Liberty Mut. Ins. Co. v. Ditillo

• Decision Date: 01 April 1997
• Docket Number: No. COA96-487,COA96-487
• Citation: 125 N.C.App. 701,482 S.E.2d 743
• Court: North Carolina Court of Appeals
• Parties: LIBERTY MUTUAL INSURANCE COMPANY and State Farm Mutual Automobile Insurance Company, Plaintiffs, v. Patricia E. DITILLO, Executrix of the Estate of John Joseph Ditillo; Paula C. Burgoon, Administratrix of the Estate of Ralph Jean Clark; Donna T. Stilwell, Administratrix of the Estate of Charles Bruce Stilwell; Reliance Insurance Company; and Day & Zimmerman, Inc., Defendants.

Page 743

482 S.E.2d 743

125 N.C.App. 701

LIBERTY MUTUAL INSURANCE COMPANY and State Farm Mutual Automobile Insurance Company, Plaintiffs, v. Patricia E. DITILLO, Executrix of the Estate of John Joseph Ditillo; Paula C. Burgoon, Administratrix of the Estate of Ralph Jean Clark; Donna T. Stilwell, Administratrix of the Estate of Charles Bruce Stilwell; Reliance Insurance Company; and Day & Zimmerman, Inc., Defendants.

No. COA96-487.

Court of Appeals of North Carolina.

April 1, 1997.

Dean & Gibson, L.L.P. by Rodney Dean and D. Christopher Osborn, Charlotte, for plaintiff-appellee Liberty Mutual Insurance Company.

Golding, Meekins, Holden, Cosper & Stiles, L.L.P. by Harvey L. Cosper, Jr. and Scott A. Beckey, Charlotte, for plaintiff-appellee State Farm Mutual Automobile Insurance Company.

Kennedy, Covington, Lobdell & Hickman by Wayne Huckel, Charlotte, for defendant-appellant Reliance Insurance Company and Day & Zimmerman, Inc.

J. Jerome Miller, Charlotte, for defendant-appellant Patricia E. Ditillo.

John E. Hodge, Jr., Charlotte, for defendant-appellant Donna T. Stilwell.

Ronald H. Cox, Monroe, for defendant-appellant Paula C. Burgoon.

EAGLES, Judge.

We note that Reliance failed to file their notice of appeal within thirty days from the judgment as required by N.C.R.App. P. 3. However, in our discretion and pursuant to N.C.R.App. P. 2, 21, we treat Reliance's appeal as a petition for writ of certiorari and allow the petition in the interest of justice.

We first consider whether the trial court erred in its conclusion that defendant-employees' potential uninsured motorist benefits were subject to a lien in favor of the workers' compensation carrier, Reliance, pursuant to G.S. 97-10.2. While applying G.S. 97-10.2, decisions in North Carolina have consistently upheld the workers' compensation carrier's right to a lien on uninsured motorist benefits paid to the employee by or on behalf of a third party as a result of the employee's injury. Creed v. R.G. Swaim & Son, 123 N.C.App. 124, 472 S.E.2d 213 (1996); Martinez v. Lovette, 121 N.C.App. 712, 468 S.E.2d 251 (1996); Bailey v. Nationwide Mutual Ins. Co., 112 N.C.App. 47, 434 S.E.2d 625 (1993); Ohio Casualty Group v. Owens, 99 N.C.App. 131, 392 S.E.2d 647, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990). Defendant-employees here have advanced no new arguments or authorities. Accordingly, we respectfully decline to address this issue again here and conclude that the workers' compensation carrier, Reliance, has a right to a lien on employee-defendants' potential uninsured motorist benefits.

We next consider whether the trial court correctly concluded that the limitations and exclusions of the Liberty Mutual and State Farm policies denying uninsured motorist coverage are enforceable against employee-defendants. The estates of Stilwell, Ditillo and Clark contest the enforceability of the limitations and exclusions of the Liberty Mutual policy, only the Clark estate contests the enforceability of the limitations and exclusions of the State Farm policy. However, because the provisions at issue of the State Farm and Liberty Mutual policies are identical, we will discuss them together.

The uninsured motorist limitation of liability provision provides,

Any amount otherwise payable for damages under this coverage shall be reduced by all sums:

....

2. Paid or payable because of the bodily injury under any of the following or similar law:

a. workers' compensation law;....

Similarly, the exclusionary provision provides:

C. This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law:

1. workers' compensation law;....

In essence, both of these provisions deny coverage to the extent that coverage may benefit a workers' compensation carrier. Plaintiffs attempt to distinguish the application of appellate decisions on the grounds that one provision is a limitation of liability and the other is an exclusion; however, we treat them the same because they have the same practical effect. Moreover, even though the exclusionary language above has not previously been brought to the attention of this court, the exclusionary language did exist in policies where this Court previously has addressed the enforceability of identical limitation of liability provisions. See Bailey v. Nationwide Mutual Ins. Co., 112 N.C.App. 47, 54-55, 434 S.E.2d 625, 630 (1993); Hieb v. St. Paul Fire & Marine Ins. Co., 112 N.C.App. 502, 506, 435 S.E.2d 826, 828 (1993).

In our recent decision, McMillian v. N.C. Farm Bureau Mutual Ins. Co., 125 N.C.App. 247, 480 S.E.2d 437 (1997), this Court encountered an issue almost identical to the one presented here. The McMillian Court found exclusionary language of a private automotive insurance policy that reduced the insured's coverage to the extent that it would benefit a workers' compensation carrier was unenforceable where the exclusionary language conflicted with the Motor Vehicle Safety and Financial Responsibility Act of 1953. See Ohio Casualty Group v. Owens, 99 N.C.App. 131, 133, 392 S.E.2d 647, 649, disc. review denied, 327 N.C. 484, 396 S.E.2d 614 (1990). Relying on one North Carolina Supreme Court decision, Manning v. Fletcher, 324 N.C. 513, 517, 379 S.E.2d 854, 856, reh'g denied, 325 N.C. 277, 384 S.E.2d 517 (1989), and several decisions by this Court, Bailey v. Nationwide Mutual Ins. Co., 112 N.C.App. at 54-55, 434 S.E.2d at 630, Hieb v. St. Paul Fire & Marine Ins. Co., 112 N.C.App. at 506, 435 S.E.2d at 828, Ohio Casualty Group v. Owens, 99 N.C.App. 131, 392 S.E.2d 647, disc. review denied,327 N.C. 484, 396 S.E.2d 614 (1990), Sproles v. Greene, 100 N.C.App. 96, 105-07, 394 S.E.2d 691, 697-98 (1990), reversed in part on other grounds,329 N.C. 603, 407 S.E.2d 497 (1991), the McMillian Court reasoned that because (1) the uninsured motorist policies are personal automobile policies not purchased by the employer, (2) the insureds will not obtain a double recovery, and (3) the worker's compensation policy and uninsured motorist policy are not issued by the same entity, the insureds were entitled to recover the uninsured motorist policy limits despite policy provisions denying coverage to the extent any proceeds would benefit a workers' compensation carrier. 125 N.C.App. at ----, 480 S.E.2d at 440-41. However, the McMillian Court did not encounter the same arguments presented here.

The estates of Ditillo and Clark argue that the trial court erred in concluding that Ditillo and Clark did not meet the definition of a person for whom the Motor Vehicle Safety and Financial Responsibility Act would require coverage beyond the terms of the policy. The Ditillo and Clark estates contend that the Financial Responsibility Act does apply to them, and therefore, because the provisions of the Financial Responsibility Act conflict with the limitations and exclusions of the Liberty Mutual policy, they are entitled to recover. See Ohio Casualty Group, 99 N.C.App. at 133, 392 S.E.2d at 649.

In order for the Financial Responsibility Act to apply to the Ditillo and Clark estates under the Liberty Mutual policy they must be "persons insured" for purposes of the act. G.S. 20-279.21(b)(3) (1993) provides:

For purposes of this section "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.

As the North Carolina Supreme Court explained in Smith v. Nationwide, 328 N.C. 139, 143, 400 S.E.2d 44, 47 (1991) a "person insured" pursuant to G.S. 20-279.21(b)(3) is divided into two classes:

"In essence, N.C. Gen.Stat. 20-279.21(b)(3) establishes 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." Members of the second class are "persons insured" for the purposes of UM and UIM coverage only when the insured vehicle is involved in the insured's injuries. Members of the first class are "persons insured" even where the insured vehicle is not involved in the insured's injuries.

328 N.C. at 143, 400 S.E.2d at 47 (quoting Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C.App. 551, 554, 340 S.E.2d 127, 130, disc. rev. denied, 316 N.C. 731, 345 S.E.2d 387 (1986)) (citations omitted). While Stilwell and Clark fit into the first class of persons insured with regard to their respective policies, Ditillo and Clark do not fit into either class of "persons insured" with regard to the Liberty Mutual policy pursuant to G.S. 20-279.21(b)(3). Ditillo and Clark were neither named insureds on the Liberty Mutual policy, residents of the Stilwell household, nor passengers in any vehicle insured by the Liberty Mutual policy. The vehicle in which Stilwell, Ditillo and Clark were riding at the time of the accident was a rental car provided by Day & Zimmerman for a company business trip and was not listed as an insured vehicle on the declarations page of the Liberty Mutual policy. Accordingly, we hold the trial court correctly concluded that the Financial Responsibility Act did not apply to Ditillo and Clark under the Liberty Mutual policy, and therefore, the provisions of the Liberty Mutual policy limiting and excluding coverage to the extent a workers' compensation carrier would benefit were enforceable.

With regard to Stilwell and Clark as first class insureds under their respective policies, plaintiffs argue that to the extent the...