Mecklenburg County No. 02-CVS-13053.

LEVINSON, Judge.

This appeal arises from a 1 October 2000 motor vehicle accident that claimed the life of Brett Patton Ford (decedent), and led to the present dispute regarding automobile insurance policies issued to members of decedent's immediate family. Plaintiff(George Ford, administrator of decedent's estate) appeals from an order granting summary judgment in favor of defendant insurance companies. We affirm in part and reverse in part.

The record evidence establishes the following: On the date of the accident, decedent was 19 years old and lived with her parents, George and Janis Ford. The other driver involved in the accident, Johnny Towson, was an uninsured motorist. On 8 May 2001 plaintiff, as administrator of decedent's estate, filed a complaint against Towson seeking compensatory and punitive damages for the wrongful death of decedent. On 19 July 2002 plaintiff filed a complaint for declaratory judgment against defendant insurance companies. Plaintiff alleged that, at the time of the accident, three separate automobile insurance policies issued to decedent's relatives provided uninsured motorist (UM) coverage. Plaintiff sought a declaration from the trial court that the UM coverage from each of these policies was applicable to the beneficiaries of decedent's estate, and that the total amount of coverage should be determined by adding or "stacking" the dollar amounts of UM coverage available under each policy. In their answer, defendants Integon National and Integon General denied that their policies permitted stacking.

Defendant Virginia Mutual denied that plaintiff was entitled to UM benefits under its policy. Thereafter plaintiff and Virginia Mutual each moved for summary judgment. On 29 October 2002 the trial court granted summary judgment in favor of all defendants. From this order plaintiff appeals.

Standard of Review

"Summary judgment is properly granted where `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Kennedy v. Haywood County, 158 N.C. App. 526, 527, 581 S.E.2d 119, 120 (2003) (quoting N.C.G.S. § 1A-1, Rule 56(c) (2003)). "The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact." DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citation omitted). On appeal from a grant of summary judgment:

this Court reviews the trial court's decision de novo. Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law.

Daniel v. Wray, 158 N.C. App. 161, 168, 580 S.E.2d 711, 716 (2003) (citations omitted).

Background

As administrator of his daughter's estate, plaintiff brought this suit on behalf of the estate's beneficiaries. See Severance v. Ford Motor Co., 98 N.C. App. 330, 333, 390 S.E.2d 704, 706-07 (1990). Plaintiff claimed UM coverage under three automobile insurance policies, each providing liability and UM insurance in the amount of $100,000. The first of these, issued by defendant Integon National Co., policy number SAN1179458, lists decedent as a "named insured" and insures the motorcycle that decedent was riding at the time of the accident. Integon National does not dispute that this policy provides coverage to decedent to which plaintiff is entitled. The second policy, issued by defendant Integon General Corp., policy number PAF6925229, lists decedent's parents as the named insureds. The policy does not appear in the record, but defendants Integon National and Integon General aver that both policies had the same coverage limits. The third policy was issued by defendant Virginia Mutual, policy number PAP247836, and lists decedent's sister, Elizabeth Chelsea Ford ('Chelsea'), as the named insured. All three policies provide UM coverage to any "insured" which the policies define as either the named insured or any "family member" of the named insured. The policies define "family member" as a "person related to [the named insured] by blood, marriage or adoption who is a resident of your household[.]"

"The interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction." N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 532, 530 S.E.2d 93, 95 (2000). "If an insurance `policy is not ambiguous, then the court must enforce the policy as written and may not remake the policy under the guise of interpreting an ambiguous provision.'" Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 275, 576 S.E.2d 681, 684, disc. review denied, 357 N.C. 457, 585 S.E.2d 382 (2003) (citation omitted). In the instant case, the trial court's summary judgment order included the following conclusions of law:

1. There are no issues of material facts in this case and Defendants are entitled to summary judgment as a matter of law.

2. Brett Patton Ford, deceased, was not a resident of the household of Elizabeth Chelsea Ford on October 1, 2000, and was therefore not an insured under the policy of automobile insurance issued by Virginia Mutual Insurance Company to Elizabeth Chelsea Ford.

3. N.C.G.S. § 20-279.21(b)(3) precludes interpolicy stacking of [uninsured] motorist coverage.

4. The policy issued by Integon National Insurance Co., Policy No. SAN1179458, issued to [plaintiff], provided uninsured motorist coverage to Brett Patton Ford, deceased, on October 1, 2000.

5. The policy issued by Integon General Insurance Corp., Policy No. PAF6925299, issued to [plaintiff] and wife, Janis Ford, provided no coverage to Brett Patton Ford, deceased, on October 1, 2000, because of the anti-stacking provisions of N.C.G.S. § 20-279.21(b)(3), which would have precluded stacking of the Virginia Mutual policy as well.

The trial court thus reached four basic conclusions: (1) the total amount of UM benefits to which plaintiff was entitled was $100,000; (2) plaintiff could not add up, or `stack,' the UM coverage amounts in the three policies; (3) the anti-stacking statute meant that the plaintiff had no UM coverage under the Integon General or Virginia Mutual policies; and (4) regardless of the issue of stacking, plaintiff was not entitled to UM benefits under the Virginia Mutual policy, because decedent was not a member of Chelsea's (the named insured's) household.

Total Amount of Plaintiff's UM Benefits

All three policies provided liability and UM insurance, each in the amount of $100,000. The policies also contained "other insurance" clauses. Virginia Mutual's "other insurance" clause in Part C1 (Uninsured Motorists Coverage) provides in relevant part that:

If this policy and any other auto insurance policy issued to you apply to the same accident, the maximum limit of liability for your injuries under all policies shall not exceed the highest applicable limit of liability under any one policy.

In addition, if there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. . . .

Integon National's policy contains "other insurance" clauses with virtually identical language.

This Court has held that the presence of "other insurance" clauses sets the total amount recoverable at whatever the highest coverage was among the policies. Trivette v. State Farm Mut. Auto Ins. Co., ___ N.C. App. ___, ___ S.E.2d ___ (filed 1 June 2004) (citing Hoover v. State Farm Mut. Ins. Co., 156 N.C. App. 418, 419, 576 S.E.2d 396, 397 (2003). In the instant case each policy has a coverage limit of $100,000, which is therefore the most the plaintiff can recover from UM insurance. The trial court rested its conclusion, that $100,000 was the most that plaintiff could recover, on a basis other than the "other insurance" clauses in the policies. However, based upon the "other insurance" clauses, we agree with the court's conclusion as to the maximum total dollar amount of available benefits. "A correct ruling . . . must be upheld if it is correct upon any theory of law." Manpower of Guilford County, Inc. v. Hedgecock, 42 N.C. App. 515, 519, 257 S.E.2d 109, 113 (1979) (citations omitted). Accordingly, we uphold the trial court's conclusion that plaintiff was entitled to no more than $100,000 in UM benefits.

The parties present arguments on whether N.C.G.S. § 20-279.21(b)(3) (2003), as it was written at the time of the accident, would independently limit the total amount of coverage. However, we have already concluded that the total amount of UM benefits is determined by reference to the "other insurance" clauses in the policies. Consequently, we have no need to address whether G.S. § 20-279.21(b)(3) is also applicable.

Pro Rata Sharing of UM Benefits

The trial court also ruled, as a matter of law, that the anti-stacking provisions of G.S. § 20-279.21(b)(3) automatically denied plaintiff any coverage under the Integon General or Virginia Mutual policies. We conclude this ruling was erroneous.

The anti-stacking language in G.S. § 20-279.21(b)(3) addresses only the issue of the total amount of UM benefits to which a plaintiff is entitled. The issue of whether an individual is entitled to UM coverage at all is addressed in another part of G.S. § 20-279.21(b)(3), which provides:

For purposes of this section "persons insured" means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies[.]

Under this statute there are 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 . . . of the named insured, the insured vehicle[.]" Smith v. Nationwide Mut. Ins. Co., 328 N.C. 139, 143, 400 S.E.2d 44, 47 (1991) (citing Crowder v. N.C. Farm Bureau Mut. Ins. Co., 79 N.C. App. 551, 554, 340 S.E.2d 127, 129 (1986)). "Members of the first class are `persons insured' for the purposes of UM coverage regardless of whether the insured vehicle is involved in the insured's injuries." Bray v. N.C. Farm Bureau Mut. Ins. Co., 341 N.C. 678, 682, 462 S.E.2d 650, 652-53 (1995).

In the instant case, decedent's parents were the named insured under the Integon General policy. It is undisputed that decedent, as a member of her parents' household, was an insured of the first class under that policy. "As a person insured of the first class, [decedent] was entitled to UM benefits under [plaintiff's] automobile policy whether she was struck by an uninsured motor vehicle while riding in an insured vehicle, or on a motorcycle, or just walking down the street." Id. at 683, 462 S.E.2d at 653 (citing Bass v. N.C. Farm Bureau Mut. Ins. Co., 332 N.C. 109, 418 S.E.2d 221 (1992)). Thus, if plaintiff is entitled to UM benefits under the Integon General policy, Integon General would pay a proportional part of the total. The same principle applies to the Virginia Mutual policy. If the Virginia Mutual policy provided UM benefits to decedent in the factual circumstances of this case, then Virginia Mutual would be responsible for a proportional share of the total UM benefits. See Nationwide Mut. Ins. Co. v. Haight, 152 N.C. App. 137, 566 S.E.2d 835 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 627 (2003). We conclude that the trial court erred when it held that, if Integon National paid the total to which plaintiff was entitled, this would free both Virginia Mutual and Integon General from any liability for a proportional share of the total amount.

UM Coverage under the Virginia Mutual Policy

Regarding the plaintiff's entitlement to UM benefits under the Virginia Mutual policy, the trial court ruled that "Brett Patton Ford, deceased, was not a resident of the household of Elizabeth Chelsea Ford on October 1, 2000, and was therefore not an insured under the policy of automobile insurance issued by Virginia Mutual Insurance Company to Elizabeth Chelsea Ford." We conclude that, because the evidence presented a genuine issue of material fact on the question of Chelsea's residency, the trial court erred by granting summary judgment on this basis.

The Virginia Mutual policy was issued to decedent's sister, Chelsea. The policy defined "insured" as either the named insured (Chelsea) or any "family member" of the named insured, and defined "family member" as a "person related to you by blood, marriage or adoption who is a resident of your household. . . ." At the time of the accident, decedent lived in Statesville, N.C., with her parents, while Chelsea attended school part time and stayed in a furnished apartment in the Indiana church building where she was employed. On this basis, defendant characterizes the residency issue as a question of whether decedent lived in Chelsea's "household" in Indiana. However, defendant's position omits the preliminary factual determination of whether Chelsea had established her own "household," or whether she was still a resident of her parents' and decedent's household. We conclude that the evidence on this question presents a factual dispute for the jury's resolution.

Several principles guide our analysis of this issue. First, where a question arises as to whether a person is a relative of the named insured who is a member of the same household, the individual's "status is determinable on the basis of conditions existing at the time the casualty occurred." Newcomb v. Great American Ins. Co., 260 N.C. 402, 405, 133 S.E.2d 3, 6 (1963). Second, summary judgment should not be entered if the evidence raises a factual conflict as to a party's residence. See Great American Ins. Co. v. Allstate Ins. Co., 78 N.C. App. 653, 338 S.E.2d 145 (1986) (summary judgment for insurer properly denied where evidence raised question of fact as to whether driver was a resident of his parents' household at the time of the collision); Lumbermens Mut. Cas. Co. v. Smallwood, 68 N.C. App. 642, 644, 315 S.E.2d 533, 535 (1984) (summary judgment improper if "there is some question about whether [driver] was a `resident' of her mother's household at the time of the accident"). In the instant case the plaintiff's evidence tended to show the following: The Virginia Mutual policy issued to Chelsea listed her address as "1920 Council Ave., Statesville, N.C." where the decedent resided. Her parents lived at the Statesville address since before her birth, and Chelsea grew up there. After Chelsea graduated high school in 1994, she lived at home for two years. In August 1996, Chelsea enrolled at Indiana Bible College, in Indianapolis. She attended the school for five years. For the first four years, Chelsea lived on campus and returned home to Statesville every summer to live with her family. In August 2000, Chelsea returned for her fifth year of school and enrolled as a part-time student. During the school year, Chelsea worked at the Precious Life Day Care Ministry, in the New Life Christian Church. She lived in a furnished apartment in the church building. Chelsea did not have a lease on the apartment; she did not pay for utilities; her telephone was an extension on the pastor's home line. It was in October 2000, while Chelsea was a part-time college student and was staying in this apartment, that her sister's accident occurred. At the time of the accident, Chelsea had a N.C. driver's license, her mail and bank statements went to the Statesville address, and she still had a room in her parents' house.

"[W]hether a person is a resident of a particular place is not determined by any given formula, but rather depends significantly on the facts and circumstances surrounding the particular issue." Glover v. Farmer, 127 N.C. App. 488, 491, 490 S.E.2d 576, 578(1997). A college student does not automatically become a resident of his or her college community. Barker v. Iowa Mut. Ins. Co., 241 N.C. 397, 399-400, 85 S.E.2d 305, 307 (1955). Further, "in determining whether a person in a particular case is a resident of a particular household, the intent of that person is material to the question." Great American Ins. Co. v. Allstate Ins. Co., 78 N.C. App. 653, 656, 338 S.E.2d 145, 147 (1986). In this regard, we note that Chelsea testified that she never changed the permanent residence on her legal documents, such as her driver's license and automobile insurance policy, because "[e]verywhere [she] lived ha[d] been temporary" and that she "always had intentions to return to North Carolina." She also testified that she considered herself a resident and a member of her parents' household in Statesville.

When the trial court ruled that, as a matter of law, the decedent was not part of Chelsea's household, the court necessarily resolved factual issues that are properly within the province of the jury. There was evidence that at the time of the accident, Chelsea was an unmarried undergraduate living in a furnished apartment in a church where she worked. She had not made any legal changes to her residency status, such as changing her driver's license, or registering to vote in Indiana. In fact, the Virginia Mutual policy lists the Statesville address. Chelsea "came home" every summer and maintained all her records (permanent address, etc.) at her parents' house. She testified that she "always intended" to return to North Carolina, and that she regarded her dorm rooms and the church apartment as "temporary." We conclude that the evidence raises an issue of material fact regarding whether Chelsea had her own "household" or remained part of her parents' household.

Defendant Virginia Mutual cites Davis v. Maryland Cas. Co., 76 N.C. App. 102, 106, 331 S.E.2d 744, 746 (1985) for the proposition that "a person can be a resident of more than one household for insurance purposes." We note that Davis involved a different issue (whether the minor child of divorced parents could be a resident of both his mother's and father's household), and cited only a 1968 opinion from the Georgia Court of Appeals in support of the statement that a person may be a resident of two households. Moreover, assuming arguendo, that Chelsea could be a resident of both her parents' household and also her own separate household, it is nonetheless a question of fact whether or not this occurred. We conclude that the trial court erred by granting summary judgment on the issue of whether decedent and Chelsea were members of the same household as of the date of the accident.

For the reasons discussed above, we affirm the trial court's ruling as to the total amount of UM benefits, based on the "other insurance" clauses in the various policies. We conclude that the trial court erred by granting summary judgment on the issue of plaintiffs' entitlement to UM benefits under the Integon General and Virginia Mutual policies, which are potentially liable for a pro rata share of plaintiff's UM benefits. We also conclude that the trial court erred by granting summary judgment for Virginia Mutual on the issue of Chelsea's residence. Accordingly, the trial court's order of summary judgment is

Affirmed in part and reversed in part.

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).