Proctor v. North Carolina Farm Bureau Mutual Insurance

Judge GREENE

dissenting.

I disagree with the conclusion of the majority that the plaintiff is entitled to stack the underinsured coverage in the Farm Bureau policy issued to George Proctor (Proctor policy) with the underin-sured coverage in the Farm Bureau policy issued to Country Manor Antiques (Country Manor policy). I also disagree with the majority that the plaintiff is entitled to stack the underinsured coverages on the three vehicles insured in the Proctor policy.

On 27 September 1984, the date of the accident, N.C.G.S. § 20-279.21(b)(4) was silent on the right of an insured or owner to stack multiple underinsurance coverages. The statute only required that insurance companies make available underinsurance coverage in an amount “not to exceed the policy limits for automobile bodily injury liability as specified in the owner’s policy.” N.C.G.S. § 20-279.21(b)(4) (1983). Underinsured coverage was not statutorily required. Id. Furthermore, the courts cannot, when a statute is silent on an issue, insert into the statute under the guise of sound public policy, language not contained therein. State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 757 (1974). Therefore, because underin-sured motorists coverage was not mandated by statute and because the statute was silent on the stacking issue, whether stacking was permitted in 1984 is controlled by the policy of insurance. Allis v. Nationwide Mut. Ins. Co., 88 N.C. App. 595, 597, 363 S.E.2d *33880, 882 (1988). Our courts have consistently held that in the absence of a statute requiring otherwise, unambiguous policy language may prohibit stacking of insurance coverages. Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 508-09, 246 S.E.2d 773, 779-80 (1978); Hamilton v. Travelers Indem. Co., 77 N.C. App. 318, 323-24, 335 S.E.2d 228, 232 (1985), disc. rev. denied, 315 N.C. 587, 341 S.E.2d 25 (1986).

Interpolicy Stacking

In the section of the Proctor policy relating to “uninsured” coverage, which includes “underinsured” coverage, the policy provides:

If this policy and any other auto insurance issued to you apply to the same accident, the maximum limit of liability for your injuries under all the policies shall not exceed the highest applicable limit of liability under any one policy.

There is no dispute that both the Proctor and the Country Manor policies apply to the accident in question and thus provide underin-surance coverage to Joyce Batts Proctor (Mrs. Proctor). The issue in this case, under the terms of the Proctor policy, is whether the Country Manor policy was “any other auto insurance issued” to Mrs. Proctor. Because Mrs. Proctor was a partner in Country Manor Antiques, the owner of the Country Manor policy, that policy was issued to her. Therefore, under the plain language of the Proctor policy, plaintiff is not entitled to interpolicy stack the underinsured coverages under both the Proctor policy and the Country Manor policy.

Intrapolicy Stacking

The Proctor policy provides:

The limit of bodily injury liability shown in the Declarations for . “each person” for [uninsured and underinsured] Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. . . . This is the most we will pay for bodily injury and property damage regardless of the number of . .. [vehicles or premiums shown in the Declarations. . . .

This policy language, read in conjunction with the Declarations, provides that the underinsured limit of liability is $100,000, although the policy provided underinsurance coverage on three separate vehicles. Accordingly, the plaintiff is not entitled to stack the underin-*34sured coverages on the three vehicles insured in the Proctor policy. Cf. Hamilton, 77 N.C. App. at 324, 335 S.E.2d at 232 (uninsured coverage stacking prohibited where policy contained clear language).

Plaintiff argues that prohibiting the stacking of underinsured coverages in this instance allows the insurance company to collect a premium in exchange for nothing. Although “it appears that the plaintiff is correct in this argument ... it does not justify [the court] rewriting the policy.” Davidson v. United States Fidelity and Guar. Co., 78 N.C. App. 140, 143, 336 S.E.2d 709, 711, aff’d per curiam, 316 N.C. 551, 342 S.E.2d 523 (1986) (refusing to modify policy language where underinsurance motorist coverage was no benefit to insured). The issuance of such a policy of insurance may however justify an action by an insured against the insurance company and its agent for fraud, unfair and deceptive trade practice, and negligence. See Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 376 S.E.2d 488, disc. rev. denied, 324 N.C. 577, 381 S.E.2d 772 (1989).

I would therefore reverse the order of the trial court and remand for entry of summary judgment for defendant insurance company.