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Progressive American Insurance Co. v. Vasquez3/8/1999
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 129 N.C. App. 742, 502 S.E.2d 10 (1998), affirming in part and reversing in part an order entered by Stephens (Donald W.), J., on 3 April 1997 in Superior Court, Wake County. On 5 November 1998, the Supreme Court allowed conditional petitions for discretionary review as to additional issues. Heard in the Supreme Court 8 March 1999.
In this case, we are asked to decide, inter alia, the threshold issue of whether N.C.G.S. § 20-279.21 of the Financial Responsibility Act requires a commercial excess liability policy to offer separate uninsured and underinsured motorist ("UM" and "UIM," respectively) coverage in addition to what is offered by the underlying policy.
On 1 April 1994, defendant Aetna Casualty & Surety Company (now known as Travelers Casualty and Surety Company) issued a "Business Auto Coverage Policy" ("BAP") and a separate "Commercial Excess Liability Insurance Policy" to "T.A. Loving Company." The BAP provided UIM coverage limits and bodily injury liability limits of $1,000,000 per accident. The excess liability policy provided a $20,000,000 limit of liability for bodily injury for any one occurrence arising out of third-party liability claims made against Loving in excess of the underlying limits. The excess liability policy referenced the BAP as the underlying insurance.
On 8 July 1994, Amos H. Bryant and Daryell Carlisle were killed and Norman Johnson, Jr., and William T. Parker were injured when a flatbed truck, owned by Francisco Vasquez and driven by Javier Luna, collided with a pickup truck owned by T.A. Loving, Inc., and driven by Carlisle, a Loving employee. Bryant, Johnson, and Parker were also Loving employees. Tyvolia Faison, administratrix of Carlisle's estate; Virginia Lassiter, administratrix of Bryant's estate; Johnson; and Parker ("claimants") received $250,000 of primary liability coverage from plaintiff Progressive American Insurance Company ("Progressive American"), the liability insurer for Vasquez.
On 1 June 1995, Progressive American filed this action seeking a declaratory judgment that it had no obligation to defendants, under a policy issued to Vasquez by Progressive American which purported to cover the flatbed truck, with respect to any injuries or damages sustained in the accident. Defendant Aetna Casualty & Surety Company ("Aetna") filed an answer and cross-claim for declaratory judgment requesting, in part, a declaration that the excess liability policy issued by Aetna did not provide UM or UIM coverage above or in addition to that provided by the underlying auto policy.
Aetna subsequently filed a motion for summary judgment, which was heard at the 21 February 1997 session of Superior Court, Wake County. Although the trial court, in its "Memorandum Decision" of 4 March 1997 and its subsequent order of 3 April 1997, granted Aetna's motion for summary judgment, Aetna disagreed with that portion of the trial court's order regarding UIM coverage under the excess liability policy as set forth in the following Conclusions of law:
"2. The Aetna Business Auto Coverage Policy, number 25 FJ 1078005 CCA, provides One Million Dollars ($1,000,000.00) in underinsured motorist coverage for the aggregate of all claims and all claimants seeking recovery for wrongful death or personal injury arising out of a single incident. Under this policy, the maximum obligation of Aetna is a total of One Million Dollars ($1,000,000.00), reduced by the amount of primary carrier liability coverage paid by Progressive American Insurance Company, which amount is Two Hundred Fifty Thousand Dollars ($250,000.00). The net amou
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