Tucker v. Peerless Ins. Co., Inc.

254 S.E.2d 656 (1979)

Mark W. TUCKER v. PEERLESS INSURANCE CO., INC.

No. 7825SC711.

Court of Appeals of North Carolina.

May 15, 1979.

*657 Byrd, Byrd, Ervin & Blanton by Robert B. Byrd, Morganton, for plaintiff-appellant.

Patrick, Harper & Dixon by Stephen M. Thomas, Hickory, for defendant-appellee.

ARNOLD, Judge.

Plaintiff's policy under which he seeks to collect from defendant defines "uninsured automobile" as "an automobile . . . with respect to . . . which there is, in at least the amounts specified by the financial responsibility law of the state . ., no bodily injury liability . . . insurance policy applicable at the time of the accident . . ., or with respect to which there is a bodily injury liability . . insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder." The policy also states explicitly that "the term `uninsured automobile' shall not include. . . an insured automobile."

G.S. 20-279.21(b)(3)b states in pertinent part: "For the purpose of this section, an `uninsured motor vehicle' shall be a motor vehicle as to which there is no bodily injury liability insurance . . . in at least the amounts specified in subsection (c) of G.S. 20-279.5, or there is such insurance but the insurance company writing the same denies coverage thereunder, or has become bankrupt. . .." The "amounts specified in subsection (c) of G.S. 20-279.5" are coverage of not less than $15,000 for bodily injury to any one person and not less than $30,000 for bodily injury to two or more persons in one accident.

On the stipulated facts before us, it is clear that Ricky Alan Toney was not an uninsured motorist within the policy or the statutory definition at the time of the accident. A bodily injury liability policy was in effect on the car he was driving, in the amounts required by the statute. However, plaintiff advances several resourceful arguments as to why we should find this "underinsured" motorist to be uninsured.

Plaintiff seeks to draw analogies between the two exceptions in the statutean insurer who denies coverage, or goes bankrupt and his situation. We are unpersuaded. Had the legislature wished to make an underinsured motorist an exception to the general definition, it could have done so easily. Furthermore, the plaintiff's argument that the legislature must have recognized the possibility of accidents from which more than two claims would arise, does not improve his position. The legislature has chosen to require a minimum of $30,000 coverage for two or more persons injured in one accident. As defendant points out, if the legislature wished to insure to every injured party a maximum recovery of $15,000, it simply could have omitted the "per accident" limit from the statute.

Both the statutory and policy definitions of "uninsured motorist" exclude a motor vehicle with the minimum required liability insurance. Ricky Alan Toney's automobile was such a vehicle, and therefore plaintiff's uninsured motorist coverage does not apply. The decision of the trial court is

Affirmed.

ROBERT M. MARTIN and ERWIN, JJ., concur.