Anderson v. Allstate Insurance Company , 266 N.C. 309 ( 1966 )

145 S.E.2d 845 (1966) 266 N.C. 309

Claytie C. ANDERSON, Individually, and Claytie C. Anderson, Administratrix of the Estate of Carl Edward Anderson, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Original Defendant, and
National Grange Mutal Insurance Company, Additional Party Defendant.

No. 460.

Supreme Court of North Carolina.

January 14, 1966.

Elledge & Mast, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice, by H. Grady Barnhill, Jr., Winston-Salem, for defendant appellee.

LAKE, Justice.

The judgment of the court below was clearly correct if the benefits to which the plaintiff was entitled under the National Grange policy constituted "valid and collectible automobile medical payments insurance." They obviously did constitute such insurance unless they are removed from that category by the circumstance that, by the terms of the policy, upon payment of such benefits to the plaintiff, National Grange would be subrogated, to that extent, to her rights against the negligent driver.

The plaintiff in her brief contends that the National Grange policy did not provide "other valid and collectible" automobile medical payments insurance, because the coverage it provided was not as valuable as that provided in the Allstate policy since the Allstate policy did not contain a subrogation provision. That is, under the Allstate policy, had there been no medical payments clause in the National Grange policy at all, the plaintiff could have collected the full funeral expense from Allstate and could also have collected the same expense as part of her damages against the negligent driver. She cites no authority in support of her proposition that the provision in the Allstate policy must be construed to mean other medical payments insurance of the type provided in the Allstate policy. We have found no authority supporting that proposition.

It is, of course, true that ambiguous provisions in an insurance policy are construed most favorably to the insured and strictly against the company since the company wrote the policy. Skillman v. Phoenix Mutual Life Insurance Co., 258 N.C. 1, 127 S.E.2d 789; Barker v. Iowa Mutual Insurance Co., 241 N.C. 397, 85 S.E.2d 305; Johnson v. New Amsterdam Casualty Co., 234 N.C. 25, 65 S.E.2d 347, 29 A.L.R. 2d 507. However, the court may not rewrite the policy under the guise of interpreting it so as to enlarge the coverage afforded thereby. "Insurance contracts will be construed according to the meaning of the terms which the parties have used and unless such terms are ambiguous, they will be interpreted according to their usual, ordinary, and commonly accepted meaning." Johnson v. New Amsterdam Casualty Co., supra.

In her brief the plaintiff says:

"The heart of the contract between the defendant, Allstate, and the decedent, Anderson, was their intention to provide medical and funeral expense coverage to Mr. Anderson, regardless of whether or not he could recover against a third party tort feasor or not."

This is precisely the kind of coverage provided by the National Grange policy. The liability of that company to the plaintiff under its policy was not contingent upon the right of the plaintiff to recover from the negligent driver or the collectibility of a judgment which she might obtain against him. It undertook to pay the medical or funeral expenses of any occupant of the Burnett car caused by injuries received while riding therein. This is the essence of medical payments insurance. The provision for subrogation to the right of such beneficiary against the negligent driver of another vehicle does not change the nature of this coverage.

The plaintiff also contends that the insurance afforded by the National Grange policy was not collectible because National Grange refused to pay the plaintiff on account of her having settled with and released the negligent driver. Whether the National Grange policy provided "other valid and collectible automobile medical payments insurance" must be determined as of the time of the collision. See Newcomb v. Great American Insurance Co., 260 N.C. 402, 133 S.E.2d 3. The plaintiff's own destruction of her claim against National Grange by her release of the negligent driver cannot enlarge her rights against Allstate.

We have examined the plaintiff's other assignments of error and find them to be without merit. The additional findings of fact requested by the plaintiff were not material, so the court's failure to include them within the findings was not prejudicial error. There was no error in the court's receiving in evidence the letter of 13 July 1964 from plaintiff's counsel to the defendant, to which the plaintiff objected on the ground that it contained an offer of compromise. This case being tried by the court without a jury, the presumption is that the court ignored any portion of the letter which was incompetent. Reverie Lingerie, Inc. v. McCain, 258 N.C. 353, 128 S.E.2d 835. The effect of the letter was simply to show that the plaintiff, when she settled with the negligent driver, was aware of the provision in the National Grange policy. This fact was stipulated by the parties. As to the element of compromise, the court resolved the question of the amount of funeral expenses in favor of the plaintiff. She was not prejudiced in any way by the introduction of this letter in evidence.

No error.