concurring.
Although I fully concur with the opinion of the majority, I do so reluctantly with respect to Part III. The facts in this case are somewhat different from those of the Sellers case, relied on by the majority in Part III. In Sellers the tortfeasor was originally a named party defendant and the underinsured (UIM) carrier was an unnamed party defendant. The action against the named defendant was dismissed and the trial court ordered that the UIM carrier be included as a named defendant. In this case, both the tortfeasor and the UIM car*412rier were named defendants. The plaintiff voluntarily dismissed its claim against the tortfeasor with a reservation that it was “not intended to and shall not affect [its] claims for relief asserted against” the UIM carrier. The trial court thereafter ordered that the case be tried in the name of the tortfeasor, not the name of the UIM carrier. The jury was asked to determine whether the plaintiff had been injured by the negligence of Thomas E. Brooks, the tortfeasor. The jury returned a verdict in favor of the plaintiff on this issue and the trial court entered a judgment against Nationwide.
Nonetheless, the language of Sellers does appear to permit the UIM carrier to defend the action in the name of the tortfeasor, although the tortfeasor has been dismissed from the case, and even when the UIM carrier is a named party defendant. In other words, the jury can be instructed that the tortfeasor is the defendant in the case, when in fact the tortfeasor is not a party defendant and the UIM carrier is a party defendant.
I am aware of the public policy considerations in support of this type of procedure. As stated in Sellers, juries will “more likely concentrate on the facts and the law” and not be influenced by the fact that an insurance company is the party defendant. Sellers, 108 N.C. App. at 699, 424 S.E.2d at 670. My concern is that section 20-279.21(b)(4) only speaks in terms of allowing the UIM carrier to defend as an unnamed party defendant when the tortfeasor is a party defendant and that any extension of that rule should be in the province of the legislature. In the absence of legislation permitting the procedure used in this case, it would appear that the action is properly filed against the UIM carrier as a named defendant, with the burden on the plaintiff to show he is legally entitled to recover damages from the tortfeasor for injuries sustained in a collision involving the underinsured vehicle. See Williams v. Nationwide Mut. Ins. Co., 269 N.C. 235, 237, 152 S.E.2d 102, 105 (1967); 3 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 34.1 (2d ed. 1995) (plaintiff has burden of showing underinsured motorist was negligent, even though action is against UIM carrier). Because I am bound by Sellers, however, I join with the majority in affirming the trial court.