An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA08-422
NORTH CAROLINA COURT OF APPEALS
Filed: 3 February 2009
MICHAEL RUTHERFORD, JR.
Plaintiff,
v. Mecklenburg County
No. 07-CVS-10323
GENERAL INSURANCE COMPANY
OF AMERICA,
Defendant.
Court of Appeals
Appeal by plaintiff from summary judgment entered 12 February
2008, by Judge Robert P. Johnston in Mecklenburg County Superior
Court. Heard in the Court of Appeals 22 October 2008.
Slip Opinion
Myers Law Firm, PLLC, by R. Lee Myers and Matthew R. Myers,
for plaintiff-appellant.
Moreau & Marks, PLLC, by Daniel C. Marks, for defendant-
appellee.
STEELMAN, Judge.
Plaintiff was entitled to stack the Liberty Mutual Insurance
policy and both of the General Insurance policies in determining
whether the motor vehicle involved in the accident was an
“underinsured highway vehicle” for purposes of underinsured
motorist coverage. The entire credit for the payment of liability
coverage is to be applied to the primary coverage and not the
excess coverage.
I. Factual and Procedural Background
-2-
On 19 February 2006, plaintiff was a passenger in a motor
vehicle operated by William Jonathan Sorenson (Sorenson).
Plaintiff suffered bodily injury when Sorenson’s vehicle left the
roadway and collided with a tree.
At the time of the accident, the motor vehicle was covered by
a Liberty Mutual Insurance Policy (the Liberty Mutual policy),
which was issued to Sorenson’s parents. The Liberty Mutual policy
provided $100,000.00 per person in liability coverage and
$100,000.00 per person in underinsured motorist coverage for a
person occupying the covered vehicle. Plaintiff was also insured
by General Insurance under two separate automobile policies. Each
General Insurance policy provided $100,000.00 per person in
underinsured motorist coverage. After the accident, Liberty Mutual
paid the plaintiff $100,000.00 under its policy. General Insurance
paid plaintiff $50,000.00 under each of its policies for a total
payment of $100,000.00.
On 23 May 2007, plaintiff filed a complaint in Mecklenburg
County Superior Court seeking a declaration that there was
$100,000.00 in coverage available under each General Insurance
policy to satisfy plaintiff’s claims, a total of $200,000.00.
Defendant filed an answer on 30 July 2007, asserting that each
policy’s $100,000.00 limit of underinsured motorist coverage should
be reduced by $50,000.00 based upon a credit for Liberty Mutual’s
liability payment of $100,000.00. On 3 December 2007, defendant
moved for summary judgment requesting the trial court to declare
that General Insurance’s coverage was limited to $100,000.00.
-3-
On 12 February 2008, the trial court entered summary judgment
in favor of defendant.
Plaintiff appeals.
II. Standard of Review
Upon de novo review of a trial court’s ruling on a motion for
summary judgment, “this Court’s task is to determine, on the basis
of the materials presented to the trial court, whether there is a
genuine issue as to any material fact and whether the moving party
is entitled to judgment as a matter of law.” Coastal Plains
Utilities, Inc. v. New Hanover Cty., 166 N.C. App. 333, 340, 601
S.E.2d 915, 920 (2004) (citations omitted).
III. Analysis
This case presents the identical issue as was decided by this
Court in Benton v. Hanford,___ N.C. App. ___, ___ S.E. 2d ___
(2009).
In Benton, we held that a tortfeasor’s underinsured motorist
coverage, which provided coverage to a passenger occupying that
vehicle, may be stacked with the injured passenger’s separate
underinsured motorist policy in order to determine the total
underinsured coverage available. We further held that the credit
for the payment under the liability portion of the tortfeasor’s
policy was to be applied against the underinsured motorist coverage
for the tortfeasor’s vehicle and not against the excess coverage.
We are bound by decisions from a prior panel on this Court.
“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is
-4-
bound by that precedent, unless it has been overturned by a higher
court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989). The identical issue having been decided in Benton, we are
bound by that decision.
We hold that the Liberty Mutual policy and the two General
Insurance policies are to be stacked for a total of $300,000.00 in
underinsured motorist coverage. We further hold that the payment
under the Liberty Mutual policy is to be credited against the
Liberty Mutual underinsured motorist coverage, and no credit is to
be applied against the General Insurance coverage. There is,
therefore, a total of $200,000.00 available in underinsured
motorist coverage to satisfy plaintiff’s claims.
IV. Conclusion
The order of the trial court is reversed, and this matter is
remanded to the trial court for entry of a judgment consistent with
this opinion.
REVERSED AND REMANDED.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).