Jones v. General Accident Insurance Co. of America

ORR, Judge.

The issue on appeal is whether plaintiff, an insured by virtue of her occupancy in a covered vehicle owned by her father, may *614aggregate or “stack” the UIM coverage on her father’s four insured vehicles covered by the policy issued by defendant.

Our courts have consistently held that N.C. Gen. Stat. § 20-279.21 establishes two classes of persons insured: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle. See, e.g., Crowder v. N. C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 340 S.E.2d 127, disc. review denied, 316 N.C. 731, 345 S.E.2d 387 (1986); see also Sproles v. Greene, 329 N.C. 603, 407 S.E.2d 497 (1991) (under N.C. Gen. Stat. § 20-279.21(b)(3) “persons insured” include any person who uses with the consent, express or implied, of the named insured, the insured vehicle). For UIM purposes, class one persons insured are covered even where the insured vehicle is not involved in the insured’s injuries while class two persons insured are covered only when the insured vehicle is involved in the insured’s injuries. Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139, 400 S.E.2d 44, reh’g denied, 328 N.C. 577, 403 S.E.2d 514 (1991).

Two recent opinions of this Court addressed the previously unanswered question of whether the ability to stack UIM coverage is available to a class two person insured. In Nationwide Mutual Ins. Co. v. Silverman, 104 N.C. App. 783, 411 S.E.2d 152 (1991) (filed 17 December 1991) (pet. for. disc. review pending), a unanimous court held that once a claimant is a “person insured” they are entitled to stack UIM coverage. This is true whether the claimant is a class one insured or a class two insured. Id. Likewise, the majority opinion on the stacking issue in Leonard v. North Carolina Farm Bureau Mut. Ins. Co., 104 N.C. App. 665, 411 S.E.2d 178 (1991) (filed 17 December 1991) (appeal pending) held that stacking of UIM coverage is allowed whenever an injured party qualifies as a “person insured” under the statute. In that case, the person insured was a class two insured.

In this case it is undisputed that plaintiff, by virtue of her occupancy in a covered vehicle, is a “person insured” under the policy. Likewise, plaintiff is a “person insured” pursuant to N.C. Gen. Stat. § 20-279.21(b)(3). Although not a member of Price’s household or a named insured on his policy, plaintiff was driving her father’s car with his permission. Under the reasoning of the Silverman and Leonard decisions, once a claimant establishes that *615he is a “person insured” — regardless of class status — he has the ability to stack UIM coverage.

In the present case, the trial court correctly recognized that plaintiff, as a “person insured,” was entitled to stack the coverage from all four Price vehicles totaling $400,000. The defendant is entitled to credits of $15,000, the amount previously paid to plaintiff on behalf of the liability carrier for the underinsured motorist, and $85,000, the amount previously paid to plaintiff by defendant which represents the available underinsured motorist coverage provided by defendant on the automobile which plaintiff was driving at the time of the accident.

The decision of the trial court is

Affirmed.

Judges Johnson and Eagles concur.