Busby v. Simmons

• Decision Date: 06 August 1991
• Docket Number: No. 9010SC1196,9010SC1196
• Citation: 103 N.C.App. 592,406 S.E.2d 628
• Court: North Carolina Court of Appeals
• Parties: Cathy Elaine BUSBY, Plaintiff, v. Mark Anthony SIMMONS, Defendant.

Page 628

406 S.E.2d 628

103 N.C.App. 592

Cathy Elaine BUSBY, Plaintiff, v. Mark Anthony SIMMONS, Defendant.

No. 9010SC1196.

Court of Appeals of North Carolina.

Aug. 6, 1991.

Young, Moore, Henderson & Alvis, P.A. by Johnny S. Gaskins, Raleigh, for plaintiff-appellant.

DeBank, McDaniel, Holbrook & Anderson by Douglas F. DeBank, Raleigh, for unnamed defendant-appellee.

ORR, Judge.

The sole issue on appeal is whether the trial court erred in granting summary judgment in State Farm's favor. For the following reasons, we hold that the trial court did not err and affirm the order of 6 September 1990.

Under N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990), summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." This remedy permits the trial court to decide whether a genuine issue of material fact exists; it does not allow the court to decide an issue of fact. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C.App. 533, 535, 303 S.E.2d 358, 360 (1983) (citations omitted).

In a summary judgment proceeding, the trial court must view all evidence presented in the light most favorable to the nonmoving party and determine if there is a triable material issue of fact. Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C.App. 85, 336 S.E.2d 653 (1985), disc. review denied, 316 N.C. 553, 344 S.E.2d 7 (1986); Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). A defendant is entitled to summary judgment if he establishes that no claim for relief exists or that the plaintiff cannot overcome an affirmative defense. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C.App. 213, 341 S.E.2d 61 (1986) (citation omitted).

In the present case, the evidence, viewed in the light most favorable to plaintiff, tends to show that plaintiff owns two-thirds of the stock in Capital. At the time of the accident in question, the corporation owned two automobiles--a 1987 Toyota and a 1988 Mazda. Plaintiff had exclusive business and personal use of the 1988 Mazda and did not use any other vehicle registered in her name. The Mazda was registered in the name of the corporation and not in plaintiff's name "to take advantage of certain tax benefits." Plaintiff reimbursed Capital approximately $3,000.00 per year for the personal use of the vehicle.

State Farm provided insurance on these vehicles with the insurance policy being issued in the corporate name. The insurance agent involved in issuing the policies advised plaintiff's father that by adding plaintiff as an insured driver, plaintiff would have all of the benefits under the policy available to an individual. Plaintiff's father intended that plaintiff receive all of the benefits which "could have been available to them if they had registered their own personal vehicles in their personal names and obtained liability insurance in their personal names," including uninsured/underinsured motorist benefits under the policy. The named insured, however, remained in Capital's name at all times pertinent to this action.

At the time of the accident, plaintiff was riding her bicycle and was not engaged in any activity on behalf of the corporation or acting in an official capacity. Plaintiff subsequently filed a claim for underinsured motorist coverage benefits for injuries sustained in the accident pursuant to the policy on the 1988 Mazda. State Farm declined to extend such benefits because plaintiff was not the named insured on the policy and she was not occupying the insured automobile or any other automobile at the time of the accident as required by the policy. Based upon these facts, the trial court granted summary judgment in State Farm's favor.

The insurance policy in question provides uninsured (or underinsured) motorists coverage for an "insured."

"Insured " as used in this Part [C] means:

1. You or any family member.

2. Any other person occupying:

a. your covered auto; or

b. any other auto operated by you.

(Emphasis in the original.)

Throughout the policy, "you" is referred to as the named insured in the "Declarations." In the present case, the named insured on the Declarations page is Capital Physical Therapy, Inc. Plaintiff's name appears only as a named driver and person insured for coverage. Her name does not appear anywhere as a named insured.

Plaintiff maintains that because she is an insured driver and the major stockholder in the corporation, she is the same as the corporation (the named insured), and therefore is entitled to underinsured coverage under subsection 1 above. Defendant argues that subsection 1 applies only to the named insured (the corporation itself), therefore placing plaintiff in subsection 2, which requires that she occupy a vehicle to recover her underinsured motorist benefits under the policy. Defendant asserts that because plaintiff was riding a bicycle and not occupying a covered auto or operating any other auto, she may not recover these benefits.

In Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 142, 400 S.E.2d 44, 47, reh'g denied, 328 N.C. 577, 403 S.E.2d 514 (1991), our Supreme Court stated that, "[w]hen examining cases to determine whether insurance coverage is provided by a particular automobile liability insurance policy, careful attention must be given to the type of coverage, the relevant statutory provisions, and the terms of the policy." The type of coverage involved in the present case is underinsured motorist coverage (UIM), and the relevant statute is N.C.Gen.Stat. § 20-279.21(b)(4), which incorporates the definition of "persons insured" under § 20-279.21(b)(3). "Persons insured" means

the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above or any other person or persons in lawful possession of such motor vehicle.

N.C.Gen.Stat. § 20-279.21(b)(3) (1983).

Under this statute, there are two classes of "persons insured":

(1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle.

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