Williams v. Nationwide Mutual Insurance Company , 269 N.C. 235 ( 1967 )

152 S.E.2d 102 (1967) 269 N.C. 235

Perry Clay WILLIAMS
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 542.

Supreme Court of North Carolina.

January 20, 1967.

Vaughan S. Winborne, Raleigh, for plaintiff.

Bailey, Dixon & Wooten, Raleigh, for defendant.

BRANCH, Justice.

G.S. § 20-279.21(b) (3) in pertinent part provides: "No policy of bodily injury liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of § 20-279.5, under provisions filed with and approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured [motor vehicles and hit-and-run motor vehicles because of bodily] injury, sickness or disease, including death, resulting therefrom; * *"

"In North Carolina today all insurance policies covering loss from liability arising out of the ownership, maintenance, or use of a motor vehicle are, to the extent required by G.S. § 20-279.21, mandatory. All which insure in excess of the compulsory coverage are voluntary policies to the extent of the excess." Nationwide Mutual Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654. Plaintiff's prayer for recovery is within the limits of the compulsory coverage.

The insured, in order to be entitled to the benefits of the endorsement, must show (1) he is legally entitled to recover damages, (2) from the owner or operator of an uninsured automobile, (3) because of bodily injury, (4) caused by accident, and (5) arising out of the ownership, maintenance, or use of the uninsured automobile.

It is well settled that a demurrer admits, for the purpose of testing the sufficiency of the pleadings, all facts well pleaded in the complaint. If the facts alleged in the complaint, taken as true, and liberally construed in favor of the pleader, are sufficient to state a cause of action, the demurrer should be overruled. Glover v. Brotherhood of Railway, etc., 250 N.C. 35, 108 S.E.2d 78. For the purpose of this decision, it is admitted that Singletary is the owner of an uninsured automobile, and that plaintiff received bodily injuries caused by the accident alleged. Therefore, to decide whether the plaintiff has alleged facts sufficient to legally entitle him to recover damages, we must determine if the injury arose out of the "ownership, maintenance, or use" of the motor vehicle. In making this determination, the same rules of construction apply in construing uninsured motorists coverage as apply in construing a standard liability insurance policy. "The purpose of the statute making uninsured motorist coverage compulsory, it has been said, is to give the same protection to a person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability insurance policy." 7 Am.Jur., 2d, Automobile Insurance, § 135, p. 461.

"Insurance policies must be given a reasonable interpretation and where there is no ambiguity they are to be construed according to their terms. Huffman v. Occidental Life Insurance Co., 264 N.C. 335, 141 S.E.2d 496. Where there is ambiguity and the policy provision is susceptible of two interpretations, of which one imposes liability upon the company and the other does not, the provision will be construed in favor of coverage and against the company. Mills v. State Life & Health Insurance Co., 261 N.C. 546, 135 S.E.2d 586. * * * In the construction of contracts, even more than in the construction of statutes, words which are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage, rather than a restrictive meaning which they may have acquired in legal usage. In the construction of contracts the purpose is to find and give effect to the intention of the contracting parties, if possible." Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., 266 N.C. 430, 146 S.E.2d 410.

This Court has not heretofore ruled on a factual situation involving the maintenance or repair of an automobile in connection with coverage under the uninsured motorist provisions of a liability policy. However, we find where other jurisdictions have defined the conditions under which an insurer shall be liable on policies employing the terms, "ownership, maintenance or use." In the case of Morris v. American Liability & Surety Co., 322 Pa. 91, 185 A. 201, an action on a policy of liability insurance protecting insured from loss arising out of damages by reason of the "ownership, maintenance or use" of described vehicles, where an employee of the assured, while in the act of hammering into place the rim of a wheel on truck covered by the policy, caused injury to the plaintiff, the Pennsylvania Court held that the policy covered damages to the plaintiff, saying:

"The four terms employed in the policy defining the conditions under which the insurer was to be liable cover a wide and comprehensive field. Each of these terms, ``ownership, maintenance, manipulation or use,' is general in nature and covers situations which cannot be defined beforehand with exactness. * * There may be occasions, in fact, when the meanings of these terms overlap and when more than one would cover the same situation. But it is a well-settled rule of construction that no word in a contract is to be treated as surplusage or redundant if any reasonable meaning consistent with the other parts can be given to it. * * * As we view this policy, each of these terms was intended to cover situations distinct and separate from those covered by any other term. Distinctions between them and particularly of application appear in other cases. * * *

"The word ``maintenance,' used in this policy covers all acts which come within its ordinary scope and meaning. To ``maintain' means to preserve or keep in an existing state or condition and embraces acts of repair and other acts to prevent a decline, lapse, or cessation from that state or condition. * * * In a wide variety of situations the word ``maintain' has been taken to be synonymous with ``repair.' * * * Here the act which gave rise to the injury for which a judgment was recovered took place while an employee of the assured was in the act of repairing an essential part of the car and, under the circumstances, was expressly within the term of the policy specified as ``maintenance.'"

In the case of United Mutual Fire Insurance Co. v. Jamestown Mutual Insurance Co., 242 App.Div. 420, 275 N.Y.S. 47, affirmed in 267 N.Y. 576, 196 N.E. 587, defendant's policy agreed to indemnify for loss sustained "as a result of the ownership, maintenance or use" of a certain automobile. Plaintiff brought action on the policy, pleading that while engaged in doing maintenance work on his automobile, defendant's insured carelessly caused a bucket of gasoline used by him in said work to spill on the floor and spread to a stove used for heating the garage, causing damage to plaintiff's insured's property. The defendant moved for judgment on the complaint on the ground that on its face it did not state facts sufficient to constitute a cause of action. The New York Court held that the facts pleaded constituted a cause of action.

Blashfield—Cyclopedia of Automobile Law and Practice, Vol. 7, § 314.2, pp. 558-559, states:

"Where the insurance company undertakes by the policy to indemnify the owner of the automobile forming the subject matter of the insurance against claims for damages on account of bodily injuries accidentally suffered by any person by reason of the ownership, maintenance, or use of the vehicle, its obligation is not limited to claims for damages by reason of injuries occurring while the insured himself is personally using or operating the car, but extends to all claims of the nature indicated, that is, all those which are made against him by reason of his ownership or maintenance of the car which produces the accidental injuries in question. The repair of the vehicle is included in its maintenance within such a provision." (Emphasis ours)

A contract is to be construed as a whole and each clause and word must be considered with reference to the other provisions of the agreement and be given effect if possible by any reasonable construction. Robbins v. C. W. Myers Trading Post, 253 N.C. 474, 117 S.E.2d 438. Thus, the terms "ownership, maintenance and use" should not be treated as mere surplusage. They were placed in the policy in order to cover situations distinct and separate from any other term.

The key word on this appeal is "maintenance." Webster's New International Unabridged Dictionary defines "maintenance" as "The labor of keeping something (as buildings or equipment) in a state of repair or efficiency: care, upkeep." Giving the word its common, daily, nontechnical meaning, the facts alleged come within the coverage of the policy.

Moreover, if there were ambiguity in the policy which requires interpretation as to whether the policy provisions impose liability, the provisions would be construed in favor of coverage and against the company. Jamestown Mutual Insurance Co. v. Nationwide Mutual Insurance Co., supra.

Reversed.