Hendricks v. U.S. Fidelity & Guaranty Co., 697SC228

• Decision Date: 18 June 1969
• Docket Number: No. 697SC228,697SC228
• Parties: Frances HENDRICKS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
• Court: North Carolina Court of Appeals

Page 876

167 S.E.2d 876

5 N.C.App. 181

Frances HENDRICKS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

No. 697SC228.

Court of Appeals of North Carolina.

June 18, 1969.

Certiorari Denied Aug. 29, 1969.

Thorp & Etheridge by William D. Etheridge and Stephen E. Culbreth, Rocky Mount, for plaintiff appellant.

Don Evans, Rocky Mount, for defendant appellee.

BRITT, Judge.

In their brief, plaintiff's counsel state the issue presented on this appeal as follows: 'Under North Carolina uninsured motorist law applicable to a policy of uninsured motorist insurance issued in this State February 16, 1968, does the absence of physical contact by the vehicle operated by an insured under such policy with the vehicle of an unknown 'hit-and-run' motorist preclude recovery against the insurer for loss to the insured proximately resulting from the negligence of the unknown motorist?' Our answer is yes.

The policy definition of uninsured automobile incorporates the definition of hit-and-run automobile, which is as follows:

'(d) Hit-and-Run Automobile. The term 'hit-and-run automobile' means an automobile, other than one in which an Insured is a passenger, which causes an accident resulting in bodily injury to an Insured, Arising out of physical contact of such vehicle with the Insured or with a vehicle which the Insured is occupying at the time of the accident, * * *.' (Emphasis ours)

Despite the policy exclusion of injury occurring in the absence of contact, it is established in this State that '(w)here a statute is applicable to a policy of insurance, the provisions of the statute enter into and form a part of the policy to the same extent as if they were actually written in it. In case a provision of the policy conflicts with a provision of the statute favorable to the insured, the provision of the statute controls.' Wright v. Fidelity & Casualty Co. and Wright v. Liberty Mutual Insurance Co., 270 N.C. 577, 155 S.E.2d 100; Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S.E.2d 610. See also Moore v. Hartford Fire Insurance Co., 270 N.C. 532, 155 S.E.2d 128.

The applicable statute here is G.S. § 20--279.21(b)(3) which provides:

'(3) No policy of bodily injury liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of § 20--279.5, under provisions filed with and approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles And hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. * * * (Emphasis ours)

In addition to the above requirements relating to uninsured motorist insurance, every policy of bodily injury liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle, which policy is delivered or issued for delivery in this State shall be subject to the following provisions which need not be contained therein.

a. A provision that the insurer shall be bound by a final judgment taken by the insured against an uninsured motorist if the insurer has been served with copy of summons, complaint or other process in the action against the uninsured motorist in any manner provided...