New South Ins. Co. v. Kidd, 9321SC874
| Citation | 443 S.E.2d 85,114 N.C.App. 749 |
| Decision Date | 17 May 1994 |
| Docket Number | No. 9321SC874,9321SC874 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | NEW SOUTH INSURANCE COMPANY, Plaintiff, v. Deborah A. KIDD, Bobby Lewis Mathis, and Ossie Lee Mamie Melvin, Defendants. |
Greeson and Grace, P.A. by Michael R. Greeson, Jr., Winston-Salem, for plaintiff-appellant.
Yow, Culbreth & Fox by Stephen E. Culbreth and Jerry A. Mannen, Jr., Wilmington, for defendant-appellee Deborah A. Kidd.
The facts of this appeal arise from a prior cause of action wherein: Deborah A. Kidd (Kidd), defendant herein, brought an action against Bobby Lewis Mathis (Mathis) and Ossie Lee Mamie Melvin (Melvin), co-defendants herein, in New Hanover County, for personal injuries she sustained as a result of a collision between her motor vehicle and a motor vehicle owned by Melvin and operated by Mathis on 24 June 1990. The complaint alleged negligence on the part of Melvin and Mathis and sought damages for personal injuries sustained by Kidd and her minor children as a result of the collision. Specifically, the complaint alleged that defendant Mathis was negligent at the time of the collision in that: (1) he was under the influence of an impairing substance to such an extent that his physical and mental faculties had become appreciably impaired; (2) that he operated a motor vehicle carelessly and heedlessly in a willful and wanton disregard for the rights and safety of others; (3) that he operated a motor vehicle without due caution and circumspection and at a rate of speed and in a manner to endanger persons. At the time of the accident, the vehicle Mathis was operating was insured by New South Insurance Company (New South), plaintiff herein.
The matter was subsequently transferred to superior court and a dismissal was taken as to Melvin. Kidd, through counsel and leave of court, filed an amendment to her complaint charging defendant Mathis with willful and wanton conduct in relation to the collision, and seeking punitive damages.
The case was heard at the 22 March 1993 session of superior court in New Hanover County before a jury and Judge James D. Llewellyn. At the conclusion of the evidence, three issues were submitted to the jury and, upon deliberation, the jury awarded Kidd $5,000.00 in compensatory damages and $45,000.00 in punitive damages.
New South then filed the declaratory judgment action which is the subject of this appeal, to ascertain New South's liability for the punitive damages awarded to Kidd. New South maintained that the insurance policy covering the vehicle involved in the accident did not provide coverage for punitive damages. New South then moved for summary judgment on 29 June 1993. Kidd cross-motioned for summary judgment on 15 July 1993.
On 26 July 1993, the motions were heard before Judge W. Steven Allen, Sr.; Judge Allen concluded that Kidd was entitled to judgment as a matter of law. From this judgment, New South appealed to our Court.
By New South's first assignment of error, New South contends that the trial court erred in granting Kidd's motion for summary judgment based on the legal conclusion that the subject policy provided coverage for punitive damages when, New South contends, said policy expressly denied coverage for intentional conduct and the jury found intentional conduct as the basis for its punitive damage award.
Summary judgment is a device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. North Carolina General Statutes § 1A-1, Rule 56 (1990). This showing must be viewed in the light most favorable to the non-moving party and such non-moving party should be accorded all favorable inferences that may be deduced from the showing. Moye v. Thrifty Gas Co., Inc., 40 N.C.App. 310, 252 S.E.2d 837, disc. review denied, 297 N.C. 611, 257 S.E.2d 219 (1979).
New South's policy provides:
We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident....
The policy also provides, under a section titled "EXCLUSIONS," the following:
A. We do not provide Liability Coverage for any person:
1. Who intentionally causes bodily injury or property damage....
New South contends that even though the policy in question does not specifically exclude coverage for punitive damages, the policy as drafted excludes the category of conduct which formed the basis for the jury's decision to award punitive damages. New South argues that because the policy contains an exclusion for intentional acts and because the jury found that Mathis acted willfully and wantonly, it is not responsible for the punitive damages awarded.
The North Carolina Pattern Jury Instructions, read by Judge Llewellyn to the jury, defines willful and wanton conduct as follows:
An act is done willfully when it is done purposefully and deliberately in violation of the law, or when it is done knowingly and of set purpose, or when the person acts with a reckless and total indifference to the rights and safety of others. An act is wanton when it is done of wicked purpose, or when done needlessly, showing a reckless indifference to the rights and safety of others. N.C.P.I. 102.85 (Replacement April 1989).
This cause of action arises from allegations that Mathis operated a vehicle under the influence of an impairing substance and carelessly and heedlessly. There were no allegations that Mathis' conduct was deliberate or intentional in nature. Therefore, based on the above instructions and the facts of this case, we find that the jury's finding of willful and wanton conduct does not support a finding that the conduct in question was intentional.
By New South's second assignment of error, New South contends that the trial court's finding of...
To continue reading
Request your trial
-
Hartford Cas. Ins. Co. v. Powell
...P.2d 790 (Mont.1984)); New Mexico (Baker v. Armstrong, 106 N.M. 395, 744 P.2d 170 (N.M.1987)); North Carolina (New South Ins. Co. v. Kidd, 114 N.C.App. 749, 443 S.E.2d 85 (1994)); Oregon (A-1 Sandblasting & Steamcleaning Co. v. Baiden, 293 Or. 17, 643 P.2d 1260 (Or.1982) (distinguishing bet......
-
Bank of Am., N.A. v. Old Republic Ins. Co.
...construed in favor of coverage. See Herring v. Liner, 163 N.C.App. 534, 538, 594 S.E.2d 117, 120 (2004); New South Insurance v. Kidd, 114 N.C.App. 749, 753–55, 443 S.E.2d 85, 88 (1994). The only provision in the Policy that addresses fraud or misrepresentation is Provisions and Stipulation ......
-
Averitt v. Rozier
...is entitled to the benefit of all favorable inferences which may reasonably be drawn from the facts proffered. New South Insurance Co. v. Kidd, 114 N.C.App. 749, 443 S.E.2d 85, disc. review denied, 336 N.C. 782, 447 S.E.2d 427 Spoken communication to a third person of false and defamatory w......
- Gibson v. Faulkner
-
Punitive damages: when, where and how they are covered.
...S.E.2d 34 (N.C.App. 1994) (automobile policy covered punitive damages award absent express exclusion). New South Insurance Co. v. Kidd, 443 S.E.2d 85 (N.C.App. 1994) (automobile policy covered punitive damages, even though it contained exclusion for intentional conduct; policy must explicit......