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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.9/2/1997
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 Insurance Company (hereinafter "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 North Carolina Insurance Guaranty Association (hereinafter "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 all other respects, the original opinion of this Court filed 5 November 1996 is adopted and reaffirmed.
On rehearing, defendant Guaranty contends that Mission's policy's definition of "personal injury " is virtually identical to the definition of "bodily injury" in defendant Fireman's Fund's policies, as construed in our previous opinion; and that, as a matter of law, Mission's policy imposed no duty to defend and indemnify plaintiff Fieldcrest Cannon in the underlying discrimination actions. We agree, and accordingly, affirm the trial court's 26 April 1993 order granting defendant Guaranty's motion for summary judgment.
Mission's umbrella policy defined "personal injury " in the following manner:
"Personal injuries" . . . means bodily injury (including death at any time resulting therefrom), mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, humiliation; also libel, slander or defamation of character or invasion of rights of privacy, ex
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