Newcomb v. Great American Insurance Company , 260 N.C. 402 ( 1963 )

133 S.E.2d 3 (1963) 260 N.C. 402

Cedrlc Earl NEWCOMB and Annie Newcomb
v.
GREAT AMERICAN INSURANCE COMPANY.

No. 312.

Supreme Court of North Carolina.

October 30, 1963.

Henson P. Barnes, Goldsboro, for plaintiff appellees.

Taylor, Allen & Warren and John H. Kerr, III, Goldsboro, for defendant appellant.

BOBBITT, Justice.

"Part II—Expenses for Medical Services," on which plaintiffs base their first cause of action, provides in pertinent part:

"Coverage C—Medical Payments. To pay all reasonable expenses incurred * * for necessary medical, * * * ambulance, hospital, * * * and funeral services:

"Division 1. To or for the named insured and each relative who sustains bodily injury, * * *, including death resulting therefrom, hereinafter called ``bodily injury,' caused by accident, while occupying or through being struck by an automobile; (Our italics)

"Division 2. To or for any other person who sustains bodily injury, caused by accident while occupying (a) the owned automobile * * *; or (b) a non-owned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured * * * or (2) its operation or occupancy by a relative, * * *

* * * * * *

"Exclusions. This policy does not apply under Part II to bodily injury: (a) * *; (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ``owned automobile,' or (2) * * *." (Our italics)

"Relative" is defined in "Part I—Liability" of the policy as "a relative of the named insured who is a resident of the same household." It is expressly provided that this definition of "relative" applies to Part II and Part III.

Plaintiffs contend they and their infant daughter were not relatives of the named insured who were residents of the same household and therefore plaintiffs are entitled to recover under Division 2 of Coverage C.

Plaintiffs, daughter and son-in-law of Mrs. Gray, are co-owners of the Ford. They are relatives of the named insured (Mrs. Gray), the daughter by blood and the son-in-law by marriage. Wendy, who sustained the "bodily injury," was the granddaughter of Mrs. Gray and therefore a relative of the named insured by blood. In Fidelity and Casualty Company of New York v. Jackson, 4 Cir., 297 F.2d 230, it was held that the mother-in-law of the named insured, residing with him in the same household, was his "relative" within a similar policy provision. In accord: Aler v. Travelers Indemnity Co. (USDC Md.), 92 F. Supp. 620.

While the word "resident" has different shades of meaning depending upon context, Barker v. Iowa Mutual Insurance Co., 241 N.C. 397, 399, 85 S.E.2d 305, we think it clear, under the stipulated facts, that plaintiffs, their infant daughter and Mrs. Gray were living together on June 12, 1960, as members of one household, and were then residents of the same household within the terms of the policy. State Farm Mut. Automobile Ins. Co. v. James, 4 Cir., 80 F.2d 802; Aler v. Travelers Indemnity Co., supra; Ransom v. Fidelity Casualty Co., 250 N.C. 60, 108 S.E.2d 22; Words and Phrases, Permanent Edition, Volume 19, p. 700 et seq. Their status is determinable on the basis of conditions existing at the time the casualty occurred. State Farm Mutual Automobile Insurance Co. v. Ward (Mo.), 340 S.W.2d 635.

Plaintiffs, in their allegations, base their first cause of action on the coverage provided in Division 2 of Coverage C. However, this coverage is provided to or for "any other person," that is, to a person other than the named insured or a relative. In view of our decision that plaintiffs and their infant daughter were relatives of the named insured on June 12, 1960, Division 2 of Coverage C has no application. The coverage applicable to plaintiffs and their infant daughter as relatives of the named insured is that provided in Division 1 of Coverage C. Hence, it is appropriate to consider whether plaintiffs are entitled to recover under the provisions thereof.

In our view, the only reasonable construction of the pertinent provisions of Division 1 of Coverage C is as follows: Division 1 of Coverage C provides coverage to or for the named insured and each relative who sustains "bodily injury" while occupying any automobile except (1) an automobile owned by either the named insured or by any relative, and (2) an automobile furnished for the regular use of the named insured or any relative, other than an automobile defined in the policy as an "owned automobile." Decisions supporting this construction of the coverage provided by Division 1 of Coverage C include the following: Johns v. State Farm Mutual Automobile Ins. Co., 41 Ala.App. 614, 146 So. 2d 323; Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130, 121 So. 2d 125; Dickerson v. Millers Mutual Fire Ins. Co. of Texas (La.App.), 139 So. 2d 785; Mallinger v. State Farm Mut. Auto. Ins. Co., 253 Iowa 222, 111 N.W.2d 647; O'Brien v. Halifax Insurance Co. of Massachusetts (Fla.App.), 141 So. 2d 307; Travelers Indemnity Company v. Hyde, 232 Ark. 1020, 342 S.W.2d 295; McMillan v. State Farm Insurance Company, 211 Cal. App. 2d 58, 27 Cal. Rptr. 125; Morton v. Travelers Indemnity Co., 121 C.A.2d Supp. 855, 263 P.2d 337. Also, see Aler v. Travelers Indemnity Co., supra.

The only automobile described in the policy as "owned automobile" was Mrs. Gray's Oldsmobile. Plaintiffs' infant daughter, a relative of the named insured, was injured fatally while occupying the Ford automobile owned by relatives of the named insured, the plaintiffs herein. Hence, plaintiffs may not recover under Division 1 of Coverage C.

Plaintiffs, in their allegations, base their second cause of action on "Part III—Physical Damage," which, in pertinent part, provides:

"Coverage E—Collision. To pay for loss caused by collision to the owned automobile or to a non-owned automobile * * *" (Our italics)

"Non-owned automobile" is defined in Part III as "a private passenger automobile * * * not owned by * * * either the named insured or any relative * * *" (Our italics).

We perceive no ambiguity in the pertinent provisions of Coverage E. Parker v. State Capital Life Insurance Co., 259 N.C. 115, 130 S.E.2d 36. No collision coverage is provided for plaintiffs' Ford. Plaintiffs' Ford was not the automobile described in the policy as the "owned automobile." Nor was it a "non-owned automobile," as defined in the policy. On the contrary, it was an automobile owned by relatives, to wit, the plaintiffs. Hence, plaintiffs may not recover under Coverage E.

For reasons stated, the judgment of the court below, as to both causes of action, is reversed.

Reversed.