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Andersen v. Baccus1/28/1994
PARKER, Justice.
This case arose out of a collision on 5 February 1988 between an automobile driven by defendant Marilyn Combs Baccus and an automobile driven by Saundra L. Andersen, wife of plaintiff James J. Andersen, Jr. The collision occurred when defendant Marilyn Baccus swerved to avoid colliding with a third automobile, a Ford station wagon driven by an unknown person. The third automobile did not stop at the scene and the driver has never been identified. Plaintiff did not witness the accident but was brought to the scene of the accident before his wife was freed from the wreckage. After being freed, Mrs. Andersen was taken to a local hospital and the next day gave birth to a stillborn son, John Laurits Andersen. On 26 March 1988 Mrs. Andersen died from injuries allegedly received in the accident.
Plaintiff's complaint alleged claims for wrongful death of his wife and son, punitive damages based thereon, negligent infliction of emotional distress, and punitive damages based thereon. The alleged liability of defendant State Farm Mutual Automobile Insurance Company ("State Farm") was based on its status as insurer of the automobile driven by plaintiff's intestate under a policy providing uninsured motorist coverage. Defendant State Farm asserted a counterclaim for declaratory judgment on the basis that there was no contact between any person or vehicle and the Ford automobile and "in particular, there was no contact between said Ford station wagon or any person or vehicle insured under said policy."
Prior to trial defendant State Farm moved for summary judgment on its counterclaim. State Farm and defendants Baccus moved for summary judgment on plaintiff's claims for wrongful death and negligent infliction of emotional distress. After a hearing, the trial court (i) denied State Farm's motion for summary judgment on its counterclaim but granted summary judgment for plaintiff on the issue of uninsured motorist coverage; (ii) entered summary judgment for defendants on plaintiff's claim for negligent infliction of emotional distress; (iii) denied defendants' motions for summary judgment on the wrongful death claims; and (iv) granted defendants partial summary judgment as to plaintiff's claim for punitive damages related to the wrongful death claims.
On appeal to the Court of Appeals plaintiff did not pursue the punitive damages claims. As to the claims appealed, the Court of Appeals reversed the trial court's judgments. This Court granted all parties' petitions for discretionary review, Andersen v. Baccus, 333 N.C. 574, 429 S.E.2d 567-69 (1993); and for the reasons which follow, we affirm in part and reverse in part.
In reversing summary judgment for plaintiff on the uninsured motorist issue, the Court of Appeals first concluded that the policy issued by defendant State Farm "clearly required that the unidentified vehicle make contact with the insured or the insured's auto." Andersen v. Baccus, 109 N.C. App. at 19, 426 S.E.2d at 107. The court also considered whether the policy was in conflict with the uninsured motorist statute, N.C.G.S. ยง 20-279.21 (1993), and concluded that statute does not "provide for uninsured motorist coverage where a phantom vehicle allegedly causes a collision between two other automobiles but makes no physical contact with either." Andersen v. Baccus, 109 N.C. App. at 19, 426 S.E.2d at 107. The Court of Appeals also relied on its cases interpreting the statute as requiring a collision, direct or indirect, between a hit-and-run driver's car and that of the insured . Petteway v. Sout
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