UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COMMERCIAL UNION MIDWEST
INSURANCE COMPANY,
Plaintiff-Appellee,
v. No. 01-2233
CANDACE J. WEST; JAMES L. WEST;
VICKY WEST,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CA-00-530-5-F3)
Argued: April 4, 2002
Decided: July 26, 2004
Before WILKINS, Chief Judge, and WIDENER and
KING, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: James Cameron MacRae, Jr., MACRAE, PERRY, WIL-
LIFORD & MACRAE, L.L.P., Fayetteville, North Carolina, for
Appellants. Dana Hefter Davis, YOUNG, MOORE & HENDERSON,
P.A., Raleigh, North Carolina, for Appellee.
2 COMMERCIAL UNION MIDWEST v. WEST
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Commercial Union Midwest Insurance Company (Commercial
Union) filed this declaratory judgment action against James and
Vicky West and their daughter, Candace (collectively, "the Wests").
Commercial Union sought a declaration that the Wests were entitled
to only $100,000 of underinsured motorist (UIM) coverage under
automobile insurance policies issued by Commercial Union. The dis-
trict court agreed and granted summary judgment to Commercial
Union. For the reasons set forth below, we reverse and remand.
I.
The facts are undisputed. In 1994, James West purchased automo-
bile insurance from independent agent Belivia Autry. At that time,
Mr. West signed a selection form opting for UIM limits of $100,000
per person and $300,000 per accident. Although Commercial Union
was not the insurer in 1994, the policy was rolled over to become
Commercial Union policy number PZ-Z3239375 ("the 75 policy") on
June 23, 1997. The Wests renewed this policy on June 23, 1998 and
on June 23, 1999.
As of June 1999, the Wests owned four vehicles, all of which were
insured under the 75 policy. In July 1999, Mrs. West purchased a fifth
vehicle, a 1999 Ford Mustang, for Candace. Mrs. West telephoned
Autry from the dealership and asked to "add" the Mustang to the
Wests’ policy. J.A. 231. Mrs. West informed Autry that the Wests
wanted the same insurance coverage on the Mustang as on their other
vehicles. Autry did not specifically ask Mrs. West about UIM cover-
age.
In July 1999, Commercial Union’s processing system could not
accommodate more than four vehicles per automobile insurance pol-
COMMERCIAL UNION MIDWEST v. WEST 3
icy. Additional vehicles had to be shown on separate documents.
Accordingly, Commercial Union issued policy number PZ-Z420998R
("the 8R policy") to the Wests covering the new Mustang. In addition
to having a different policy number, the 8R policy was billed sepa-
rately from the 75 policy. The Wests received a declaration page for
the 8R policy showing that the premium for this policy covered bod-
ily injury liability, property damage, and medical payments. The dec-
laration page did not show a premium for UIM coverage and, in fact,
none was charged.
On August 23, 1999, the Wests paid the first quarterly premium
payment on the 8R policy. However, after the Wests failed to make
another payment on the 8R policy, Commercial Union cancelled it
effective November 13, 1999. The following day, Candace was
injured when an automobile in which she was a passenger—which
was not owned by the Wests—was involved in an accident. The driv-
er’s insurer paid its liability limits of $25,000 to Candace and, there-
after, Commercial Union paid her its UIM limit of liability under the
75 policy—$100,000 minus credit for the driver’s $25,000, for a total
of $75,000.1
In December 1999, Autry learned of Candace’s injuries and asked
Commercial Union whether a replacement policy could be issued that
would relate back to the effective cancellation date of the 8R policy.
Commercial Union thereafter issued replacement policy number PZ-
Z4559996 ("the 96 policy") with coverage identical to that of the can-
celled 8R policy. Autry did not ask whether the Wests wished to pur-
chase additional UIM coverage and no new coverage selection form
was completed.
Commercial Union subsequently filed this action seeking a declara-
tion that it was not obligated to pay Candace an additional $100,000
of UIM coverage under the 96 policy. The Wests responded that not
only was Candace entitled to an additional payment but that the
amount of UIM coverage under the 96 policy was actually $1 million.
This was so, the Wests argued, because Commercial Union failed to
1
Commercial Union has never disputed Candace’s entitlement to UIM
coverage under the 75 policy.
4 COMMERCIAL UNION MIDWEST v. WEST
require them to make an election regarding UIM coverage when it
issued the 96 policy.
Following discovery, the parties cross-moved for summary judg-
ment. The district court granted summary judgment to Commercial
Union, reasoning that the 96 policy (and the 8R policy before it) was
simply an extension of the 75 policy, not a separate policy. Because
UIM coverage is issued on a per-policy basis, the conclusion of the
district court that there was only one policy was fatal to the Wests’
claim.
II.
We review the grant of summary judgment de novo, viewing the
facts in the light most favorable to the Wests. See Figgie Int’l, Inc.
v. Destileria Serralles, Inc., 190 F.3d 252, 255 (4th Cir. 1999). Sum-
mary judgment is appropriate "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 the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
A.
The Wests’ claim of entitlement to additional UIM rests largely on
a provision of North Carolina law that allows "stacking" of UIM cov-
erage provided by different insurance policies. See N.C. Gen. Stat.
§ 20-279.21(b)(4) ¶2 (2003). They maintain that the 96 policy is not
simply an extension of the 75 policy, but rather is a new and separate
policy, under which they are entitled to additional UIM coverage.
As support for their claim, the Wests point to Iodice v. Jones, 522
S.E.2d 593 (N.C. Ct. App. 1999), in which the North Carolina Court
of Appeals addressed a factually similar dispute. There, the plaintiffs
owned three vehicles that were insured by GEICO. When the plain-
tiffs purchased a fourth vehicle, GEICO informed them that "the max-
imum number of vehicles which GEICO could maintain on a single
policy was three, and that in order to cover [the] fourth vehicle,
GEICO would need to issue a second policy." Id. at 594 (internal quo-
COMMERCIAL UNION MIDWEST v. WEST 5
tation marks omitted). The two policies had different numbers and
different renewal dates. The court rejected GEICO’s claim that the
second policy was merely an extension of the first, necessitated by the
limitations of its internal processing system. Relying on the facts that
the policies had different numbers and different billing dates, the
court concluded that they were, in fact, separate policies. See id. at
596.
We conclude that Iodice is controlling. Here, as in Iodice, the two
policies in question had different numbers and different billing dates.2
Moreover, Commercial Union cancelled the 8R policy, but not the 75
policy, for nonpayment. We are unaware of, and the parties do not
direct us toward, a way in which an insurer can cancel a portion of
a single policy.
Commercial Union’s attempt to distinguish Iodice—on the basis
that the second policy in Iodice listed UIM coverage on the declara-
tions page and the plaintiffs paid a premium for such coverage—is
unavailing. At best, this fact creates an ambiguity regarding whether
there was one policy or two. Under firmly established North Carolina
law, ambiguities in insurance policies must be resolved against the
insurer. See id. (citing Brown v. Lumbermans Mut. Cas. Co., 390
S.E.2d 150, 153 (N.C. 1990)).
B.
Having determined that Commercial Union issued two separate
insurance policies to the Wests, we turn to the question of the amount
of any additional UIM coverage under the 96 policy. For the reasons
set forth below, we conclude that the Wests are entitled to an addi-
tional $100,000 in UIM coverage.
North Carolina law requires that automobile insurance policies
issued in North Carolina exceeding statutory minimum coverage lim-
its and providing uninsured motorist coverage provide UIM coverage
in not less than the amount specified by statute for bodily injury lia-
2
Indeed, unlike in Iodice, the policy numbers at issue here are not even
similar. Cf. Iodice, 522 S.E.2d at 596 (noting that policy numbers were
367-90-75 and 367-90-75-1).
6 COMMERCIAL UNION MIDWEST v. WEST
bility and not more than $1 million, as chosen by the policy holder.
See N.C. Gen. Stat. § 20-279.21(b)(4) ¶1. The policy holder may
reject UIM coverage but must do so in writing. See id. ¶¶6, 7. When
an insured has not submitted a written rejection of UIM coverage and
the policy does not specify the amount of such coverage, North Caro-
lina law provides that "the amount of [UIM] coverage shall be equal
to the highest limit of bodily injury liability coverage for any one
vehicle in the policy." Id. ¶ 6. Here, the parties agree that this limit
is $100,000. Accordingly, that is the amount of UIM coverage to
which the Wests are entitled.3
III.
For the reasons set forth above, we reverse and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED
3
The Wests maintain that if they had been given the opportunity when
purchasing the 8R policy, they would have opted for $1 million in UIM
coverage. Even if this is so, it is irrelevant under the governing statute.
In any event, the only available evidence—Autry’s deposition testimony
—contradicts the Wests’ claim. Autry testified that she asked Mrs. West
if she wanted the same coverage on the Mustang as the Wests had on
their other vehicles, and Mrs. West responded affirmatively. This "same
coverage" would have included the $100,000/$300,000 UIM coverage
provided by the 75 policy.