South Carolina Ins. Co. v. Smith, 835SC635

• Decision Date: 17 April 1984
• Docket Number: No. 835SC635,835SC635
• Citation: 67 N.C.App. 632,313 S.E.2d 856
• Parties: SOUTH CAROLINA INSURANCE COMPANY v. Marvin B. SMITH, and W.L. Gore.
• Court: North Carolina Court of Appeals

Page 856

313 S.E.2d 856

67 N.C.App. 632

SOUTH CAROLINA INSURANCE COMPANY v. Marvin B. SMITH, and W.L. Gore.

No. 835SC635.

Court of Appeals of North Carolina.

April 17, 1984.

Walton, Fairley & Jess by Ray H. Walton, Southport, for defendant-appellant Smith.

David Rock Whitten, Wilmington, for defendant-appellant Gore.

Marshall, Williams, Gorham & Brawley by William Robert Cherry, Jr., Wilmington, for plaintiff-appellee.

VAUGHN, Chief Judge.

In order to determine whether summary judgment was properly granted plaintiff insurer, we must examine the effect of North Carolina's Financial Responsibility Act on an employee exclusion clause in an automobile liability policy. Plaintiff argues that the employee exclusion clause contained in the "Personal Auto Policy" it issued to defendant Gore relieves it of any liability under the policy arguably arising from the accident in question. Defendants' position is that regardless of the validity of the exclusionary clause; G.S. 20-279.21(e), part of North Carolina's Financial Responsibility Act, subjects the plaintiff to liability under the policy unless evidence is produced showing that defendant employee Smith was covered by North Carolina's Workers' Compensation Act, i.e., that defendant employee Gore was required to provide workers' compensation insurance for its employee.

We first examine the policy exclusion and applicable statutory provision. The employee exclusion provision reads as follows:

A. We do not provide Liability Coverage for any person: ...

4. For bodily injury to an employee of that person during the course of employment. This exclusion does not apply to bodily injury to a domestic employee unless workers' compensation benefits are required or available for that domestic employee.

North Carolina's Financial Responsibility Act requires all owners of motor vehicles to carry liability insurance covering both the owner and persons using the vehicle with the owner's permission. The portion of that act on which defendants base their argument is G.S. 20-279.21(e), which provides:

Such motor vehicle liability policy need not insure against loss from any liability for which benefits are in whole or in part either payable or required to be provided under any workmen's compensation law nor any liability for damage to property owned by, rented to, in charge of or transported by the insured.

We note preliminarily that North Carolina adheres to the majority rule that an employee exclusion clause is a valid limitation on coverage in an automobile liability insurance policy. See, e.g., Insurance Co. v. Insurance Co., 256 N.C. 91, 123 S.E.2d 108 (1961). See also Dahm v. Employers Mut. Liability Ins. Co. of Wis., 74 Wis.2d 123, 246 N.W.2d 131 (1976) (fellow employee exclusion clause not contrary to public policy). Indeed, the parties do not contest the validity of the clause but disagree as to its applicability in light of North Carolina's Financial Responsibility Act.

As the particular question before us has never been confronted by the courts of this State, in addition to reviewing pertinent North Carolina authority, we have examined cases from other jurisdictions that have dealt with the effect of similar acts on insurance policy provisions excluding employees from coverage. Based on our consideration of this primary authority from North Carolina and secondary authority from other jurisdictions, we conclude that G.S. 20-279.21(e) controls the policy provision in such a manner that although it does not void the exclusionary clause in question, it limits its effect. Specifically, we hold that G.S. 20-279.21(e) limits the operative effect of employee exclusion clauses in automobile liability policies required by the Financial Responsibility Act to the extent that an insurer may not exclude employees from policy coverage unless workers' compensation is available to those employees. Put otherwise, the validity of the exclusion is contingent on the existence of workers' compensation. In the case before us, the record is devoid of any evidence pertaining to workers' compensation. Therefore, the summary judgment entered in favor of the plaintiff must be reversed and the cause remanded for factual findings as to whether workers' compensation was available to the defendant employee.

The starting point of our analysis is that nothing else appearing, the exclusionary clause in the policy before us would defeat coverage. Defendant Smith, otherwise a "covered person" under the language of the policy, would be excluded from coverage by plaintiff insurer due to his status as an employee acting in the course of his employment for defendant Gore. See State Farm Mutual Automobile Ins. Co. v. Karasek, 22 Ariz.App. 87, 88, 523 P.2d 1324, 1325 (1974) ("[W]e start from the premise that if we are governed by the clear and unambiguous terms of the policy [the insured] cannot recover"); General Accident Fire & Life Assur. Corp. v. Kimberly, 61 Ga.App. 153, 6 S.E.2d 78 (1939) (language of employee exclusion clause neither uncertain nor ambiguous). The principle that employee exclusion clauses are valid where no contrary statutory provision exists was stated thus by an Ohio court:

Although such a result may seem unfortunate, in absence of some statutory requirement, an owner of an automobile is not obligated, when ... [contracting] for liability insurance, to provide coverage for those of his [or her] employees who may drive the automobile with ... permission or in the course of their employment ....

Morfoot v. Stake, 174 Ohio St. 506, 510, 190 N.E.2d 573, 576 (1963). See Younts v. Insurance Co., 281 N.C. 582, 585, 189 S.E.2d 137, 139 (1972) (in absence of any provision in Financial Responsibility Act broadening liability of insurer, such liability must be measured by the terms of its policy as written).

Accordingly, in cases where a financial responsibility act is not involved, either because the jurisdiction has not adopted such an act, or because the court declined to consider its effect on an exclusionary clause, it has been uniformly held that such clauses operate to exclude an employee from coverage and that the insurer is thus relieved of liability. See, e.g., Griffin v. Speidel, 179 So.2d 569 (Fla.1965) (court did not address issue of effect of such a statute on employee exclusionary clause); Gibbs v. Insurance Co., 224 N.C. 462, 31 S.E.2d 377 (1944) (antedating North Carolina's Financial Responsibility Act).

The more problematic cases are those where it becomes necessary to evaluate the effect of legislation mandating automobile liability insurance on these otherwise valid exclusions. North Carolina has adopted such legislation as Chapter 20, Article 9A of the General Statutes, entitled "Motor Vehicle Safety and Financial Responsibility Act of 1953," and we must therefore consider the impact of such statutory authority on the policy provision in question. To properly evaluate the effect of G.S. 20-279.21(e) on the policy exclusion in question, it is necessary to understand the policies behind both the North Carolina Financial Responsibility Act generally and behind employee exclusion clauses.

The purpose of any exclusion in a policy of insurance is manifestly to limit the liability of the insurer, and the particular purpose of an employee exclusion clause "is to protect the owner from the expense of double coverage where ... [an] employee is covered by [workers'] compensation." Farmers Insurance Group v. Home Indemnity Co., 108 Ariz. 126, 129, 493 P.2d 909, 912 (1972). See also Dahm v. Employers Mut. Liability Ins. Co. of Wis., supra (purpose of fellow employee exclusion clause is to leave injured employee to a remedy under workers' compensation law or to an action against fellow employee).

The primary purpose of the compulsory motor vehicle liability insurance required by North Carolina's Financial Responsibility Act is to compensate innocent victims who have been injured by financially irresponsible motorists. Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654 (1964). Furthermore, the Act is to be liberally construed so that the beneficial purpose intended by its enactment may be accomplished. Moore v. Insurance Co., 270 N.C. 532, 155 S.E.2d 128 (1967).

We next turn to case law from other jurisdictions. The Ninth Circuit Court of Appeals interpreted California statutes similar to North Carolina's as they applied to an employee exclusion clause in an automobile liability policy. That court stated:

Cal.Veh.Code § 16451 [comparable to G.S. 20-279.21(b)(2) ] requires that motor vehicle liability insurance policies cover permissive users. Cal.Veh.Code § 16454 [comparable to G.S. 20-279.21(e) ] allows an exception for liability of the assured imposed on the assured by any ... [workers'] compensation law. The [employee exclusion clause] ... falls within the § 16454 exception only to the extent that it excludes [workers'] compensation payments.

United States v. Transport Indem. Co., 544 F.2d 393, 395 (9th Cir.1976) (emphasis added). Accord, Dahm v. Employers Mut. Liability Ins. Co. of Wis., supra (employee exclusion clause in employer's liability policy invalid in absence of compliance with statutory requirement that employer provide workers' compensation).

In Makris v. State Farm Mutual Automobile Ins. Co., 267 So.2d 105 (Fla.1972), a Florida court reversed a summary judgment entered in favor of the employer's insurance company. The court noted that the insurer inadequately supported its position "by relying on decisions which hold that the provisions of an insurance policy excluding coverage for bodily injury to an employee while acting in the scope of ... employment are valid." Id. at 107. Plaintiff at bar likewise relies on cases which uphold the validity of employee exclusion clauses. As in Makris, however, the essential validity of such exclusions is not at issue. What is at issue is the effect of statutes mandating automobile liability insurance on...