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Manning v. Tripp12/3/1991
The parties to this appeal have stipulated to the following facts:
Plaintiff passenger, Nannie Mae Manning, sustained injuries in an automobile accident on 7 August 1989. The automobile owned and operated by her husband, John Harrell Manning, plaintiff driver, collided with an automobile owned and operated by defendant, Billy Ray Tripp.
At the time of the accident, Mr. Manning owned two automobiles including the subject vehicle. Both vehicles were insured by Nationwide Insurance Company ("Nationwide") under a policy carrying liability and underinsured coverage up to $50,000 per person for each vehicle. Defendant Tripp's automobile was insured by Allstate Insurance Company under a policy providing liability coverage of $50,000 per person.
Notwithstanding the dispute as to the existence of Underinsured Motorist Insurance Coverage (hereinafter "UIM coverage"),
the parties agreed that Nationwide's maximum exposure to plaintiff is $50,000, the difference between $100,000 (the aggregate of the UIM coverage on the two policies covering the Manning vehicle) and the $50,000 in liability insurance coverage provided by Allstate. By further agreement of the parties, Allstate paid its full limits of liability insurance coverage to plaintiff. The parties further stipulated that if it is adjudicated that Nationwide owes any UIM payment for damages for Mrs. Manning's claim, Nationwide will pay plaintiffs $50,000; but if it is adjudicated that Nationwide owes no UIM payment for damages for her claim, Nationwide shall have no obligation to plaintiffs.
By Consent Order signed by Judge James D. Llewellyn, the claim by Mr. Manning was dismissed, and this action was converted into a Declaratory Judgment action whereby Mrs. Manning sought a determination of her rights to UIM benefits from Nationwide. From the judgment rendered in favor of plaintiff and against Nationwide, who appeared in the action as an unnamed party pursuant to N.C.G.S. § 20-279.21(b)(3) and (4) (1989), Nationwide appealed.
I.
Appellant first contends that, under the facts of this incident, the automobile owned and operated by Tripp was not an "underinsured highway vehicle" as defined by N.C.G.S. § 20-279.21(b)(4). Appellant argues that, as a threshold issue, plaintiffs must show that the limits of liability under defendant's Allstate policy are less than the limits of liability under Mr. Manning's policy with Nationwide. As such, he contends that the separate $50,000 underinsured coverages on the two Manning vehicles should not be aggregated to allow for underinsurance in this case in which the tortfeasor's vehicle also carried $50,000 in coverage. We disagree.
North Carolina General Statutes section 20-279.21(b)(4) governs UIM coverage and provides, in pertinent part,
An "uninsured motor vehicle," as described in subdivision (3) of this subsection, includes an "underinsured highway vehicle," which means a highway vehicle with respect to ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the owner's policy. . . . Underinsured motorist coverage shall be deemed to apply when, by reason
of payment or judgment or settlement, all liability bonds or insurance policies providing coverage for bodily injury caused by the ownership, maintenance, or use of the underinsured highway vehicle have been exhausted. Exhaustion of such liability coverage for purpose of any single liability claim prese
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