Tutterow v. Hall

• Citation: 2022 NCCOA 300
• Decision Date: 03 May 2022
• Docket Number: COA21-326
• Parties: GILBERT DEAN TUTTEROW, Administrator of the Estate of Vivian Lynn Tutterow, Plaintiff, v. BRIAN K. HALL, KRIS H. HALL; RANDY HALL AUTOMATIVE, LLC; STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and HORACE MANN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants.
• Court: Court of Appeal of North Carolina (US)

2022-NCCOA-300

GILBERT DEAN TUTTEROW, Administrator of the Estate of Vivian Lynn Tutterow, Plaintiff,
v.
BRIAN K. HALL, KRIS H. HALL; RANDY HALL AUTOMATIVE, LLC; STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and HORACE MANN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants.

No. COA21-326

Court of Appeals of North Carolina

May 3, 2022

Heard in the Court of Appeals 9 February 2022.

Appeal by plaintiff from order entered 7 January 2021 by Judge Joseph N. Crosswhite in Davie County No. 19 CVS 470 Superior Court.

Martin & Van Hoy, LLP by Henry P. Van Hoy, II; Katherine Freeman, PLLC by Katherine Freeman, for plaintiff.

McAngus, Goudelock & Courtie, PLLC by Jeffrey B. Kuykendal, for defendant State Farm Mutual Automobile Insurance Company.

Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC by Kara V. Bordman, Kenneth B. Rotenstreich, and Robert C. Cratch, for defendant Horace Mann Property and Casualty Insurance Company.

DIETZ, JUDGE

¶ 1 This appeal concerns the proper calculation of underinsured motorist or "UIM" coverage in a case involving both multiple underinsured tortfeasors and multiple UIM insurance policies.

1

¶ 2 The dispute centers on a provision of the Motor Vehicle Safety and Financial Responsibility Act addressing this issue. As with other portions of the Act, this statutory language is incorporated by law into every automobile insurance policy in our State.

¶ 3 The language provides that "if a claimant is an insured under the underinsured motorist coverage on separate or additional policies, the limit of underinsured motorist coverage applicable to the claimant is the difference between the amount paid to the claimant under the exhausted liability policy or policies and the total limits of the claimant's underinsured motorist coverages as determined by combining the highest limit available under each policy." N.C. Gen. Stat. § 20-279.21(b)(4).

¶ 4 Here, there were two negligent drivers who caused the accident, each with exhausted liability policies of $100, 000. There were also two applicable UIM policies, each with $100, 000 in UIM coverage. As explained below, the trial court properly applied the plain language of the statute and determined that the amount of UIM coverage available under this statutory calculation "is $0.00," which is the difference between the $200, 000 paid under the exhausted liability policies and the combined limits of the UIM policies.

¶ 5 The trial court's calculation follows the statute's plain language and is consistent with the purpose of underinsured motorist coverage identified in our State's case law. We therefore affirm the trial court's judgment.

2

Facts and Procedural History

¶ 6 In 2014, Vivian Tutterow was killed in a car accident. At the time, Tutterow was a passenger in a car driven by Pamela Crump. For purposes of this declaratory judgment action, the parties stipulated that both Crump and Defendant Brian Hall, the driver of a second vehicle, negligently caused the accident.

¶ 7 The parties involved in this accident had the following relevant insurance coverage: Crump had an auto policy issued by Horace Mann with $100, 000 per person liability limits and $100, 000 per person UIM coverage. Hall had an auto policy issued by Nationwide with $100, 000 per person liability limits.

¶ 8 Tutterow, as a...