Moore v. Hartford Fire Ins. Co. Group

• Decision Date: 20 June 1967
• Docket Number: No. 603,603
• Citation: 270 N.C. 532,155 S.E.2d 128
• Parties: George M. MOORE, Administrator v. HARTFORD FIRE INSURANCE COMPANY GROUP, Hartford Fire Insurance Company,Hartford Accident and Indemnity Company.
• Court: North Carolina Supreme Court

Page 128

155 S.E.2d 128

270 N.C. 532

George M. MOORE, Administrator v. HARTFORD FIRE INSURANCE COMPANY GROUP, Hartford Fire Insurance Company,Hartford Accident and Indemnity Company.

No. 603.

Supreme Court of North Carolina.

June 20, 1967.

S. H. McCall, Jr., Troy, and W. Kenneth Hinton, Smithfield, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Ralph M. Stockton, Jr., and J. Robert Elster, Winston Salem, for defendant appellees.

PARKER, Chief Justice.

G.S. § 20--279.21(b)(3) provides, Inter alia, that

'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 * * *.'

Subsection (c) of G.S. § 20--279.5 provides that the minimum amount of such insurance must be $5,000, exclusive of interest and cost, of bodily injury to or death of one person in any one accident, and $10,000 for bodily injury to or death of two or more persons in any one accident.

Farther on G.S. § 20--279.21(b)(3) states:

'In the event of payment to any person under the coverage required by this section and subject to the terms and conditions or such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement for judgment resulting from the exercise of any limits of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.'

G.S. § 20--279.21(f) provides, Inter alia:

'Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein: (1) The liability of the insurance carrier with respect to the insurance required by this article shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs * * *.'

The Court said in Buck v. United States Fidelity & Guaranty Co., 265 N.C. 285, 144 S.E.2d 34:

'G.S. 20--279.21(b)(3) was enacted as Chapter 640, Session Laws of 1961, entitled 'An Act to amend G.S. 20--279.21 defining motor vehicle liability insurance policy for financial responsibility purposes so as to include protection against Uninsured motorists.' (Our italics.)'

Our uninsured motorist statute was enacted by the General Assembly as a result of public concern over the increasingly important problem arising from property damage, personal injury, and death inflicted by motorists who are uninsured and financially irresponsible. Its purpose was to provide, within fixed limits, some financial recompense to innocent persons who receive bodily injury or property damage, and to the dependents of those who lose their lives through the wrongful conduct of an uninsured motorist who cannot be made to respond in damages. A compulsory motor vehicle insurance act is a remedial statute and will be liberally construed so that the beneficial purpose intended by its enactment by the General Assembly may be accomplished. 7 Am.Jur.2d, Automobile Insurance § 6.

'In North Carolina today all insurance policies covering loss from liability arising out of the ownership, maintenance, or use of a motor vehicle are, to the extent required by G.S. § 20--279.21, mandatory.' Nationwide Mutual Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654.

The specific question for decision is this: May Hartford Accident and Indemnity Company, an automobile liability insurance carrier, providing coverage against bodily injury or death in accord with the mandatory requirements of G.S. § 20--279.21, after accepting a premium for such coverage, deny coverage on the ground that the insured has other similar insurance available to him?

The State of Virginia has a statute substantially similar to our G.S. § 20--279.21. We summarize the facts in Bryant v. State Farm Mutual Automobile Insurance Co., 205 Va. 897, 140 S.E.2d 817, from the statement of facts in the opinion as follows: Plaintiff while driving a Ford truck, belonging to his father, was negligently injured by an uninsured motor vehicle being driven by 'W.' He brought suit against the driver and owner of the vehicle, and recovered a judgment against them for $85,000. At the time of the accident, plaintiff was insured under the terms of a bodily injury liability insurance policy issued by State Farm to his father, which covered his car 'and any other person while occupying the insured motor vehicle,' and he was also the named insured in a bodily injury liability insurance policy issued to him by State Farm. Each policy had a limit of $10,000 for each person injured. State Farm acknowledged liability on its policy issued to his father and paid plaintiff $10,059 on his $85,000 judgment in settlement of all claims of plaintiff under his father's policy. Action was brought by plaintiff to recover on the policy issued to him by State Farm. State Farm, his insurer, denied liability, relying upon substantially the exact language of the 'other insurance' clause which is involved in the present case. The lower court held for State Farm and the Supreme Court of Appeals of Virginia reversed, and granted to the plaintiff judgment against the defendant for $10,000 with interest. The Virginia Court stated in substance, except when quoted: That the 'controlling instrument is the statute and that provisions in the insurance policy that conflict with the requirements of the statute, either by adding to or taking from its requirements, are void and ineffective.' Section 38.1--381(b), Code of Virginia (1964 Cum.Supp.), requires all automobile liability insurance policies issued in the State to include an endorsement undertaking 'to pay the insured All sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.' (Emphasis ours). The Virginia Court held that the 'other insurance' clause, approved by the Virginia State Corporation Commission, was in derogation of the requirement of the statute and, therefore, of no effect.

Defendant in its brief relies upon and quotes at length from the case of 'United States Fidelity and Guaranty Co. v. Sellers, 185 So.2d 689 (Fla., 1965).' The citation is wrong. It should be 179 So.2d 608. The decision in 179 So.2d 608, from which the brief quotes extensively, was rendered by the District Court of Appeals of Florida, First District, on 4 November 1965. The Supreme Court of Florida on appeal reversed the judgment of the District Court of Appeals, First District, 179 So.2d 608, in a decision rendered on 20 April 1966, rehearing denied 17 May 1966, and this case is reported under the name of Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689. The extensive quotation in defendant's brief from the opinion rendered by the District Court of Appeals of Florida does not appear in the opinion rendered in the same case by the Supreme Court of Florida. The Supreme Court of Florida after reviewing the Bryant case from Virginia, stated:

'Both the Virginia statute and the Florida statute contain subrogation clauses providing that an insurer making payments under its uninsured motorist coverage is entitled to the proceeds of any recovery against the uninsured motorist or any other person or organization legally responsible for the injury by the insured, at least to the extent of the insurer's payment. Section 627.0851(4), Florida Statutes, F.S.A.; Section 38.1--381(f), Code of Virginia (1964 Cum.Supp.).'

The Court held, as correctly summarized in the following headnotes in the opinion reported in 185 So.2d 689:

'1. Automobile liability carrier providing coverage against injury by an uninsured motorist in accord with requirements of statute, after accepting premium for such coverage, may not deny coverage on ground that insured has other similar insurance available to him. F.S.A. §§ 324.021(7), 627.0851 and (4).

'2. Statutes requiring automobile liability policy to include uninsured motorist protection invalidated condition in automobile liability policy providing uninsured motorist coverage but attempting to limit insurer's liability through other insurance, excess-escape or pro rata clauses. F.S.A. § 324.021(7), 627.0851 and (4).

'3. Statute requiring uninsured motorist provision in automobile liability policies does not permit insured to pyramid coverages under separate automobile liability policies so as to recover more than his actual bodily injury loss or damage, but if he is beneficiary of more than one policy, he may recover maximum allowed under each policy to extent of his loss or, if his loss is more than limit but less than sum of limits of multiple policies protecting him proration among insurers would be in order. F.S.A. § 627.0851(4).

'4. Insured protected by multiple policies containing uninsured motorist provision can proceed against any one or more of insurers, but in any event he shall not be entitled to recover from all of them more than amount of his loss and bodily injury caused by an uninsured motorist and his recovery from any one of them shall be within limits of the particular policy. F.S.A. § 627.0851.'

The Supreme Court of Florida further stated in its opinion:

'Hypothetical situations under standard Condition 5 were discussed by Mr. Norman Broad in a note found in University of Florida Law Review, Volume XIV, No. 4, page 455. He concludes that 'Courts attempting to reconcile conflicting 'other insurance' provisions will always disappoint the contractual expectations of at least one insuring company.' After exhaustive analysis of the subject, he concludes that the fairest solution would be to void these clauses as...