New South Ins. Co. v. Kidd, 9321SC874
| Docket Nº | No. 9321SC874 |
| Citation | 443 S.E.2d 85, 114 N.C.App. 749 |
| Case Date | May 17, 1994 |
| Court | Court of Appeal of North Carolina (US) |
Page 85
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.
JOHNSON, Judge.
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.
[114 N.C.App. 751] 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.
Page 87
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).
[114 N.C.App. 752] 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...
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Hartford Cas. Ins. Co. v. Powell, 4:98-CV-62-A.
...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 between ......
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Bank of Am., N.A. v. Old Republic Ins. Co., No. 03:10–cv–00553–GCM–DSC.
...be 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 Stipulati......
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Averitt v. Rozier, 9412SC608
...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 words which "......
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Gibson v. Faulkner, COA98-712.
...that the hearsay information itself may not be competent in evidence at the [criminal] trial of the person arrested." Id. at 798, 443 S.E.2d at 85. We are bound by our holding in Melton. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequ......
-
Hartford Cas. Ins. Co. v. Powell, 4:98-CV-62-A.
...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 between ......
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Bank of Am., N.A. v. Old Republic Ins. Co., 03:10–cv–00553–GCM–DSC.
...be 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 Stipulati......
-
Averitt v. Rozier, 9412SC608
...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 words which "......
-
Gibson v. Faulkner, COA98-712.
...that the hearsay information itself may not be competent in evidence at the [criminal] trial of the person arrested." Id. at 798, 443 S.E.2d at 85. We are bound by our holding in Melton. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequ......