Caison ex rel. Caison v. Nationwide Insurance

WELLS, Judge. We treat the trial court’s granting of plaintiff’s motion for summary judgment, after all of the evidence was presented at trial in the Trudy Mae Caison case, which recited that the motion was also considered one for a directed verdict, as a reversal by the trial court of the decision it had just rendered to deny plaintiff’s motion for a directed verdict. Cf., Creasman v. Savings & Loan Ass’n., 279 N.C. 361, 183 S.E. 2d 115 (1971), cert. denied, 405 U.S. 977, 31 L.Ed. 2d 252, 92 S.Ct. 1204 (1972) (motion for involuntary dismissal under Rule 41(b) in jury case properly treated as one for a directed verdict); Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970) (motion for nonsuit in civil trial treated as one for a directed verdict). The criteria for determining whether the trial court properly granted plaintiff’s motion for a directed verdict in the Trudy Mae Caison case and plaintiff’s motion for summary judgment in the Donald W. Caison case are the same: The court’s granting of both motions may be sustained only if the [32] evidence before the court failed to show that a material issue of fact existed for the trier of fact to resolve. See, Dendy v. Watkins, 288 N.C. 447, 219 S.E. 2d 214 (1975); Insurance Co. v. Bank, 36 N.C. App. 18, 244 S.E. 2d 264 (1978). There is no dispute here that Babson, the truck’s owner, gave Cliff, his employee, permission on 5 April 1974 to drive the truck from work to Cliff’s home and back to work the next morning. The accident occurred that night in Wilmington, North Carolina, a distance of approximately thirty miles from Cliff’s home. The evidence is conflicting, however, as to whether Babson gave Cliff permission to use the truck for any purpose other than to drive between home and work, including the trip to Wilmington to pick up a television set for Cliff. Babson testified at trial and stated in his deposition that he told Cliff his permission to use the truck was limited to the trip between home and work. Accordingly, unless we were to hold that, at the time of the accident, the limited permission given Cliff by Babson to use the truck only for trips between work and home constituted “permission”, within the meaning of the omnibus clause, for any use made of the vehicle by Cliff, the judgments for the plaintiffs may not stand. In Caison v. Insurance Co., 36 N.C. App. 173, 243 S.E. 2d 429 (1978) we held that the provisions of the Motor Vehicle Safety-Responsibility Act, G.S. 20-279.1, et seq., which require coverage of all persons having “lawful possession” of the insured vehicle, do not apply to coverage obtained by the insured in excess of the statutory minimum. G.S. 20-279.21(g). We stated in Caison that coverage with respect to such excess should be determined under the terms and conditions of the policy. It has been stated that this interpretation of the law encourages insurers to offer such additional insurance by enabling them to restrict the class of persons covered. See, Comment, Survey of Developments in North Carolina Law, 1978, 57 N.C.L. REV. 827, 872, 873 (1979). The policy in question here covered use of the vehicle by any person, “provided the actual use of the automobile is by the Named Insured or such spouse or with the permission of either.” The meaning of this phrase was before us previously in Caison, supra. The trial court has overlooked the significance of that opinion. It is clear that, as stated by Judge Mitchell, the terms “law [33] ful possession” and “permission” are not synonymous in their meaning or legal effect. We concluded in Caison, 36 N.C. App. at 178, 243 S.E. 2d at 432: We hold that the entry of summary judgment for the plaintiff by the trial court was error and must be reversed and the cause remanded in order that the contested issue of whether the operator had the permission of the insured or his spouse for the actual use of the insured vehicle may be resolved. As this is the second time this litigation has been before us and there must be yet another trial, we emphasize for clarity that, under the terms of the omnibus clause, the question to be determined is not only whether the driver had initial permission to use the vehicle, but whether he had permission to use it for the actual use to which he put it at the time of the accident. Of course, we recognize that factual circumstances will always control. For instance, if the permission granted is general in nature, then specific trip permission would not have to be shown. To invoke coverage where permission is at issue, the fact to be found is whether the use in question falls within the scope of the express or implied permission granted. This is what we mean by “actual use” with “permission.” Plaintiff urges us to adopt the so-called liberal rule on permission. See, Hawley v. Insurance Co., 257 N.C. 381, 126 S.E. 2d 161 (1962); Packer v. Insurance Co., 28 N.C. App. 365, 221 S.E. 2d 707 (1976). This is not our prerogative. As we noted in Packer, the General Assembly adopted the “liberal” rule as to the statutory coverage. However, from the enactment of G.S. 20-279.21(g) it is equally clear that the General Assembly did not intend to extend the “liberal” rule to coverage in excess of or additional to the required statutory coverage. For us to adopt plaintiff’s position, we would have to ignore the distinction between G.S. 20-279.21(b)(2) and G.S. 20-279.21(g). Again, that question was settled in Caison, supra. The distinction is there and we are bound by it. There is conflicting evidence as to whether Babson restricted the permission given Cliff so as to exclude the trip to Wilmington. It is for the jury to determine whether, at the time of the accident, Cliff’s actual use of the truck occurred within the scope of express or implied permission given by Babson. [34] In Trudy Mae Caison v. Nationwide Insurance Company, New trial; In Donald W. Caison v. Nationwide Insurance Company, Reversed. Judges Hedrick and Martin (Robert M.) concur.