Unitrin Auto & Home Ins. v Rikard

Annotate this Case

Download PDF

NO. COA11-713 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 UNITRIN AUTO AND HOME INSURANCE COMPANY, Plaintiff, v. Cleveland County No. 09 CVS 2238 GREGORY SCOTT RIKARD, Executor of the Estate of DELBERT RIKARD and CAROLYN RIKARD, Defendants. Appeal by Defendants from judgment entered 23 February 2011 by Judge Richard L. Doughton in Cleveland County Superior Court. Heard in the Court of Appeals 9 November 2011. Brotherton Ford Yeoman Berry & Weaver, PLLC, by Joseph F. Brotherton and Steven P. Weaver, for Plaintiff. Cerwin Law Firm, P.C., by Todd R. Cerwin, for Defendants. STEPHENS, Judge. This appeal arises from a car accident which occurred on 25 November 2008 near Shelby. On that date, the car in which seventy-two-year-old Rikard Delbert and his seventy-year-old wife, Carolyn (collectively, the Rikards ), were traveling was struck head-on by a car owned by Martha Bennett Allen and driven -2by Bristol Michelle Leonhardt. The Rikards were seriously injured and endured lengthy hospitalizations, incurring damages in excess of Leonhardt s additional the available insurance coverage liability policies. from limits The Plaintiff of Allen s Rickards Unitrin then Auto and sought and Home Insurance Company ( Unitrin ). Unitrin insured the Rikards under a combined auto and homeowners liability insurance policy with effective dates of 26 January 2008 through declarations page 26 January of the 2009 ( the policy policy ). provides The combined uninsured/underinsured ( UM/UIM ) motorist coverage of $50,000 per person and $100,000 per accident. Delbert Rikard first obtained insurance coverage from Unitrin in 2003. Thereafter, Unitrin mailed the Rikards annual renewal packets, each of which contained a declarations page. The declarations page for the policy listed seven attached endorsements including Endorsement AK3847, titled UM/UIM Rejection/Selection. appears in the policy blank and Endorsement AK3847 uncompleted. Each time he received a renewal packet, Delbert Rickard paid the premium bill which arrived by separate mailing and received insurance cards for his vehicles, but never read endorsements or signed Endorsement AK3847. proof the of policy -3On 2 September 2009, Unitrin filed a complaint against the Rickards, seeking a declaration of the limits of UIM coverage available to them under the policy. Unitrin asserted that, because the Rickards never selected a higher UIM amount, the statutory default amount applied. The Rickards contended that, because Unitrin never properly notified them of their option to select a higher UIM amount, they were entitled to the maximum coverage amount. On 3 May 2010, Unitrin moved for summary judgment, which motion the court denied. On 28 November 2010, Delbert Rickard died, and on 19 January 2011, the trial court entered a consent order substituting Defendant Gregory Scott Rikard, Delbert Rickard s son and executor of his estate, as a defendant in this action. Following a bench trial, the court entered judgment on 23 February 2011, concluding, inter alia, that Unitrin provided [the Rikards] with multiple opportunities to select or reject underinsured motorist coverage by including Endorsement AK3847 in Unitrin s annual policy renewal mailings. court concluded coverage contending that the statutory applied under this conclusion findings of fact. the We affirm. is policy. not default As a result, the amount Defendants supported by the of UIM appeal, court s -4On appeal from a bench trial, we review only whether there is competent evidence to support the trial court s findings of fact and whether the findings support the conclusions of law and ensuing judgment. Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (citation omitted), disc. review denied, 354 N.C. 365, 556 S.E.2d 577 (2001). The Financial Responsibility Act (the Act ) mandates that an insured must be notified of the option to select UIM coverage in an amount not to be less than the financial responsibility amounts for bodily injury liability as set forth in G.S. 20279.5 [$25,000 dollars. and $50,000] nor not select than one N.C. Gen. Stat. § 20-279.21(b)(4) (2008).1 also contains a default provision: does greater reject different underinsured coverage The Act If the named insured . . . motorist limits, million the coverage amount of and does not underinsured motorist coverage shall be equal to the highest limit of bodily injury [and property vehicle in the policy. damage] Id. liability coverage for any one Further, [w]here the insurer attempts to notify the insured of the $1,000,000.00 maximum UM/UIM coverage, but there is neither a valid rejection of that coverage nor a selection 1 Effective 1 February 2010, N.C. Gen. Stat. § 20-279.21 was amended. The amended version of the statute is not at issue here. -5of different coverage limits, an insured is entitled to the highest limit of bodily injury liability coverage on the insured s policy. However, if there is a total failure by the insurer to notify the insured that he or she may purchase up to $ 1,000,000.00 in UM/UIM coverage, then the insured is entitled to $1,000,000.00 in coverage. Nationwide Prop. & Cas. Ins. Co. v. Martinson, __ N.C. App. __, __, 701 S.E.2d 390, 396 (2010) (internal citations and quotation marks omitted), disc. review denied, __ N.C. __, 706 S.E.2d 256 (2011).2 In Martinson, the insurance company presented evidence it had mailed the insureds a UM/UIM selection/rejection form. at __, 701 S.E.2d at 397-98. Id. However, the insureds claimed they never received or saw the form prior to the accident for which they sought UM coverage. Id. We held [t]he mailing of the selection/rejection form was sufficient to preclude a holding that a total failure to notify occurred. at 399. subsections In light (b)(3) of and the identical (b)(4), we Id. at __, 701 S.E.2d operative explicitly language in extend the reasoning of Martinson to questions of UIM coverage and conclude 2 In Martinson, we considered subsection (b)(3) of N.C. Gen. Stat. ' 20-279.21 which concerns UM coverage, rather than subsection (b)(4) which concerns UIM coverage. However, the relevant sentence in each subsection (setting default coverage when an insured neither accepts nor rejects UM/UIM limits) is identical except for the words uninsured and underinsured. -6that the findings of fact here fully support the challenged conclusion of law. Defendants do not challenge the trial court s findings of fact and concede they are supported by competent evidence. Finding of fact 7 states that the Rickards renewed their policy with Unitrin on five occasions prior to the 25 November 2008 accident. Finding 18 states that a UM/UIM selection/rejection form was included in each renewal packet Unitrin mailed to the Rickards. These findings fully support the trial court s conclusion that Unitrin provided [the Rikards] with multiple opportunities to select or reject underinsured motorist coverage and its judgment that the applicable amount of UIM coverage is the default amount, rather than the maximum amount. Accordingly, the trial court s judgment is AFFIRMED. Judges BRYANT and ELMORE concur.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.