concurring in part and dissenting in part.
The majority here affirms the grant of summary judgment to the plaintiff insurer. I agree with the majority’s analysis of the policy language, and the distinction drawn between this case and Abemethy, to the effect that the allegations of the complaint include claims which are potentially covered by the policy. However, I conclude that the defendants have presented a forecast of evidence raising genuine issues of material fact as to whether those claims are covered. I do not agree that either Commercial Union Ins. Co. v. Mauldin, 62 N.C. App. 461, 463, 303 S.E.2d 214, 216 (1983) or Belcher v. Fleetwood Enters., Inc., 162 N.C. App. 80, 590 S.E.2d 15 (2004), applies here. Instead, I believe we are bound by the three cases cited by defendants, which hold that one may explain a previous guilty plea in a related civil case. Thus, I dissent on this issue, and vote to reverse and remand for trial.
As the majority notes, Paragraph 8 of the Exclusion provisions of the policy indicates that it will not apply to “intentionally harmful” acts or omissions. Thus, if Lahoud’s conduct was accidental or negligent, but he intended no harm, the policy could provide coverage. The depositions and affidavits explicitly contend that the disputed conduct was “negligent or unintentional,” and that he “did not intend or expect to cause harm or injury.”
Lahoud’s deposition and affidavit create the issue of fact, when viewed with the other documents, including the prior guilty plea, in the light most favorable to Lahoud. The cases cited by defendant, which are not mentioned by the plaintiff in its brief, or by the majority, clearly establish that, while a guilty plea is admissible in a civil proceeding involving a related matter, it is not conclusive. In support of this proposition, defendant cites three cases: Boone v. Fuller, 30 N.C. App. 107, 226 S.E.2d 191 (1976); Teachey v. Woolard, 16 N.C. App. 249, 191 S.E.2d 903, cert. denied, 282 N.C. 430, 192 S.E.2d 840 *214(1972); Grant v. Shadrick, 260 N.C. 674, 133 S.E.2d 457 (1963). Plaintiff cites no authority to the contrary, and, indeed does not attempt to distinguish these cases, which do clearly hold as defendant contends. For example, this Court stated, relying on Grant, that “evidence that a defendant entered a plea of guilty to a criminal charge arising out of [an incident] ... is generally admissible in a civil trial for damages arising out of the same [incident], although it is not conclusive and may be explained.” Teachey, 16 N.C. App. at 252, 191 S.E.2d at 906. None of these cases have been overruled or reversed, and as such are binding on this Court. Applying these cases here, I conclude that the deposition testimony and affidavits explaining the plea are sufficient to create genuine issues of material fact as to whether Lahoud committed any acts or omissions affecting the minor, and, if so, whether such conduct was accidental or negligent.
The majority relies upon Commercial Union, which relied on a case from the Fourth Circuit. The federal case, Stout v. Grain Dealers Mutual Insurance Company, 307 F.2d 521 (4th Cir. 1962), is not binding on this Court in light of the more recent decisions of this Court and the North Carolina Supreme Court, cited above.
More important, however, is that Commercial Union is clearly distinguishable from the case here. As the majority notes, the issue there was whether an insurance policy covered conduct by a Mr. Wilmoth, or whether the conduct was excluded as “intended” bodily injury. Wilmoth previously pled guilty to second-degree murder for the shooting at issue. This is where the similarity ends. Here, the issue arises because Lahoud explained his prior guilty plea in his affidavit and deposition, as the cases hold that he may, thus creating a factual issue as to whether his conduct was accidental. On the contrary, in Commercial Union, Wilmoth made no attempt to explain his prior guilty plea, and in fact stipulated that he intended to shoot a victim. Thus, the issue was not whether intent was an issue of fact, but simply whether the policy language on its face could be construed to cover the stipulated conduct.
The Belcher case, also relied upon by the majority, is clearly distinguishable as well. Mr. Belcher was a plaintiff in a civil case alleging unfair trade practices. In his deposition in the case, he admitted he suffered no damages, thus establishing the absence of an element of his claim. Later, in an affidavit opposing summary judgment in the same case, he contradicted himself on this point in an attempt to *215create an issue of fact on this element. This Court held, consistent with earlier decisions, that the plaintiff in a civil case may not defeat summary judgment by simply contradicting himself in an attempt to create a genuine issue of fact.
Here, unlike in either Commercial Union or Belcher, Lahoud presented testimony and an affidavit to explain his prior guilty plea, as our appellate Courts have held he may do. He did not stipulate to intentional conduct, as in Commercial Union, nor did he contradict his own previous sworn statements in the same civil case, as in Belcher. Because I believe that these cases do not apply and that we are bound to follow Boone, Teachey, and Grant, I respectfully dissent.
Accordingly, I would reverse the grant of summary judgment and remand for trial.