Wright v. Fidelity & Cas. Co. of New York, 686
| Decision Date | 20 June 1967 |
| Docket Number | No. 686,686 |
| Citation | 155 S.E.2d 100,270 N.C. 577 |
| Parties | Arthur W. WRIGHT, Administrator of the Estate of Beatrice Wright, Deceased v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK. Arthur W. WRIGHT, Administrator of the Estate of Beatrice Wright, Deceased v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK. Arthur W. WRIGHT, Administrator of the Estate of Beatrice Wright, Deceased v. LIBERTY MUTUAL INSURANCE COMPANY. |
| Court | North Carolina Supreme Court |
Schoch, Schoch & Schoch, by Arch K. Schoch, Jr., High Point, for plaintiff appellant.
Smith, moore, Smith, Schell & Hunter, by Beverly C. Moore, Greensboro, for defendant appellee, Fidelity & Casualty Co., of New York.
Lovelace, Hardin & Bain by Edward R. Hardin, High Point, for defendant appellee, Liberty Mutual Ins. Co.
This is a brief summary of the essential parts of plaintiff's complaint in the first action: About 2:30 p.m. on 4 July 1964, plaintiff's intestate was a passenger in an automobile being operated by Betty Jo Carter, her daughter-in-law. This automobile was owned by Charles Nathan Carter, husband of Betty Jo Carter, and at the time was being operated by Betty Jo Carter with the full knowledge and consent of her husband. She was not a resident of plaintiff's intestate's household. When Betty Jo Carter had brought this automobile to a complete halt at the Delaware Bridge tollgate on the New Jersey Turnpike in New Jersey, and after her automobile had been stopped for several seconds waiting for traffic to pass through the tollgate, it was struck violently from the rear by a 1961 Cadillac operated by Leroy Chapman and owned by Robert Fields. Both Chapman and Fields were 'uninsured motorists' and the said Cadillac was an 'uninsured automobile,' all as defined in Section 11(c) of a policy of automobile liability insurance issued by defendant insurance company, Fidelity and Casualty Insurance Company of New York.
As a direct result of the automobile in which plaintiff's intestate was riding as a passenger being struck while it was standing still by the automobile driven by Chapman, plaintiff's intestate sustained severe personal injuries causing her to suffer greatly in body and mind and to incur substantial medical and hospital expenses until her death on 24 December 1965. The collision between the automobile driven by Chapman with the rear end of the stopped automobile in which plaintiff's intestate was a passenger was caused by the sole proximate negligence of Chapman, which acts of negligence were alleged with particularity in the complaint.
On 8 November 1963 Fidelity issued to plaintiff a policy of automobile liability insurance, which policy was in full force and effect on 4 July 1964. Plaintiff's intestate was his wife, resided in his household, and was therefore insured under the uninsured motorist clause of defendant's policy. This policy provides for payment of all sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator of an uninsured automobile, said liability being limited to $5,000. Defendant has made no payment under its policy to plaintiff for her injuries occasioned by an uninsured motorist. Wherefore, plaintiff prays judgment against defendant for the sum of $5,000 and the costs of this action.
This is a summary of the complaint in the second action in this case, which is identical with the complaint in the first action with these exceptions: On 9 February 1964 Liberty Mutual Insurance Company issued a policy of automobile liability insurance to Charles Nathan Carter, which policy was in full force and effect on 4 July 1964, and covered the operation of the automobile owned by him which was involved in the said collision. At no time did Charles Nathan Carter reject, either orally or in writing, the 'uninsured motorist coverage' under the said policy, and, therefore, pursuant to G.S. § 20--279.21(b)(3), this policy included protection against uninsured motorists. This policy provides for payment of all sums which the insured or its legal representative shall be legally entitled to recover as damages from the operator of an uninsured automobile, said liability being limited to $5,000, none of which amount has been paid by defendant to plaintiff or his intestate. Wherefore, plaintiff prays judgment against the defendant in this action for the sum of $5,000 and the costs of the action.
A copy of the policy of automobile liability insurance issued by Fidelity to plaintiff is attached to the complaint in the first action and made a part thereof. A copy of the policy of automobile liability insurance issued by Liberty to Carter is attached to the complaint in the second action and made a part thereof.
Fidelity in the action against it demurred Ore tenus to the complaint for that the complaint failed to state a cause of action against it. The judge entered a judgment sustaining the demurrer and dismissing the action.
Liberty demurred to the complaint in the action against it on these grounds: It appears upon the face of the complaint that there is a defect of parties defendant in this action, in that the sole negligence alleged in the complaint is the negligence of one Chapman, who was operating an automobile owned by one Fields; that there has been no adjudication as to the liability of said parties for the injuries and damages complained of in the complaint, and further no finding that if said parties were liable that they were 'uninsured,' and further that it is patent upon the face of the complaint and the policy attached thereto that the said policy did not afford coverage for uninsured motorists. Judgment was entered sustaining the demurrer to the complaint in the second action, and dismissing the action.
A demurrer to a complaint admits, for the purpose of testing the sufficiency of the complaint, the truth of all factual averments well stated and all relevant inferences of fact reasonably deducible therefrom. A demurrer does not admit inferences, or conclusions of law. 3 Strong's N.C. Index, Pleadings, § 12.
Exhibits attached to the complaint and made a part thereof should be considered on a demurrer. Charlotte City Coach Lines Inc. v. Brotherhood of Railroad Trainment, 254 N.C. 60, 118 S.E.2d 37.
A demurrer does not admit the alleged construction of an instrument when the instrument itself is incorporated in the pleadings and the construction alleged is repugnant to the language of the instrument. Lindley v. Yeatman, 242 N.C. 145, 87 S.E.2d 5.
G.S. § 1--151 requires '(i)n the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.'
' Buck v. United States Fidelity & Guaranty Co., 265 N.C. 285, 144 S.E.2d 34.
The Fidelity policy issued to plaintiff is an assigned risk policy. Attached to the policy is an endorsement 'North Carolina Protection Against Uninsured Motorists Insurance.' An insuring agreement in this endorsement reads:
'I. Damages for Bodily Injury and Property Damage Caused by Uninsured Automobiles
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of:
'(a) bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by the insured;
caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.
For the purpose of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree and the insured so demands, by arbitration; but if the insured elects not to arbitrate, the liability of the company shall be determined only in an action against the company and no prior judgment against any person or organization alleged to be legally responsible for such damages shall be conclusive of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company. In any action against the company, the company may require the insured to join such person or organization as a party defendant.'
It contains a definition as follows:
'II. Definitions
(a) Insured. With respect to the bodily injury coverage afforded under this endorsement, the unqualified word 'insured' means:
(1) the named insured and, while residents of the same household, his spouse. * * *'
The first action here is on the uninsured motorists endorsement contained in the automobile liability insurance policy issued by Fidelity to plaintiff, and the decision here in the first action depends upon the provisions of that contract contained in the uninsured motorists endorsement.
Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S.E.2d 610.
The endorsement to Fidelity's policy providing protection against uninsured motorists states that Fidelity will pay all sums which he is legally entitled to recover as damages from the operator of an uninsured automobile because of bodily...
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