holding that the plaintiff, who was injured while changing a flat tire, was using the vehicle at the time he was injured
How later courts described this case
- holding that the plaintiff, who was injured while changing a flat tire, was using the vehicle at the time he was injured
- vehicle was being “used” when the insured was injured while changing a tire
Written by the judges who cited it.
The opinion
Judge WYNN
concurring in part and dissenting in part.
I agree with the majority on Section I. However, I respectfully dissent from Section II of Judge Greene’s opinion in which he concludes that N.C. Gen. Stat. § 20-279.21 (b)(4) (1989) does not permit a member of the second class of “persons insured” to intrapolicy stack UIM coverages to determine an insurer’s limit of liability.
In Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551 , 340 S.E.2d 127 , disc. review denied, 316 N.C. 731 , 345 S.E.2d 387 (1986), this Court explained the term “person insured,”
.In essence, N.C. Gen. Stat. 20-279.21(b)(3) establishes two “classes” of “persons insured”: (1) the named insured and, while resident of the same household, the spouse of the named insured and relatives of either and (2) any person who uses with the consent, express or implied, of the named insured, the insured vehicle, and a guest in such vehicle.
Id. at 554 , 340 S.E.2d at 129-30 . A member of the second class is a person insured “only when the insured vehicle is involved in the insured’s injuries.” Smith v. Nationwide Mut. Ins. Co., 328 N.C. 139, 143 , 400 S.E.2d 44, 47 , reh’g denied, 328 N.C. 577 , 403 S.E.2d 514 (1991). The statute and cases merely define and develop the “person insured”; they do not distinguish between the two classes for stacking purposes.
In Harris v. Nationwide Mut. Ins. Co., 103 N.C. App. 101, 103 , 404 S.E.2d 499, 501 (1991), this Court stated that “the benefits *675 contemplated under the applicable statutory provisions in N.C. Gen. Stat. § 20-279.21 (b)(4) flow to the insured injured party.” This Court relied on this language in Manning v. Tripp, 104 N.C. App. 601 , 410 S.E.2d 401 (1991), and held that a first class “person insured,” who is not the owner of a vehicle, is entitled to aggregate the limits of liability for UIM coverage. In my opinion, these recent cases establish that stacking of UIM coverage is allowable if an injured party qualifies as a “person insured” under N.C. Gen. Stat. § 20-279.21 (b)(3). See also Nationwide Mut. Ins. Co. v. Silverman, 104 N.C. App. 783 , 411 S.E.2d 153 (1991).