Kaska v. Progressive Universal Ins. Co.

• Decision Date: 21 March 2017
• Docket Number: No. COA 16-729,COA 16-729
• Citation: 798 S.E.2d 431 (Table),252 N.C.App. 427
• Court: North Carolina Court of Appeals
• Parties: Steven Andrew KASKA, Plaintiff, v. PROGRESSIVE UNIVERSAL INSURANCE COMPANY and USAA General Indemnity Company, Defendants.

252 N.C.App. 427

798 S.E.2d 431 (Table)

Steven Andrew KASKA, Plaintiff,

v.PROGRESSIVE UNIVERSAL INSURANCE COMPANY and USAA General Indemnity Company, Defendants.

No. COA 16-729

Court of Appeals of North Carolina.

Filed: March 21, 2017

Harvell and Collins, P.A., Morehead City, by Russell C. Alexander and Wesley A. Collins, for Plaintiff-Appellant.

Ennis, Baynard, Morton, Medlin & Brown, P.A., by Donald W. Ennis, for Defendant-Appellee Progressive Universal Insurance Company.

McGEE, Chief Judge.

Steven Andrew Kaska ("Plaintiff") appeals from an order allowing a motion to dismiss as to Progressive Universal Insurance Company ("Defendant"). We affirm.

I. Background

Plaintiff was driving his motorcycle on State Road 1509 in Onslow County on 5 January 2013 when a large truck hauling gravel rounded a curve in the road at excessive speed, crossed the center line, swerved, and dumped gravel on and around Plaintiff. This spray of debris made "direct contact" with Plaintiff and his motorcycle, causing Plaintiff to lose control of the motorcycle and crash it. The truck did not stop, and neither the driver nor the owner of the truck were ever identified. Plaintiff sustained bodily injuries as a result of his motorcycle crash.

At the time of the 5 January 2013 accident ("the accident"), Plaintiff was insured under an automobile liability policy with Defendant, as well as a separate policy with Defendant USAA General Indemnity Company ("USAA General").¹ Plaintiff filed claims with Defendant and USAA General seeking uninsured motorist ("UM") coverage for losses sustained as a result of the accident. Both claims were denied. In a letter to Plaintiff dated 19 May 2014, Defendant explained it was

not denying uninsured motorist coverage. Our position is that uninsured motorist coverage has not been triggered based on the facts presented. Our investigation determined that there was no contact between ... [Plaintiff] and an uninsured motor vehicle.... The statements received indicated that [Plaintiff] may have hit some debris, dust or dirt which may have fallen from the dump truck. The accident report also indicates that there was no contact between the phantom dump truck and [Plaintiff].

Citing precedent of this Court, Defendant concluded that, in order to trigger uninsured motorist coverage, "the [striking] object must be part of the equipment attached to the [hit-and-run] vehicle; it cannot be something falling out of the vehicle."

Plaintiff filed a complaint against Defendant and USAA General on 5 January 2016, alleging claims for breach of contract; breach of fiduciary duty; violation of the North Carolina Motor Vehicle Safety and Financial Responsibility Act; bad faith insurance coverage denial; and unfair and deceptive trade practices. Plaintiff submitted with his complaint an affidavit sworn by Victoria Blevins ("Ms. Blevins"), an alleged eyewitness to the accident. Ms. Blevins stated in her affidavit that she was driving approximately four or five cars behind Plaintiff's motorcycle just before the accident and could easily see Plaintiff's motorcycle; that Plaintiff was traveling no more than thirty-five miles per hour, and slowed down to fifteen or twenty miles per hour as he approached a curve in the road; that a dump truck coming from the opposite direction was traveling at an excessive and unsafe speed as it neared the curve; and that, as a result of its speed, the dump truck "was leaning extensively to the point that [she] thought it would possibly flip over." Ms. Blevins further averred that debris from the dump truck made direct contact with Plaintiff and Plaintiff's motorcycle; that the motorcycle would not have crashed but for the debris hitting it; that Plaintiff was using proper caution and driving safely; that the accident would not have happened if the dump truck had been operating at a reasonable speed; and that it appeared Plaintiff "could not have done anything to avoid the accident."

Defendant filed a motion to dismiss Plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on 16 February 2016. In support of its motion, Defendant contended that "[t]he North Carolina courts have interpreted [the applicable] statute to require physical contact between the vehicle operated by the insured motorist and the vehicle operated by the hit-and-run driver for the uninsured motorist provisions of the statute to apply." Additionally, according to Defendant, its own automobile liability policy "require[d] physical contact (‘hits’) between such vehicles to trigger coverage for an uninsured motorist claim." Defendant maintained that, because Plaintiff's complaint "show[ed] that no physical contact between the vehicles operated by ... Plaintiff and the uninsured, unidentified driver occurred, the face of Plaintiff's complaint reveal[ed] the presence of an insurmountable bar to his requested relief." The trial court allowed Defendant's motion by order entered 20 April 2016, based on the lack of physical contact between Plaintiff's motorcycle and the hit-and-run motor vehicle.² Plaintiff appeals.

II. Motion to Dismiss

Plaintiff contends the trial court erred by dismissing his complaint for failure to state a claim pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). According to Plaintiff, the governing statutory provisions should be construed to provide uninsured motorist coverage in this case. As explained below, we must disagree.

A. Standard of Review

"The only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. The function of a motion to dismiss is to test the law of a claim, not the facts which support it." Feltman v. City of Wilson , 238 N.C. App. 246, 251, 767 S.E.2d 615, 619 (2014) (citation and quotation marks omitted). "The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief. " Craven v. SEIU Cope , 188 N.C. App. 814, 816, 656 S.E.2d 729, 731 (2008) (citation and quotation marks omitted) (emphasis in original).

Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim.

Wells Fargo Bank, N.A. v. Corneal , 238 N.C. App. 192, 195, 767 S.E.2d 374, 377 (2014) (citation and quotation marks omitted). This Court reviews a motion to dismiss pursuant to Rule 12(b)(6) de novo in order to determine "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Harrell v. Bowen , 179 N.C. App. 857, 858, 635 S.E.2d 498, 500 (2006) (citation and quotation marks omitted).

B. Analysis

The North Carolina Motor Vehicle Safety and Financial Responsibility Act ("Financial Responsibility Act" or "FRA"), codified in Chapter 20, Article 9A of our General Statutes, see N.C. Gen. Stat. § 20-279.1 et seq. , "provide[s] protection, within certain limits, to insureds who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles." Dildy v. Insurance Co. , 13 N.C. App. 66, 69, 185 S.E.2d 272, 274 (1971) ; see also Hamilton v. Travelers Indemnity Co. , 77 N.C. App. 318, 321, 335 S.E.2d 228, 230 (1985) ("U[ninsured] M[otorist] coverage was designed by the [L]egislature to provide certain minimum financial protection to persons injured by financially irresponsible motorists." (citation omitted)). Specifically, the purpose of our UM statute "is to provide some financial recompense to innocent persons who receive bodily injury ... due to the negligence of uninsured motorists or those unidentified drivers who leave the scene of an accident, i.e. , those who cannot be made to respond to damages." Williams v. Holsclaw , 128 N.C. App. 205, 213, 495 S.E.2d 166, 171 (1998) (citation omitted). The statute "should be liberally construed to accomplish the beneficial purpose intended by the General Assembly." Id. at 212-13, 495 S.E.2d at 171 ; see also Lunsford v. Mills , 367 N.C. 618, 626, 766 S.E.2d 297, 303 (2014) (concluding "the FRA as a whole ... should be interpreted to provide the innocent victim with the fullest possible protection." (citation and internal quotation marks omitted)). "The provisions of the Financial Responsibility Act are ‘written’ into every automobile liability policy as a matter of law, and, when the terms of [a] policy conflict with the statute, the provisions of the statute will prevail." Insurance Co. v. Chantos , 293 N.C. 431, 441, 238 S.E.2d 597, 604 (1977) (citations omitted).

N.C. Gen. Stat. § 20-279.21(b)(3) b. (2015), which defines "motor vehicle liability policy," provides in part that

[w]here the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as the result of collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, the insured may institute an action directly against the insurer[.]

Plaintiff's appeal concerns this Court's construction of the statutory requirement of a "collision between motor vehicles " in order to trigger uninsured motorist coverage. Plaintiff notes that the term "crash" is defined, for purposes of Chapter 20, as "[a]ny event that results in injury or property damage attributable directly to the motion of a motor vehicle or its load . The terms collision, accident, and crash and their cognates are synonymous." See N.C. Gen. Stat. § 20-4.01(4b) (2015) (emphasis added). Plaintiff contends that because "crash" is statutorily synonymous with "collision," and because "crash" is...