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Fortune Insurance Co. v. Owens3/2/1999
Appeal by defendants Johna R. Hart and Louis L. Gilmore from judgment filed 6 October 1997 and from amended judgment filed 13 October 1997 by Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 October 1998.
Johna R. Hart (Hart) and Louis L. Gilmore (Gilmore) appeal from the trial court's entry of judgment for Fortune Insurance Company (Fortune).
On 29 January 1990, in Mecklenburg County, North Carolina, a motor vehicle owned and driven by Gary Edgar Owens (Owens) struck a motor vehicle occupied by Hart and Gilmore. At the time of the accident, Owens' motor vehicle was covered by a policy of insurance (the Owens Policy) issued in Florida by Fortune, a Florida corporation. The Owens Policy provided, in pertinent part:
"CONFORMITY WITH LAW "If any provision of this policy is contrary to any law to which it is subject, such provision is hereby amended to conform thereto. "COVERAGE: PERSONAL INJURY PROTECTION [Fortune] "will pay, in accordance with the Florida Motor Vehicle No Fault Law, as amended, to or for the benefit of the insured person: [enumerated damages] incurred as a result of bodily injury, caused by an accident arising out of the ownership, maintenance, or use of a motor vehicle and sustained by: "1. the named insured or any relative while occupying a motor vehicle or, while a pedestrian, through being struck by a motor vehicle; or "2. any other person while occupying the insured motor vehicle or, while a pedestrian, through being struck by the insured motor vehicle."
When Owens applied to Fortune for insurance approximately one month prior to the accident, he listed his address as Destin, Florida. Owens had a duplicate Florida driver's license issued to him at that time. In addition, the motor vehicle covered by the Owens Policy and involved in the 29 January 1990 wreck in North Carolina had Florida license plates and a Florida vehicle identification number.
Hart and Gilmore each filed suit against Owens in January of 1993. Fortune hired a Charlotte, North Carolina, attorney, Rex C. Morgan (Morgan), to represent Owens, and answers to Hart and Gilmore's complaints were filed on Owens' behalf. Morgan was never able to locate Owens and never had any contact with him. In July of 1995, Fortune notified Morgan that he should "close his files." Morgan immediately made a motion to withdraw as Owens' attorney, which was granted by the trial court. In his motion to withdraw, Morgan stated that Fortune had informed him when he was retained that it had "sent a reservation of rights letter to [Owens] and advised that it took the position that it had no coverage." No reservation of rights letter is contained in the record on appeal. Also in July of 1995, Fortune filed a Petition for Declaratory Judgment seeking a judicial determination that Fortune had no obligation to provide a defense to Owens or to pay any judgment that might be entered against Owens pursuant to the actions filed by Hart and Gilmore. Hart and Gilmore's answer, filed 20 September 1995, asserted that Fortune should be "estopped to deny coverage." A hearing was not held on Fortune's petition until October of 1997.
Hart and Gilmore's suits against Owens were consolidated and tried without a jury in January of 1997. Owens did not appear, and was not represented by counsel. The trial court determined that Owens was liable to Hart for $18,500.00 for personal injuries and was liable to Gilmore for $18,500.00 for personal injuries.
In October of 1997, at the hearing on Fortune's Petition for Declaratory Judgment, the trial court found that Owens was a Florida resident at the time the Owens Policy was entered, and that Owens'
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