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Moore v. Cincinnati Insurance Co.12/18/2001
Appeals by defendant/third-party plaintiff, The Cincinnati Insurance Company, and plaintiffs from judgment filed 24 April 2000 by Judge James U. Downs in Craven County Superior Court. Heard in the Court of Appeals 6 November 2001.
The Cincinnati Insurance Company (Defendant) appeals an order (the Order) filed 24 April 2000 declaring Defendant to be responsible for providing primary liability coverage up to its policy limits and underinsured motorist coverage in the amount of $25,000.00 per person and $50,000.00 per accident to Chiquita B. Moore, as Administratrix of the Estate of Jeffrey Moore (Moore), deceased, and Otis Eugene Chapman (Chapman) (collectively, Plaintiffs); Plaintiffs also appeal the Order based on the amount of underinsured motorist coverage.
On 21 June 1995, Moore purchased a 1991 Subaru Loyale station wagon (the Subaru) from Alcoke Auto Center, LLC d/b/a New Bern Pontiac Mazda (Alcoke) in New Bern, North Carolina. Shortly after purchasing the Subaru, Moore began experiencing mechanical problems with the vehicle. These problems were caused by the vehicle having been previously wrecked, a fact unknown by Moore. On or about 6 September 1995, Alcoke agreed to repair the Subaru, with Alcoke and Moore equally bearing the costs of the repairs. While the Subaru was being repaired, Alcoke provided Moore with a loaner vehicle to drive (the loaner vehicle) that was covered under a garage liability insurance policy provided to Alcoke by Defendant.
On 11 September 1995, after several return visits to Alcoke, Moore returned to the dealership to see if the Subaru had been repaired. According to Chapman, after Moore informed Alcoke he would be making a trip to New York, an Alcoke representative "said it was all right . . . since they had [Moore's] car." On 11 September 1995, Moore, as the driver, along with Chapman and David Earl Sanders (Sanders), as passengers, drove the loaner vehicle to New York City. The three men left New York to return to New Bern on 12 September 1995 at approximately 4:30 p.m. At the time the men left New York, Moore was driving the loaner vehicle; sometime during the return trip to New Bern, however, Sanders began driving while Moore rested in the back seat of the loaner vehicle. At approximately 3:45 a.m. on 13 September 1995, the loaner vehicle collided with an "eighteen-wheeler tractor-trailer" at the intersection of US 70 Business and US 70 By-Pass in Johnston County, North Carolina. Moore and Sanders died as a result of the incident, and Chapman was seriously injured. The N.C. Highway Patrol investigated the incident scene and determined Sanders was solely at fault for causing the incident.
In a letter dated 19 December 1995, in response to a demand package sent by Plaintiffs, Defendant denied liability coverage for the collision stating the loaner vehicle "was to be driven in the New Bern area with [Moore] being the only driver. . . . The driver of the [loaner] vehicle at the time of the accident was [Sanders], an unauthorized driver."
On 26 January 1996, Plaintiffs filed a complaint against Defendant seeking a judgment declaring: the rights of the parties with respect to Defendant's policy of insurance covering the loaner vehicle; that Defendant provide Plaintiffs with compensation for the wrongful death and personal injuries arising out of the 13 September 1995 incident; the limits of automobile liability coverage provided by Defendant; Defendant responsible for any judgment entered in civil actions arising out of the 13 September 1995 incident; and Defendant has a duty to defend the estate of Sanders and Alcoke as a result of the 13 September 1995 collision. Defendant answered and denied the allegations in Plaintiff
Page 1 2 3 North Carolina Personal Injury Attorneys
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