N.C. Farm Bureau Mut. Ins. Co. v. Lanier Law Grp., P.A.
| Decision Date | 01 June 2021 |
| Docket Number | No. COA19-926,COA19-926 |
| Citation | 861 S.E.2d 565 |
| Court | North Carolina Court of Appeals |
| Parties | NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Plaintiff, v. LANIER LAW GROUP, P.A., and Lisa Lanier, Defendants. |
Goldberg Segalla LLP, Greensboro, by David L. Brown and Martha P. Brown, for plaintiff-appellee.
Pinto Coates Kyre & Bowers, PLLC, Greensboro, by Richard L. Pinto and Matthew J. Millisor, for defendants-appellants.
¶ 1 Lanier Law Group, P.A. (LLG) and Lisa Lanier ("Lanier") ("collectively Defendants") appeal from an order entered granting summary judgment to North Carolina Farm Bureau Insurance Company, Inc. ("Plaintiff"). We affirm.
¶ 2 LLG is a North Carolina-chartered professional association law firm, which specializes in representing plaintiffs in personal injury actions. Lanier is President/CEO of LLG and she practices law in North Carolina. Plaintiff is a mutual insurance company organized and existing under the laws of North Carolina.
¶ 3 LLG seeks clients by sending marketing materials to individuals who have been involved in automobile accidents. LLG obtains the names and addresses of the potential clients from the North Carolina Division of Motor Vehicles form DMV-349 accident reports.
¶ 4 LLG purchased three primary business policies and an excess policy from Plaintiff. Lanier individually purchased three homeowners’ policies and a personal umbrella policy from Plaintiff.
¶ 5 LLG, Lanier, and other personal injury lawyers, who also utilize the direct mailing solicitations from DMV-349 accident reports, were named in a class action filed on 27 May 2016 in the United States District Court for the Middle District of North Carolina captioned Garey v. James S. Farrin , Case No. 1:16-cv-00542-LCB-JLW.
¶ 6 The plaintiffs in Garey alleged the defendants, including Defendants herein, obtained and used their "protected personal information" in connection with advertisements for legal services without the consent of the plaintiffs in violation of the Driver's Privacy Protection Act of 1994, 18 U.S.C. § 2721 et seq. ("DPPA").
¶ 7 Allegations in the Garey complaint assert:
¶ 8 Upon cross motions for summary judgment in the underlying case, the United States District Court Judge denied the plaintiffs’ motion for summary judgment and granted defendants’ motion for summary judgment. Garey v. Farrin , 514 F.Supp.3d 784 (M.D.N.C. 2021).
¶ 9 The Garey order and opinion states the plaintiffs were involved in vehicle accidents wherein "local police officers or North Carolina State Highway Patrol troopers investigated and recorded their findings on a standard DMV-349 form that was then provided to the North Carolina Division of Motor Vehicles ("DMV")." Id. at 787. The information was gathered from the individual's driver's license. Id.
¶ 10 The defendants in Garey gathered the information from DMV-349s themselves or they "purchased accident report data aggregated by a third party." Id. Nowhere in plaintiff's pleadings or arguments in Garey did they allege the DMV-349 reports are "motor vehicle records," but "the information included in the report may be traced back to such records and thus fall under the ambit of the DPPA." Id.
¶ 11 "There are no allegations that the accident reports are motor vehicle records under the DPPA nor that the information was obtained from a search of a DMV database." Id. at 796 (internal quotation marks omitted). The plaintiff in Garey did not assert and the District Court Judge did not find any case "where a defendant was adjudged liable as a matter of law for a DPPA violation after obtaining, disclosing, or using personal information that was not gathered directly from a state DMV." Id. (internal quotation marks omitted).
¶ 12 Lanier and LLG tendered the defense of the Garey litigation to Plaintiff under the policies listed above. Plaintiff agreed to defend Defendants under a reservation of rights to later deny indemnity coverage and to withdraw from providing for the defense. During oral argument, Plaintiff's counsel stated Plaintiff would not be seeking a recoupment of costs and fees extended during Defendant's defense of the Garey suit.
¶ 13 Plaintiff commenced this action by filing a declaratory judgment complaint on 2 December 2016 to determine its obligations under the above policies to the Garey suit. On cross-motions for summary judgment, the trial court entered a summary judgment order for Plaintiff on 28 June 2019 finding the Garey suit did not trigger Plaintiff's duty to defend under any of the tendered policies. Defendants timely appealed.
¶ 14 This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b) (2019).
¶ 15 Defendants argue the trial court erred by granting summary judgment for Plaintiff and assert, at minimum, there is a duty to defend under the LLG excess policy.
¶ 16 North Carolina Rule of Civil Procedure 56(c) entitles a movant to obtain summary judgment upon demonstrating "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" show there is "no genuine issue as to any material fact" and the movant is "entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).
¶ 17 A genuine issue of material fact is one supported by evidence that would "persuade a reasonable mind to accept a conclusion." Liberty Mut. Ins. Co. v. Pennington , 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (citation omitted). "An issue is material if the facts alleged would ... affect the result of the action." Koontz v. City of Winston-Salem , 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972).
¶ 18 "The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact." DeWitt v. Eveready Battery Co. , 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citation omitted). "This burden may be met by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim." Id. (citation and internal quotation marks omitted).
¶ 19 "The evidence produced by the parties is viewed in the light most favorable to the non-moving party." Hardin v. KCS Int'l., Inc. , 199 N.C. App. 687, 695, 682 S.E.2d 726, 733 (2009) (citation omitted). When the court reviews the evidence at summary judgment, "[a]ll inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion." Boudreau v. Baughman , 322 N.C. 331, 343, 368 S.E.2d 849, 858 (1988) (citation omitted).
¶ 20 "Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ " In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal , 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) ). The meaning of the terms and provisions used in an insurance policy are a question of law. Wachovia Bank & Tr. Co. v. Westchester Fire Ins. Co. , 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970).
¶ 21 Our Supreme Court stated an insurance policy is a contract, "[a]s with all contracts, the object of construing an insurance policy is to arrive at the insurance coverage intended by the parties when the policy was issued." Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield, L.L.C. , 364 N.C. 1, 9, 692 S.E.2d 605, 612 (2010) (citation and internal quotation marks omitted); see Woods v. Nationwide Mut. Ins. Co. , 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978) ().
¶ 22 "[T]he most fundamental rule [in interpreting insurance policies] is that the language of the policy controls." Nationwide Mut. Ins. Co. v. Mabe , 115 N.C. App. 193, 198, 444 S.E.2d 664, 667 (1994).
¶ 23 Any ambiguities in the insurance policy are "strictly construed against the insurer and in favor of the insured." State Capital Ins. Co. v. Nationwide Mut. Ins. Co. , 318 N.C. 534, 547, 350 S.E.2d 66, 73 (1986).
¶ 24 Our Supreme Court stated our courts are to "construe[ ] liberally insurance policy revisions that extend coverage so as to provide coverage, whenever possible by reasonable construction," and "strictly construe against an insurance company those provisions excluding coverage under an insurance policy." Harleysville Mut. Ins. Co. , 364 N.C. at 9-10, 692 S.E.2d at 612 (citation and internal...
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