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Progressive American Insurance Co. v. Vasquez3/8/1999
cies, as a basis for our decision. As noted by the majority, Krstich is a federal case decided under Ohio law and thus not binding on this Court; however, the Krstich court said that the result would be the same under both the Ohio statute and the North Carolina statute. This Court did not reject that assertion in Isenhour and thus approved an interpretation of N.C.G.S. § 20-279.21(b)(3) and (b)(4) that would require policies of bodily injury liability insurance which cover liability arising out of the ownership, maintenance, or use of a motor vehicle to provide UM coverage and UIM coverage if the other statutory prerequisites are met. Our analysis in Isenhour was not dependent upon the policy satisfying the definition of "motor vehicle liability policy" contained in N.C.G.S. § 20-279.21(a).
In Isenhour, this Court gave an interpretation to N.C.G.S. § 20-279.21(b)(3) and (b)(4) that, if followed in this case, would require an excess liability policy to provide UIM coverage. The General Assembly has not rejected the interpretation given to N.C.G.S. § 20-279.21(b)(3) and (b)(4) in the Isenhour decision. Instead, the General Assembly amended chapter 58 of the North Carolina General Statutes, effective 14 August 1997, so as to permit insurers "to limit or exclude UM and UIM coverage with respect to insurance policies providing excess liability coverage." N.C.G.S. § 58-3-152. However, the enactment of N.C.G.S. § 58-3-152 did not affect the interpretation of N.C.G.S. § 20-279.21(b)(3) and (b)(4) adopted in Isenhour.
Finally, and perhaps most important, the interpretation of N.C.G.S. § 20-279.21(b)(4) given in Isenhour fulfills the "avowed purpose of the Financial Responsibility Act, of which N.C.G.S. § 20-279.21(b)(4) is a part, [which] is to compensate the innocent victims of financially irresponsible motorists." Sutton, 325 N.C. at 265, 382 S.E.2d at 763. The majority's construction ignores our longstanding tenet that, as a remedial statute, the provisions of N.C.G.S. § 20-279.21(b)(4) should be "liberally construed so that the beneficial purpose intended by its enactment may be accomplished." Id.
The umbrella policy issued by Aetna in this case provides bodily injury liability insurance covering liability arising out of the ownership, maintenance, or use of a motor vehicle. Therefore, pursuant to N.C.G.S. § 20-279.21(b)(3) as interpreted by Isenhour, the excess liability policy would be required to provide UM coverage, and under the precedent of Isenhour, I would hold that the policy must also provide UIM coverage pursuant to N.C.G.S. § 20-279.21(b)(4).
Justice MARTIN joins in this Dissenting opinion.
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