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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/18/1997
PER CURIAM.
Only the facts necessary for determination of the issue on rehearing are set out here. For a more complete statement of the facts of this case, see this Court's previous opinion at 124 N.C. App. 232, 477 S.E.2d 59 (1996).
Plaintiff Fieldcrest Cannon, Inc. instituted this action to recover legal defense costs incurred in defending its predecessor, Cannon Mills, Inc. (hereinafter "Cannon"), against certain employment discrimination claims during the 1980's, and to recover sums paid pursuant to judgments and settlements of certain of those claims. Cannon was insured by defendant Fireman's Fund Insurance Company (hereinafter "Fireman's Fund") under four (4) consecutive, identical comprehensive general liability policies written as primary insurance and covering occurrences during the period from 15 May 1978 through and including 15 May 1982.
Defendant North River and Mission Insurance Company (hereinafter "Mission") insured Cannon pursuant to "umbrella" liability policies which were written as excess coverage to defendant Fireman's Fund's primary insurance. Defendant North River's policy covered occurrences during a period from 15 May 1977 through 15 May 1980, and the Mission policy covered occurrences during the period of 15 May 1980 through 15 May 1981. When Mission became insolvent in 1987, defendant Guaranty assumed responsibility for certain of Mission's obligations pursuant to the North Carolina Insurance Guaranty Association Act, N.C. Gen. Stat. ยง 58-48-1, et seq.
In this Court's decision filed 5 November 1996, we reversed the trial court's entry of summary judgment in favor of defendant Guaranty premised upon the following: (1) Mission's admission of its duty to defend and fund the underlying discrimination actions; and (2) the trial court's statement in its 30 June 1993 order dismissing plaintiff's action against defendant North River that plaintiff Fireman's Fund's policies fully covered the underlying discrimination claims. In light of our holding that the trial court's order of summary judgment as to Stanley Rosenthal's lawsuit would be reversed, we also reversed the trial court's 26 April 1993 order granting defendant Guaranty's motion for summary judgment. Defendant Guaranty petitioned for rehearing, and by order filed 8 January 1997, we allowed this petition, without additional briefing or oral argument, for the limited purpose of addressing defendant Guaranty's duty to defend and indemnify plaintiff Fieldcrest Cannon in the underlying discrimination claims. In our opinion filed 2 September 1997, we affirmed the entry of summary judgment for defendant Guaranty, but in all other respects, the original opinion of this Court filed 5 November 1996 was adopted and reaffirmed. Plaintiff and defendant North River jointly petitioned for rehearing, and we allowed that joint petition without additional briefing or oral argument, for the limited purpose of addressing plaintiff and defendant North River's argument that our 2 September 1997 opinion is inconsistent with the 5 November 1996 opinion filed in this case.
On rehearing, plaintiff and defendant North River contend that this Court's 2 September 1997 opinion was inapposite to its 5 November 1996 opinion in this same case. We agree, and therefore, withdraw the 2 September 1997 opinion and enter this new opinion consistent with the wording of our earlier 5 November 1996 opinion.
Hence, we again consider whether the trial court erred in determining that there was no genuine issue of fact and as a matter of law Mission's policy imposed no duty to defend and indemnify plaintiff Fieldcrest Cannon in the underlying discrimination actions. Again, we answer in the negative, and ac
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