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Willis v. Allstate Insurance Co.8/2/2005
urt erred by (I) granting defendants' motions for summary judgment; and (II) denying plaintiff's motion for leave to amend the complaint.
I.
Plaintiff first argues that the trial court erred by granting summary judgment for defendants. We disagree.
A trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. Rule 56(c) (2003). " he evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The appellate standard of review for summary judgment "involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law." Guthrie v. Conroy, 152 N.C. App. 15, 21, 567 S.E.2d403, 408 (2002) (citations omitted). Thus, we review each of plaintiff's claims pursuant to this standard.
Breach of Contract
Plaintiff first argues that the trial court erred by granting summary judgment on the issue of breach of contract. We disagree.
As an initial matter, we note that plaintiff's complaint alleges that "defendant, Allstate Insurance Company[,] has breached their contract" by failing to cover Mr. Willis's injury from an uninsured motorist accident under the umbrella policy. On appeal, plaintiff now asserts breach of contract by Williams for his failure to procure a $1,000,000 insurance policy that would cover personal injury for Mr. Willis in an automobile accident. Plaintiff thereby attempts to shift the focus of her breach of contract claim from Allstate's alleged failure to fulfill the terms of the insurance contract to Williams' failure to procure an insurance policy with adequate coverage. " laintiff cannot now assert a contradictory position, or 'swap horses between courts in order to get a better mount.'" Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 103 (2002) (quotation and citation omitted). Therefore, for the purposes of this action, plaintiff's breach of contract claim is limited to Allstate.
"The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract." Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (citing Jackson v. California Hardwood Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)). In the present case,plaintiff does not dispute the validity of the umbrella insurance contract. Thus, we focus our attention on whether the terms of the umbrella policy were breached.
The terms of the umbrella policy provide as follows:
Coverage - When We Pay
Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.
Personal Activities
Coverage applies to an occurrence arising only out of . . . the occupancy of a land vehicle, aircraft or watercraft by an insured for personal transportation.
General Exclusions - When This Policy Does Not Apply
This policy will not apply . . . to personal injury to an insured.
The circumstances surrounding Mr. Willis's death do not give rise to a claim under this policy. The policy unequivocally states that personal injuries to an insured are not covered. According to the policy, "personal injury" includes "death of any person." Allsta
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