Cartner v. Nationwide Mut. Fire Ins. Co.
| Decision Date | 16 July 1996 |
| Docket Number | No. COA95-1092,COA95-1092 |
| Citation | 123 N.C.App. 251,472 S.E.2d 389 |
| Court | North Carolina Court of Appeals |
| Parties | David CARTNER, Ancillary Administrator of the Estate of Dianne Arthur, Plaintiff-Appellee, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant. |
Elmore, Elmore & Williams, P.A. by Bruce A. Elmore, Jr. and Cynthia L. Cooke, Asheville, for plaintiff-appellee.
Ball Barden Contrivo & Bell, P.A., by Frank J. Contrivo and Benjamin R. Olinger, Jr., Asheville, for defendant-appellant.
On 5 June 1994, plaintiff's decedent, Dianne Arthur, was killed when the vehicle in which she was a passenger went out of control on a rural road in Haywood County, North Carolina. At the time of the accident, the vehicle was being driven by Dianne Arthur's husband, Jerome S. Arthur. Plaintiff filed an action for a declaratory judgment holding defendant liable to Dianne Arthur's estate under an insurance policy covering the vehicle. Defendant admitted that the accident was the direct and proximate result of the negligence of Jerome Arthur, but denied liability to Dianne Arthur's estate under the policy. Both parties moved for summary judgment. On 1 September 1995, the trial court entered a declaratory judgment in favor of plaintiff.
The personal motor vehicle liability and automobile insurance policy at issue, Policy # 77 N 557771 (the Policy), was issued to Jerome S. Arthur and Dianne J. Arthur for the period from 2 June 1994 through 1 December 1994. The Policy provided coverage for two separate vehicles, including the automobile involved in the accident which precipitated the instant action. At the time the Policy was issued, the Arthurs were residents of Florida, and the Policy was issued in Florida.
The Policy provided for bodily injury liability coverage of $10,000 for each person or $20,000 for each occurrence. The Policy defined bodily injury to include death. Further, under the "Financial Responsibility" section, the Policy provided:
1. We will adjust the limits of coverages the policyholder has purchased to comply with the financial responsibility law of any state or province which requires higher limits.
2. Also, we will adjust the policy to include the limits and kinds of coverage required of non-residents by any compulsory motor vehicle law or similar law of a state or province other than Florida.
(emphasis added)(hereinafter "the conformity provisions"). The liability section of the Policy also contained a provision excluding coverage for bodily injury to any insured or any member of an insured's family residing in the insured's household (hereinafter "the family member exclusion").
After making findings consistent with the above facts, the trial court found as follows:
9. That North Carolina General Statute 279.21(b)(2) provides that automobiles operated within the State of North Carolina maintain liability insurance within minimum limits of $25,000 for injury to any one person, and $50,000 for injury to two or more persons injured in any one accident.
10. That nowhere within N.C.G.S. 279.21(b)(2), Article 9A of Chapter 20, the Motor Vehicle Safety and Financial Responsibility Act, nor anywhere else in the General Statutes of North Carolina is it provided that an insurance company may exclude coverage to an insured who is injured through the negligence of a family member while riding in an insured vehicle operated by the family member.
The court then concluded that the Policy provided coverage to the decedent's estate.
The record reflects that although both parties moved for summary judgment, the trial court rendered its judgment based on plaintiff's motion for declaratory judgment under N.C. Gen.Stat. Chapter 1, Article 26. Thus, if the trial court's findings are supported by any competent evidence, they are conclusive on appeal, even if there is evidence which might sustain findings to the contrary. N.C. Gen.Stat. § 1-258 (1983); Nationwide Mutual Insurance Co. v. Allison, 51 N.C.App. 654, 657, 277 S.E.2d 473, 475, review denied, 303 N.C. 315, 281 S.E.2d 652 (1981).
Defendant acknowledges on appeal that, by virtue of the conformity provisions, the Policy's per-person limit of $10,000 for liability would be increased to the North Carolina minimum amount of $25,000 if Dianne Arthur were entitled to liability coverage. However, defendant contends that the family member exclusion contained in the Policy operates to bar liability coverage to Dianne Arthur under the facts of this case. Plaintiff, on the other hand, argues that the conformity provisions of the Policy mandate that defendant provide the "kinds of coverage" required by North Carolina's Financial Responsibility Act (the Act) and that in conforming the Policy to the Act, the family member exclusion is rendered void.
Both parties agree that the Policy's provisions must be construed in accordance with the law of Florida, where the Policy was issued. Roomy v. Allstate Insurance Co., 256 N.C. 318, 322, 123 S.E.2d 817, 820 (1962); Johns v. Automobile Club Ins. Co., 118 N.C.App. 424, 426, 455 S.E.2d 466, 468, review denied, 340 N.C. 568, 460 S.E.2d 318 (1995). Defendant argues that under this rule of lex loci, the only relevant law is Florida law, which has consistently upheld the family member exclusion. In support of this argument, defendant cites the Johns case, where the plaintiffs, who were Tennessee residents related to each other and residing in the same household, were injured in an accident in North Carolina. Johns, 118 N.C.App. at 425, 455 S.E.2d at 467. The plaintiffs' Tennessee insurance policies contained family member exclusions, and the defendants denied coverage. Id. at 425-26, 455 S.E.2d at 467-68. Following the principle of lex loci, this Court held that Tennessee law should apply and that North Carolina's Financial Responsibility Act did not work to obviate the family member exclusions which had been repeatedly upheld by Tennessee courts. Id. at 428, 455 S.E.2d at 469.
Although Johns correctly applies the principle of lex loci, it does not control the instant case. The Johns decision makes no mention of any conformity clause in the Tennessee policy. With no indication that the Johns court considered such a provision, we differentiate the ruling in Johns. Thus, we are left with the language of the Policy itself, which, by its very terms, requires us to examine North Carolina law to determine the "kinds of coverage" afforded to Dianne Arthur thereunder.
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