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Proctor v. North Carolina Farm Bureau Mutual Insurance Co.1/28/1994
FRYE, Justice.
In this appeal based solely on the Dissenting opinion in the Court of Appeals, North Carolina Farm Bureau Mutual Insurance Company [hereinafter Farm Bureau] contends that the Court of Appeals erred (1) in determining that plaintiff is entitled to stack the underinsured motorist [hereinafter UIM] coverage in the policy issued to the named plaintiff (the Proctor policy) with the UIM coverage in the policy issued to Country Manor Antiques (interpolicy stacking); and, (2) in determining that plaintiff is entitled to stack the UIM coverages on the three vehicles insured in the Proctor policy (intrapolicy stacking).
Justice Parker recused and took no part in the consideration or decision of this case. The remaining members of the Court are equally divided with three members voting to affirm the decision of the Court of Appeals as to interpolicy stacking and three members voting to reverse. Accordingly, that portion of the decision of the Court of Appeals which affirmed the trial court as to interpolicy stacking is left undisturbed and stands without precedential value. See Nesbit v. Howard, 333 N.C. 782, 429 S.E.2d 730 (1993).
For the reasons stated hereinafter, we conclude that the Court of Appeals erred as to the issue of intrapolicy stacking. Accordingly, we must reverse that portion of the Court of Appeals' decision.
The circumstances giving rise to this case are as follows: Plaintiff's wife, Joyce Batts Proctor, was killed in a traffic accident on 27 September 1984 while driving a van owned by Country Manor Antiques [hereinafter Country Manor], a partnership in which she was a partner. Mrs. Proctor's death was caused by the negligence of William Gray Edwards, Jr., who was driving the other vehicle involved in the accident. Edwards also died as a result of the accident. His vehicle was covered by a liability insurance policy issued by State Farm Mutual Insurance Company [hereinafter State Farm] which provided maximum liability coverage limits of $25,000 per person and $50,000 per accident. State Farm paid one-third of its $50,000 per accident limit to plaintiff and the remaining amount was paid to other injured parties. In addition, the Edwards estate paid plaintiff one-third of its $10,000 of available assets.
Plaintiff's wife was covered by two automobile insurance policies, both of which were issued by defendant Farm Bureau. One was a business policy issued to Country Manor which provided liability insurance at limits for wrongful death of $100,000 per person and $300,000 per accident, as well as uninsured motorist coverage [hereinafter UM]. The other policy was a personal policy issued to George L. Proctor. The Proctor policy listed Joyce Proctor as an insured driver and provided coverage for three vehicles belonging to the Proctors. For each of plaintiff's three vehicles, the Proctor policy provided liability insurance at limits of $100,000 per person and $300,000 per accident as well as UM coverage. Both the Country Manor policy and the Proctor policy recited that UIM coverage would not be provided unless the insured specifically requested it. However, this provision of both policies was contrary to N.C.G.S. ยง 20-279.21(b)(4) which required that UIM coverage be provided unless it was specifically rejected. Neither plaintiff, plaintiff's decedent, nor Country Manor rejected UIM coverage; therefore, Farm Bureau conceded that UIM coverage was provided in both policies pursuant to subdivision (b)(4).
The parties disagreed as to the appropriate amount of UIM coverage; consequently, plaintiff filed an action on 18 September 1986 asserting a claim against Farm Bure
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