Nationwide Mutual Insurance v. Davis

455 S.E.2d 892, 118 N.C. App. 494, 1995 N.C. App. LEXIS 304
CourtCourt of Appeals of North Carolina
DecidedApril 18, 1995
Docket9410SC632
StatusPublished
Cited by28 cases

This text of 455 S.E.2d 892 (Nationwide Mutual Insurance v. Davis) 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
Nationwide Mutual Insurance v. Davis, 455 S.E.2d 892, 118 N.C. App. 494, 1995 N.C. App. LEXIS 304 (N.C. Ct. App. 1995).

Opinion

WALKER, Judge.

In this action plaintiffs seek a declaration of the rights of plaintiffs and defendants under two insurance policies. Specifically, plaintiffs seek a declaration that one but not both of the policies provides coverage for an accident that occurred on 15 August 1990.

On 26 August 1993, plaintiffs filed a motion for judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c). On 18 October 1993, defendants filed a corresponding motion. Thereafter, the court entered an order denying plaintiffs’ motion for judgment on the pleadings and granting defendants’ corresponding motion.

The parties stipulated to the following pertinent facts: On 15 August 1990, six-year-old Tiffany Diane Matthews, a pedestrian, was struck by a truck operated by Michael Sain. Immediately before the accident, Tiffany had been a passenger in a van driven by defendant Artie Davis, her grandmother. Ms. Davis had parked the van near the Cat Square Superette and turned off the motor. Ms. Davis exited the *496 van and started walking toward the Superette. Tiffany then called to Ms: Davis and asked her if she could come in and get some ice cream. When Ms. Davis told her that she could, Tiffany got out of the passenger side of the van, walked around the van, and walked into the one-lane roadway separating the van and the store. Tiffany was then struck by the truck operated by Mr. Sain.

Tiffany and her father, defendant Kenneth Matthews, filed an action alleging negligence and seeking damages from Ms. Davis, Mr. Sain, and Sain & Sain Trucking Company (the tort action). At the time of the accident, Mr. Davis maintained a motor vehicle liability policy issued by Nationwide (the auto policy) which provided liability coverage in the amount of $100,000 per person/$300,000 per accident. Mr. Davis also maintained a homeowner’s insurance policy issued by Nationwide Fire (the homeowner’s policy) which provided personal liability coverage in the amount of $100,000 for each occurrence.

The tort action was settled on 3 December 1992 when Tiffany’s guardian ad litem Donald Bumgardner, Mr. Matthews, Ms. Davis, Mr. Sain, Nationwide, and Nationwide Fire entered into a consent judgment approving settlement. Pursuant to the parties’ agreement, the claim against Mr. Sain was settled for $25,000; the claim against Ms. Davis was settled for $150,000 and Ms. Davis was released; $100,000 was paid to the plaintiffs by Nationwide; and it was stipulated that the instant action would determine whether there was coverage under both policies.

The issue to be determined is whether the auto policy, the homeowner’s policy, both policies, or neither policy provide(s) coverage for the injuries and damages sustained by Tiffany in the accident. If both policies provide coverage, Nationwide and Nationwide Fire would be obligated to pay an additional $50,000 to the plaintiffs in the tort action. If only one or neither of the policies provides coverage, the plaintiffs in the tort action would be limited to the $100,000 already received from Nationwide for the claim against Ms. Davis.

We note at the outset that each insurance policy is a separate contract for which Mr. Davis has paid a separate premium. As such, each contract “must be interpreted in accordance with its own terms and using the applicable rules of construction. . . .” State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 547, 350 S.E.2d 66, 74 (1986). We therefore must look at each policy separately to determine whether it provides coverage for the accident.

*497 We first examine the auto policy, keeping in mind the rule of construction 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, supra, at 538, 350 S.E.2d at 68.

The Davis’ auto policy provides liability coverage to Ms. Davis “for the ownership, maintenance or use” of the vehicle. Under the facts of this case, the issue is whether at the time of the accident the van was in “use.” Plaintiffs contend that since Ms. Davis was not driving the van or otherwise operating it at the time of the accident, the van was not in “use” and there is no coverage under the policy. However, North Carolina courts have recognized that liberally construed, the term “use” may refer to more than the actual driving or operation of a vehicle. For example, in Whisnant v. Insurance Co., 264 N.C. 303, 141 S.E.2d 502 (1965), plaintiff was struck by a passing car as he attempted to push the disabled vehicle he had been driving onto the shoulder of the road. Id. at 308, 141 S.E.2d at 506. Our Supreme Court held that for purposes of a medical payments provision in an automobile insurance policy maintained by the owner of the disabled vehicle, the plaintiff was “using” the vehicle at the time he was injured. Id. The Court recognized that a person “uses” a vehicle when he uses it for the purpose of transportation to a destination. Id. at 308, 141 S.E.2d at 505 (citing with approval Madden v. Farm Bureau Mut. Auto. Ins. Co., 79 N.E.2d 586 (Ohio App. 1948)).

In Leonard v. N.C. Farm Bureau Mut. Ins. Co., 104 N.C. App. 665, 411 S.E.2d 178 (1991), rev’d on other grounds, 332 N.C. 656, 423 S.E.2d 71 (1992), involving the term “use” as it related to an underin-sured motorist provision, this Court adopted the ordinary meaning of the word “use” — “ ‘to put into action or service],] ... to carry out a purpose or action by means of[, or] . . . [to] make instrumental to an end or process. . . .’ ” Id. at 671, 411 S.E.2d at 181-82 (quoting Webster’s Third New International Dictionary 2523-24 (1968)). The Court held that the plaintiff, who was injured while changing a flat tire, was “using” the vehicle as he “was purposefully using the van as his means of transportation to his job. . . .” Id. at 672, 411 S.E.2d at 182.

Our Courts have also held that a person “uses” a motor vehicle when loading and unloading it, even if that person is not the named insured, Casualty Co. v. Insurance Co., 16 N.C. App. 194, 199, 192 S.E.2d 113, 118, cert. denied, 282 N.C. 425, 192 S.E.2d 840 (1972), and *498 that a hunter “uses” a motor vehicle while hunting when he reaches into it to get a rifle, State Capital, supra, at 540, 350 S.E.2d at 70.

In State Capital, our Supreme Court noted that the provisions of N.C. Gen. Stat. § 20-279.21 et. seq.,

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455 S.E.2d 892, 118 N.C. App. 494, 1995 N.C. App. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-insurance-v-davis-ncctapp-1995.