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Leonard v. North Carolina Farm Bureau Mutual Insurance Co.12/17/1991
Defendant appeals from an order entered 6 December 1990 granting partial summary judgment for the plaintiffs on the issues of whether Andre Leonard (plaintiff) is covered under his brother's automobile insurance policy issued by the defendant and whether
the plaintiff is entitled to "stack" the limits of liability of underinsured motorist (UIM) coverage under that policy.
On 20 February 1988, the defendant issued an automobile insurance policy to Jimmy Leonard (Leonard), the plaintiff's brother. The policy covered three vehicles and provided liability and UIM coverage for bodily injury in the amount of $50,000.00 per person and $100,000.00 per accident. In August, 1988, Leonard and the plaintiff worked for the Department of Sanitation in Raleigh, North Carolina. Leonard lived in Spring Hope, North Carolina, and the plaintiff lived somewhere nearby with his mother-in-law. To get to work in Raleigh, Leonard usually drove them both to work in his van, one of the three vehicles covered by his automobile insurance policy.
At approximately 5:30 a.m. on 11 August 1988, Leonard, the plaintiff, and several other people left Spring Hope to go to work in Raleigh. Leonard drove the van, and the plaintiff rode in the back seat. After driving along U.S. Highway 264 for about fifteen minutes, the left rear tire of the van went flat. Leonard drove the van onto the right shoulder of the road to change the tire. Because the shoulder of the road was not wide enough to park the van entirely off the road, Leonard parked the van so that the left front and rear tires remained on the white line of the paved portion of the shoulder of the road. He then turned on the emergency flashers, and he and the plaintiff exited the van to change the tire. After the plaintiff loosened the lug nuts, Leonard jacked up the van and removed the lug nuts. Leonard then asked the plaintiff to bring him the spare tire from the back of the van. The plaintiff got the tire for Leonard and began rolling it around the left side of the van. As he rolled the tire towards his brother, he was struck by a vehicle driven by Christopher Wilkerson (Wilkerson) and sustained severe and disabling injuries. He also incurred medical bills in excess of $53,000.00.
At the time of the accident, Wilkerson's vehicle was covered by an automobile insurance policy issued by Allstate Insurance Company with limits of liability of $25,000.00 per person and $50,000.00 per accident. On 12 December 1988, the plaintiff and his wife filed a personal injury action against Wilkerson. On 21 March 1990, the plaintiffs released their claims against Wilkerson in exchange for $25,000.00, the limit of liability under Wilkerson's automobile insurance policy, and voluntarily dismissed with prejudice their action against Wilkerson.
On 23 March 1990, the plaintiffs filed a complaint against the defendant seeking UIM coverage under Leonard's automobile insurance policy in an amount of $150,000.00, the aggregate of the three $50,000.00 coverages provided by the policy, less the $25,000.00 paid by Wilkerson's insurance carrier. The defendant filed an answer on 18 June 1990. The plaintiffs and the defendant made summary judgment motions, and on 6 December 1990, the trial court entered partial summary judgment for the plaintiffs on the issues of coverage and stacking and denied the defendant's motion.
The record reflects and the defendant's counsel conceded at oral argument that Wilkerson's liability for the accident and the plaintiff's damages have not been determined. Therefore, we note that the trial court's partial summary judgment order from which the defendant appeals is an interlocutory order not affecting a substan
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