Harper v. Allstate Insurance, 122 N.C. App. 297 (1996)

April 16, 1996 · North Carolina Court of Appeals · No. 9410SC66

122 N.C. App. 297

ALICE R. HARPER, Administratrix of the ESTATE OF WILLIAM P. HARPER, JR., v. ALLSTATE INSURANCE COMPANY

No. 9410SC66

(Filed 16 April 1996)

Insurance § 527 (NCI4th)— vehicle owned by insured but not listed in policy — UIM coverage not excluded by family member exclusion

The Court of Appeals again rejects defendant’s argument that the family member exclusion in an automobile policy excluded UIM coverage for injuries sustained by the insured while occupying a vehicle owned by insured which is not listed in the policy.

Am Jur 2d, Automobile Insurance § 322.

Rights and liabilities under “uninsured motorists” coverage. 79 ALR2d 1252.

Uninsured and underinsured motorist coverage: recov-erability, under uninsured or underinsured motorist coverage, of deficiencies in compensation afforded injured party by tortfeasor’s liability coverage. 24 ALR4th 13.

Uninsured motorist coverage: validity of exclusion of injuries sustained by insured while occupying “owned” vehicle not insured by policy. 30 ALR4th 172.

Appeal by defendant from judgment entered 13 December 1993 in Wake County Superior Court by Judge Coy E. Brewer, Jr. Heard in the Court of Appeals 29 September 1994. Reconsidered for the purpose of modifying earlier opinion.

Smith & Holmes, P.C., by Robert E. Smith and Mary M. McHugh, for defendant-appellant.

Edwards and Kirby, by David F. Kirby, for plaintiff-appellee.

WYNN, Judge.

On 6 December 1994, this Court issued an opinion affirming summary judgment for the plaintiff in a declaratory judgment action. Harper v. Allstate Ins. Co., 117 N.C. App. 302, 450 S.E.2d 759 (1994). On 9 February 1996, our Supreme Court vacated our opinion and directed that we reconsider it in the light of Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996). Harper v. Allstate Ins. Co., 342 N.C. 643, 466 S.E.2d 77 (1996). Having so reconsidered, we again reject defendant’s argument that the family member exclusion in its policy excludes underinsured motorists (UIM) coverage for injuries sustained by the insured while occupying a vehicle owned by the insured which is not listed in the policy. In Mabe, our Supreme Court affirmed this Court’s rejection of the “owned vehicle” or “family member” exclusion with regard to UIM coverage. Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996). Accordingly, the trial court’s entry of summary judgment for the plaintiff is,

Affirmed.

Chief Judge ARNOLD and Judge JOHNSON concur.