower than their fair market value. Id. “Congress ‘intended to preserve the family farm . . ., [a] very important American institution[s], both economically and culturally.’ ” Id., 1976 Ways and Means Report at 5, 1976 U.S. Code Cong. & Admin.News at 3359. Our General Assembly also recognizes the importance of maintaining the family farm, whatever legal entity it assumes. In In re Appeal of ELE Inc., 97 N.C. App. 253, 388 S.E.2d 241 (1990), this Court upheld the intention of the General Assembly to preferentially treat certain agricultural lands for purposes of property taxation. Id. at 257, 388 S.E.2d at 244.

As originally written, the present use valuation was available only for land owned by individuals, which was defined in the statute as being a natural person or persons and not a corporation. In 1975, the legislature expanded the definition of “individually owned” property to include property owned by a corporation having as its principal business one of the specified activities and whose shareholders are natural persons actively engaged in such activities or the relatives of such persons. Thus “family corporations” involved in farming were permitted to qualify for present use valuation. The legislation authorizing these family corporations to qualify for preferential treatment was enacted at a time when farm families were advised to incorporate for estate planning purposes.

Id. (citation omitted). The current statute authorizing present use valuation has further expanded the definition of an “individually owned” farm to include family trusts.

[647]*647(4) Individually owned. — Owned by one of the following:
(c) A trust that was created by a natural person who transferred the land to the trust and each of whose beneficiaries who is currently entitled to receive income or principal meets one of the following conditions:
1. Is the creator of the trust or the creator’s relative.
2. Is a second trust whose beneficiaries who are currently entitled to receive income or principal are all either the creator of the first trust or the creator’s relatives.

G.S. § 105-277.2(4)(c) (1996).

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Related

Erwin v. Tweed
583 S.E.2d 717 (Court of Appeals of North Carolina, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
544 S.E.2d 803, 142 N.C. App. 643, 2001 N.C. App. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erwin-v-tweed-ncctapp-2001.