Watson v. American National Fire Insurance

425 S.E.2d 696 (1993) 333 N.C. 338

James WATSON
v.
AMERICAN NATIONAL FIRE INSURANCE COMPANY.

No. 281PA92.

Supreme Court of North Carolina.

February 12, 1993.

Pritchett, Cooke & Burch by William W. Pritchett, Jr., Lars P. Simonsen and David J. Irvine, Jr., Windsor, for plaintiff-appellant.

Haywood, Denny, Miller, Johnson, Sessoms & Patrick by George W. Miller, Jr. and Robert E. Levin, Durham, for defendant-appellee.

WEBB, Justice.

This case brings to the Court a question as to whether the plaintiff has underinsured motorist coverage for injuries received in an automobile accident. The plaintiff contends that N.C.G.S. § 20-279.21(b)(4) provides that the policy he has with defendant gives him underinsured motorist coverage in the amount of his liability coverage because there is no showing that he rejected underinsured motorist coverage.

We hold that this case is governed by N.C.G.S. § 20-279.32 which provides in part:

This Article ... does not apply to any vehicle operated under a permit or certificate of convenience or necessity issued by the North Carolina Utilities Commission, or by the Interstate Commerce Commission, if public liability and property damage insurance for the protection of the public is required to be carried upon it.

It is undisputed that the vehicles insured by the defendant were operating under a certificate of convenience issued by the Interstate Commerce Commission and the plaintiff was required to have the liability coverage that he had in order to receive this certificate. N.C.G.S. § 20-279.21(b)(4), under which the plaintiff contends he is given underinsured motorist coverage, is part of the same article as N.C.G.S. § 20-279.32. By its plain words N.C.G.S. § 20-279.32 says that N.C.G.S. § 20-279.21(b)(4) does not apply in this case. The plaintiff has only such coverage as is provided in the policy.

The plaintiff, relying on Bray v. Insurance Co. of the State of Pa., 917 F.2d 130 (4th Cir.1990), argues that the ICC regulations do not preempt state regulation of underinsured coverage. We agree. It is not the ICC regulations that preempt the plaintiff from underinsured motorist coverage. It is the statutes of this state which do not provide for underinsured motorist coverage in this case.

For the reasons stated in this opinion, we affirm the Court of Appeals.

AFFIRMED.