Autry Ex Rel. Autry v. Aetna Life & Casualty Insurance

242 S.E.2d 172 (1978) 35 N.C. App. 628

Harold K. AUTRY, by his guardian ad litem, Harold C. Autry
v.
AETNA LIFE AND CASUALTY INSURANCE COMPANY and Johnny Nethercutt.

No. 7713SC379.

Court of Appeals of North Carolina.

March 21, 1978. Certiorari Denied May 8, 1978.

Ray H. Walton, Southport, for plaintiffs.

Poisson, Barnhill, Butler & Britt by M. V. Barnhill, Jr., Wilmington, for defendants.

Certiorari Denied by Supreme Court May 8, 1978.

MARTIN, Judge.

The sole question before this Court is whether defendant Nethercutt's three-wheeled vehicle, at the time and place of the incident in question, was an "uninsured motor vehicle" within the meaning of the applicable statutory provisions and provisions of plaintiff's insurance policy.

G.S. 20-279.21(b)(3) provides for the inclusion of "uninsured motorists coverage" as a compulsory part of any automobile liability policy delivered with respect to a "motor vehicle registered or principally garaged in this State." For purposes of determining the extent of coverage under the uninsured motorists endorsement of an automobile liability policy, this subsection defines "uninsured motor vehicle" as follows:

". . . [A]n `uninsured motor vehicle' shall be a motor vehicle as to which there is no bodily injury liability insurance and property damage liability insurance in at least the amounts specified in subsection (c) of G.S. 20-279.5 . . . or there is no bond or deposit of money or securities as provided in G.S. 20-279.24 or 20-279.25 in lieu of such bodily injury and property damage liability insurance, or the owner of such motor vehicle has not qualified as a self-insurer under the provisions of G.S. 20-279.33, or a vehicle that is not subject to the provisions of the Motor Vehicle Safety and Financial Responsibility Act; but the term `uninsured motor vehicle' shall not include:

a. A motor vehicle owned by the named insured;

b. A motor vehicle which is owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law or any similar law;

c. A motor vehicle which is owned by the United States of America, Canada, a state, or any agency of any of the foregoing (excluding, however, political subdivisions thereof);

d. A land motor vehicle or trailer, if operated on rails or crawler-treads or while located for use as a residence or premises and not as a vehicle; or

e. A farm-type tractor or equipment designed for use principally off public roads, except while actually upon public roads."

In almost identical language, the foregoing definition is incorporated into the automobile liability policy issued by defendant Aetna to plaintiff.

In view of the above quoted definition, the trial court's specific findings with respect to the three-wheeled vehicle—that there was neither cash or securities on file, nor a liability bond or insurance policy applicable to the owner—were tantamount to a finding that the vehicle in question was uninsured. Based on this fact, plaintiffs argue that Nethercutt's three-wheeled vehicle, powered by a Volkswagen engine, was obviously a "motor vehicle" and consequently, an "uninsured motor vehicle" within the meaning of the statute. With this interpretation of the statutory term we cannot agree.

In ascertaining the intended meaning of "uninsured motor vehicle," and thus determining the scope of the statutory uninsured motorists provision as incorporated into plaintiff's policy, we note at the outset that the uninsured motorists section must be considered in light of the "Motor Vehicle Safety and Financial Responsibility Act" (the Act) which it amended. See Buck v. Guaranty Co., 265 N.C. 285, 144 S.E.2d 34 (1965). That Act, G.S. 20-279.1 et seq., was intended to protect those who might be injured on the public highways of this State by providing assurance of the financial responsibility of all who operate motor vehicles on the public highways. Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812 (1967). This concern was effectuated by requiring registration of and proof of financial responsibility from any motor vehicle designed to be operated upon the public highways and intended by its owner to be so operated. G.S. 20-50; G.S. 20-309. However, it became immediately apparent that this statutory scheme accorded no protection to one injured by the negligent operation of a motor vehicle which was in fact uninsured, whether in willful disobedience of the registration and compulsory insurance statutes or as a result of an exemption from the requirements thereof. The uninsured motorists section of G.S. 20-279.21 was enacted in order to close these "gaps" in the motor vehicle financial responsibility legislation and thus, to provide financial recompense to innocent persons who receive injuries through the wrongful conduct of motorists who are uninsured and financially irresponsible. Moore v. Insurance Co., 270 N.C. 532, 155 S.E.2d 128 (1967).

Construing "uninsured motor vehicle" in light of the foregoing, we must conclude that the term is intended to include motor vehicles which should be insured under the Act but are not, and motor vehicles which, though not subject to compulsory insurance under the Act, are at some time operated on the public highways. Only in these instances is the uninsured motorists provision serving its intended purpose of complementing the original Act and furthering the financial protection accorded thereby to persons injured by motor vehicles on the public highways. This purpose would not be served by interpreting the uninsured motorists provision so as to cover accidents involving motor vehicles not subject to compulsory insurance and which occur on private property. Such an interpretation would result in absolute financial protection against injury by motor vehicle, a concept neither contemplated nor intended by the original Act.

In the instant case, the trial court found as fact that defendant Nethercutt never operated the three-wheeled vehicle on any public highway and did not intend to do so until he made such repairs as were necessary in order for the vehicle to pass inspection. In view of defendant's use of the vehicle and considering its condition, the court concluded that the three-wheeled vehicle was not required to be registered; thus, it was not subject to compulsory insurance. In addition, the court found that the accident occurred on private property, not on any public road or highway. In our opinion, the uninsured motorists provision was not intended to provide financial recompense to one injured on private property by a vehicle not subject to the registration and compulsory insurance provisions of our motor vehicle financial responsibility legislation.

Accordingly, we find that at the place of the accident and in its then condition, defendant's three-wheeled vehicle was not an "uninsured motor vehicle" within the intended scope of the uninsured motorists provisions so as to entitle plaintiffs to coverage thereunder. The trial court's judgment precluding recovery from defendant Aetna is affirmed.

Affirmed.

PARKER and ARNOLD, JJ., concur.