BROWN et al v. PENN NATIONAL SECURITY INSURANCE COMPANY

Filing 28

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 1/28/2014. For the foregoing reasons, this Court finds that there is genuine issue of material fact as to whether Defendant has a duty and obligation und er NCFRA to provide benefits and coverage for any injuries sustained by Plaintiff on 6/3/2012. The Court finds that there is no genuine issue of material fact as to whether coverage exists pursuant to Policy terms because Mrs. Ferguson was not an &qu ot;insured" as defined by the Policy. Accordingly, the Court RECOMMENDS that Defendant's motion for summary judgment (Docket Entry 19 ) be GRANTED IN PART as to coverage under the Policy, and DENIED IN PART as to claims under the NCFRA. (Daniel, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DELORIS BROWN, et al., Plaintiffs, v. PENN NÂTIONAL SE.CURITY INSURÂNCE COMPANY d/b / a PE,NN NATIONAL INSURANCE, Defendant. ) ) ) ) ) ) ) ) ) ) ) "1.:1.2CY1.204 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the coutt on Defendant's Motion fot Summary Judgment pursuant to Fedetal Rule of Civil Procedue 56. pocket Entry 1,9). Plaintiffs oppose the motion. pocket F,ntry 24.) For the following reâsons, it will be recommended that the Court grant in pat and deny inpaft Defendant's Motion for SummaryJudgment. I. BACKGROUND Plaintiffs Delods Brown, Jeremy Btown and Tiffany Wilmouth (collectively "Plaintiffs') filed this declaratory judgment action against Defendant Penn National Secutity Insutance Company ("Penn National") on September 27, 201,2 seeking a declaratory judgment with respect to coverage afforded under a business auto insutance policy issued by Penn National to KTS Cable Installations, Inc. ("KTS") for injuries sustained by Plaintiffs in an automobile accident involving a vehicle owned by KTS. (Compl., Docket Entry 5.) Angella Ferguson, the wife of KTS Cable employee Bria¡ Fetguson, was ddving the vehicle when she collided with Plaintiffs' vehicle. In its motion fot summary judgment, Penn National argues that its policy does not extend coverage to Mrs. Fetguson for Plaintiffs' claims arising from the accident, nor should it be held liable under the Nonh Carohna Financial Responsibility Act ("NCFRI\"¡. Plaintiffs oppose Defendant's motion, assetting that thete is a genuine issue of matedalfact as to whethet the Penn National policy should cover Plaintiffs' injuries. II. STATEMENT OF FACTS Penn National issued a business auto policy, policy number AX9 066471.6, to KTS, with effective dates from July 1, 2011 through July 1, 201,2, atd a liability limit of $1,000,000 per accident (the "Penn National Policy" or "Policy.") @olicy at 6, Docket Entry 9-1.) Under the Business Âuto Covetage Form section, the Policy indicates that "the words "you" and "your" tefet to the Named Insuted shown in the Declarations. The words "we," "us" and "our" refet to the Company ptoviding this insurance." (d. at 22.) The Liability Covetage section discusses the type of covetage and who is insured under the policy: A. Covetage ìØe will pay aL sums an 'insuted' legally must pay as damages because of 'bodily injury' or 'propetty darnage' to which this insutance applies, caused by an 'accident' and resulting from the ownership, maintenance of use of a covered 'auto'. 1,. Who Is An Insured The following ^re'insuteds": You fot any covered'auto'; ^. b. Anyone else while using with your petmission a coveted 'aùto'you own, hite, or bottow . . . . Qd. at23.) 2 The "Named Insured" on the Policy is I(TS. The comp^îy eng cable line installation, which tequires some thtoughout the wotkday. @avis Aff. II3-4, ges in tesidential of its employees to ttavel to various sites Docket Entty 20.) As part of its business, I(TS permits some employees to ddve company-owned vehicles fot work-related travel and I(TS required such employees to sign a I{TS Vehicle.A.greement ("Agteement"). (Id.Ífl 4-6.) The beginning of the Agteement reads: "Agteement between KTS Cable Installations, Inc. hereinaftet referred to as the company, and the employee named below fot the assignment of a Company-owned c^t fot business Docket Entty 23-3 at 2.) use with cettain petsonal use pdvileges." (Agteement, Paragtaph 7 states, "Petsonal use of the Company vehicle is not permitted under any circumstances." (Id.) Paragraph 8 states, "The custodian will be responsible for safe, over-night parking of the vehicle in a home g r^ge, private driveway, or othet safe legal arcas off public highways." Qd.) KTS conducts a background check on employees ptiot to petmitting an employee to drive ^ compaîy-owned vehicle. flWeathers ,{.ff. T 9, Docket Entty 22.) KTS regulatly updates Penn National regarding ddvers who will be opetating its vehicles. (Penn National's Resp. to Pls.' Fi-tst Req. for Production of Docs fl 9, Docket Etrtry 23-1. at 1,0.) Btian Ferguson was fìrst employed with KTS Cable as a cable installer in November 201,0. (8. Ferguson Dep. at 48, Docket E.rtty 25-5.) After ttarring, he signed the Agreement with I{TS Cable on December 4,201,0 and was assigned a KTS van fot work. (Id. at 29-30.) Mt. Ferguson is matded to Ângella Dixon Hayes Ferguson. Mt. Ferguson testified that Mrs. Ferguson occasionally drove the KTS van to go to the stote or pick theit kids up after the engine blew up in their vehicle. (Id. at 33-34.) Mrs. Ferguson dtove the van thtee to fout .,) times a week. (Â. Ferguson Dep. at30, Docket E.rtty 25-3.) Mrs. Fetguson knew that the van belonged to KTS. Qd. at27.) KTS never gve Mrs. Fetguson permission to ddve v^Ír. @. Ferguson Dep. 37.) Mrs. ^t the Ferguson did believe, howevet, that I(TS petmitted personal use of its company-owned vehicles. (,\. Ferguson Dep. ^t 27.) Mt. Ferguson also believed personal use of the KTS vans was permitted based upon past histolT with other cable companies and what he knew about othet I(TS employees he observed with people in their company-owned vehicles. @. Fetguson Dep. ^t38-39.) On June 3, 201.2, Plaintiffs wete involved in an automobile accident with Mrs. Ferguson. She was driving to pick up het daughter in the KTS Van assþed to Mt. Ferguson, with his permission, as she had done on numerous other occasions. (,\. Ferguson Aff. I 3, Docket E.rtty 25-2;8. Ferguson urìaware that she was not supposed Aff. 1[ 10, Docket Entry 25-4.) Mts. Fetguson was to drive the I{TS Van. (,A.. Ferguson Âff. I 4.) Mt. Fetguson rìever discussed the Âgreement with Mrs. Fetguson and never told her that she was not allowed to drive the vehicle. (Id.; A. Ferguson Dep. at 27;8. Fetguson Aff. 1[ 10.) Mrs. Ferguson stated she was not aware that het drivet's license was suspendedl because she did not receive the notification ftom the Depattment of Motor Vehicles. (,{. Fetguson Aff. fl 5; ,{.. Ferguson Dep. at 44-47.) Mr. Ferguson was not aware at the time of the accident that Mrs. Ferguson's driver's license had been suspended. @. Fetguson Aff. I 11; B. Fetguson Dep. at 61; A. Ferguson Dep. at 51.) t In her deposition, Mrs. Ferguson testified that she leamed that her license was suspended aftet receiving a ticket for imptoper equipment in October 2010. (,{.. Fetguson Dep. àt 45-46.) Mts. Ferguson testified that she thought issues with her license were tesolved aftet she paid the ticket issued in Oklahom^. (Id.) 4 III. DISCUSSION A. Standard of Review Pursuant to Rule 56 of the Federal Rules of Civil Procedute, sununary judgment shall be gtanted 'If the movant shows that there is no genuine dispute as to any matenal fact and the movant is entitled to judgment as a matter of Int'l Bøs. Machs. Corþ., 135 law." Fed. R. Civ. P. 56(a); see Zahodnick u. F.3d 911,, 91,3 (4th Cir. 1,997). "Facts are'matenal' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonabl. i"ry to return a verdict for the nonmoving party." News dv Ob:erver Pab/g Co. u. Raleiþ-Dørhan Airport Aatb., 597 F.3d 570, 576 (4th Cit. 2010) (citing Anderson a. Libe@ I-nbþ¡ Inc., 477 U.S. 242,248 (1,986)). The parry seeking sunìmary judgment bears the initial butden of coming forward and demonstrating the absence of a genuine issue of matenal fact. Temkin a. Frederick Counfl Cnmm'rs, 945 F.2d 716,71.8 (4th Cir. 1,991) (citing Celotex u. Catrett, 477 U.S. 317,323 (1986). Once the movingp^rq has met its burden, the non-moving patty must then affirrrrattvely demonstate that thete is a genuine issue of material fact which requires tnal. Matsashita Elec. Indus. Co. Ltd. u. Zenith Radio CorP.,475 U.S. 574, 587 (1986). Thete is no issue for trial unless thete is sufficient evidence favodng the non-movingpàtty for a fact findet to teturn a vetdict for thatp^nry. Anderson,477 U.S. at 250; Slluia Deu. Corp. u. Calaert Counfii, Md.,48 F.3d 810, 817 (4th Cir. 1995). When making the summary judgment determination, the court must view the evidence, and all justifiable infetences from the evidence, in the light most favotable to the non-moving p^tq. Zahodnick,135 F.3d at9'1.3;Haþerin u. AbacusTech. C0rp.,1,28F.3d19"1,,L96 (4th Cir. 1,997). 5 Moreover, "once the moving party has met his butden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show thete is a genuine issue for ttial." Baber C1t. 1,992). "Permissible inferences 87 4-7 5 (4th must still be within the tange of reasonable ptobability, necessalT inference is so tenuous that u. F.2d 872, it is the duty of the court to withdtaw the case from the jury when the however, and Motor Co. u. Hosp. Corp. of An.,977 it rests merely upon speculation and conjectue." Ford MtDauid,259 tr.2d 261,,266 (4th Cir. 1958). Moteover, the non-movant's proof must meet the substantive evidenttary standatd of proof that would apply at a tnal on the merits. Mitchell u. Data Gen. Corp., 12 F.3d 1,31,0, 1,31,6 (4th C1t. 1,993), nodfied ou other groands, Stokes u. IØestinþoase Sauannah Nuer C0.,420,429-30 (4th Cir. 2000); Del-¿on u. St. JosEh Ho{P., lnc.,877F.2d1229,1233 n.7 (4th Cir. 19S9). Unsupported heatsay evidence is insufficient to overcome a motion fot summary judgment. Euans a. Techs. Applications dv Serv. C¿., 80 F.3d 954,959 (4th Cir. 1996). In this case, the interpretation of the Policy is critical to the determination of liability on the part of Penn National. "[A]s with all contracts, the goal of consttuction is to anive at the intent of the parties when the policy was issued." Il/oods u. Insurance C0.,295 N.C. 500, 505,246, S.E.2d 773,777 (1978). Thus, "where a policy defines ù term, that definition is to be used." C.D. Spangler Const Co. u. Indas. Cran/esltaft dz Engþ Co., lnc.,326 N.C. 1.33,1.42, 388 S.E.2d 557, 563 (1990) (quotations omitted). "fN]ontechnical wotds, not defined in the policy, are to be given the same meaning they usually receive in otdinary speech, unless the context requites otherwise." Grant u. Insarance Co., 295 N.C. 39, 42, 243 S.E.2d 894, 897 (1978). ,A.s noted by Notth Carohna courts: 6 coverage issues, "[t]he interpretation of langtage used in an insurance policy is a question of law, governed by well-established rules of . [f]h. policy is subiect to judicial consttuction only where construction . the language used in the policy is ambiguous and teasonably susceptible to more than one interpretation. In such cases, the policy must be construed in favor of coverage and against the insutet; howevet, if the language of the policy is cleat and unambiguous, the coutt must enforce the conttact of insurance as it is written." In determining ErieIns. Exch.,153 N.C. App. at 71,1,-1.2,570 S.E.2d at765 (altetations in otiginal) (quoting Allstate Ins. Co. a. Chatterton,1.35 N.C. Âpp. 92,94-95,518 S.E.2d 81.4,876 (1,999). Moreover, the Founh Circuit previously stated: ,{. court faces a conceptually difficult task in deciding whethet to gr^ît surnmary judgment ori a matter of contract interptetation. Only arr unambiguous wtiting justifies summaq¡ judgment without resort to extrinsic evidence, and no writing is unambiguous if susceptible to two teasonable intetpretations. The ftst step for a court asked to grant summary judgment based on a contract's interpretation is, thetefore, to detetmine whether, as a matter of law, the contract is ambiguous or unambþous on its face. If a tvørt proþerþ detennines that the nnlract is anømbiguzus 0n the dispositiue issae, it ma1 then Proþtrb interpret the contract as a malter of law and grant sammary jadgnent becaase no interþretiue fac't: are in genuine issae. Even whete a court, however, detetmines as a mattet of law that the contlact is ambiguous, it may yet examine evidence extrinsic to the contract that is included in the summary iudgment matedals, m^ttet of law, dispositive of the interpretative and, if the evidence is, ^s ^ issue, gtant summarT judgment on that basis. If, however, resort to extrinsic evidence in the surnmary judgment materials leaves genuine issues of fact respecting the contract's ptoper inte¡ptetation, sufiìmary judgment must of course be tefused and interpretation left to the triet of fact. Il/ashingÍon MeÍro. Area Transit Aatlt. u. Potomac Inu. Propeøie¡ Inc., 47 6 F .3d 231 , 235 (4th Ck. 2007) (internal quotation omitted) (emphasis added). North Caroltna law places the butden on the parq seeking coverage undet an insurance policy to prove that covetage exists. Penn Am. Ins. Co. u. Va/ade,28 F. App'x 253, 259 (4thCu.2002);Fortaneln¡. Co. u. Oweas,351 N.C. 424,430,5265.8.2d463,461 (2000). Thus, the butden here is on Plaintiffs to show that coverage under the Policy exists. 7 B. Analvsis Penn National first argues that terms Ferguson as an insured individual. of the Policy itself do not include Mrs. It is clear that I(TS was insured, and thete appeats to be no dispute that Mr. Ferguson was given petmission to dtive KTS vehicles and was thetefore "insured" under the Policy. @. Ferguson Dep. at 50-51; Davis Aff. '1,0-1,1,,13, Docket Entry 21,;'Weathers Âff. T1[ I 8;Fitzgerald Aff. T1[ 11, 13.) Plaintiffs argue that Mts. Fetguson was also given express permission to ddve the I(TS van by vittue of the language in Agreement between Mr. Ferguson and I(TS which allowed personal use the of the KTS van. Plaintiffs further argue that the Agreement itself is ambþous on the issue of personal use and should be construed against KTS. The undetsigned believes that an ambiguity exists. The beginning of the .,{.greement indicates that there may be certain petsonal use privileges, while pangraph 7 states that "Personal use Agreement ^t of the Company vehicle is not permitted undet any circumstances." (See 2.) The Agreement also indicates that employees were at minimum permitted to have the vehicles parked at theit home. (Id.ll9.) There is nothing in the Policy defining petsonal use pdvileges, which are susceptible to more than one meaning. However, this ambiguity is not petinent to the dispositive issue relating to the Policy: whethet Mts. Ferguson was given express permission to ddve the I{TS van, and was therefore, insued by definition in the Policy. See Bailelt u. Gen. Ins. Co. of Am.,265 N.C. 675,678,1'44 S.E.2d 898, 900 (1965) ('lWhere express permission is telied upon it must be of an afîlrmative charactet, directly [and] distinctly stated, cleat and outspoken, and not merely implied or left to inference."). Personal use privileges, if any, telate to Mr. Fetguson's use 8 of the vehicle, not Mrs. Ferguson's. Therefote, the undersigned finds that Mrs. Fetguson did not have express permission to drive the KTS van. Defendant also argues that Mts. Fetguson did not have implied petmission to ddve the I(TS van. North Carolina case law has held that "one permittee does not have authodty to select another permittee without specific authorizaion from the named insured." Qd.) In our case, it is clear that Mr. Ferguson is the "original permittee" with ftom I(TS to drive the I(TS van. (8. Ferguson Dep. at 50-51.; Davis Aff. lTI 10-11, 13, Docket Entry 21.;'Weathers Aff. T1T 11, 13.) exptess permission I 8;Fitzgenld Âff. It is also cleat that I(TS did not give authonzaTton to Mr. Fetguson to select anothet permittee to ddve the I{TS van. (Davis Aff. 1[ 10.) Thus, Mr. Ferguson could not, on his own, designate Mrs. Ferguson as a second permittee without ditect authorizaion from KTS. Nationwide Møt. Ins. Co. u. Chanrar, 25 N.C. App. 482,486,21,4 S.E.2d 438,442 (1,975) ("[A] person, driving only with the permission of a permittee, is not consideted as using the automobile with either the express or implied permission of the ownet. . . .") Plaintiffs funher argue that Mrs. Ferguson had implied permission employees toutinely used I{TS vans because fot petsonal use with I(TS's knowledge. The North Carolina Court has previously stated that "implied petmission involves arì infetence atising from a course of conduct ot relationship between the parties, in which there is mutual acquiescence ot lack of objection under circumstances signi$'ing assent." Bailey 265 N.C. at 678, 1.44 S.E.2d at 900 (intetnal quotation omitted). Mr. Ferguson submitted deposition testimony regarding both I(TS's knowledge of other employees' petsonal use of the vans, and Mr. Ferguson's witnessing of a non-employee in the drivet's 9 seats of a I{TS van. As such, Plaintiffs argue that implied petmission was grven to Mrs. Fetguson because the culture of I(TS fostered a belief that non-employee spouses could drive the van. Plaintiffs cite Nationwide Mut. Ins. Co. u. L¿nd where the North Caroltna Supteme court stated, "It may be found that the insuted has given implied permission whete the named insured has knowledge of a violation of insttuctions and fails to make a significant ptotest." 318 N.C. 551.,563,350 S.E.2d 500, 506-07 (1,986) (internal quotation omitted). Plaintiffs' argument fails for two reasons. Fitst, Mt. Ferguson admits that he never actually sâw a non-employee physically move ot drive a I{TS van, and that pottions of his testimony were purely speculative. (B. Fetguson Dep. ^t 40-41,.) Secondly, even if such culture exists, such acquiescence by KTS is irrelevant to Mrs. Ferguson's personal use of the KTS van because I{TS was unaware of such specifìc use. See In¡. Co. of N. Arn. u. Aetna Ufe dy Cas. Co., 88 N.C. ,A,pp. 236, 241.,362 S.E.2d 836,839 (1987) ("Thete [was] no evidence that femployer] had ever seen [third-paty drivet] ot that [employer] had any knowledge of fthird-party driver's] operation of its car until aftet the collision giving rise to this litigation."); Bailey 265 N.C. at 678,1.44 S.E.2d at 900 (no implied petmission whete named insured lacked knowledge of driver's use of the vehicle); Osmanqada u. Eldridge Conrete Const., Inc., Case No. 3:10-CV-1., 2011 WT, 926235 at *3 CX/.D. Va. Mar. '15, 201'1) ("[,\] showing that the owner never met the ddver is genetally fatal to an implied permission claim."). Since KTS was unaware of Mts. Ferguson's use of the vehicle prior to and on the day of the incident, Plaintiffs'implied permission claim fails. Thetefore, the underslgned concludes ^ as m^tter of law that thete is no genuine issue of rrraterial fact as to whether Mrs. Fetguson had exptess or implied permission to ddve the I{TS van on the day of the incident. 10 Couerage under the North Carolina Finanùal Responsibili4t Act Lastly, Defendant argues that coverage does not lie undet the NCtrR because Mts. Ferguson was not in lawful possession of the KTS van at the time of the incident. The NCFR-,\ tequires automobile insuters to provide $30,000.00 per person and $60,000.00 per accident coverage if of a minimum coverage of the individual dtiving the vehicle at the time of the accident was eithet in "lawful possession" of the vehicle, ot driving with the express or implied permission of the named insured. .1¿¿ N.C. Gen. Stat. S 20-279.21þX2). "IJnder North Carohna law, limited covetage for drivers in 'lawfui possession' of a vehicle must be 'written into every motor vehicle liability policy as a matter of law."' Osmanlada, 201,1, WL 926235 at x2 (quoting North Carolina Farm Bareau Mat Ins. Co. u. Simþi¿ø 198 N.C. ,A.pp. 190, 192,678 S.E.2d 753,755 (2009). ìØith tegard to "lawful possession," the Notth Carohna court has held that "permission exptessly granted by the original permittee is sufficient for purposes of the statute to place the second permittee in 'lawful possession"' under N.C. Gen. Stat. S 20- 279.21þ)Q). Chantos,25 N.C.,\pp. at 487,2"1.4 S.E.2d possession of a vehicle . . . if ^t442. "[.{] person is in lawful he is given possession of the automobile by the automobile's owner or ownerrs permittee undet a good faith belief that giving possession of the vehicle to the third p^tq would not be in violation Bareaa Ins. Co. a. Nationwide of any law ot conttactual obligation." N.C. Farnt Mat. In¡. Co.,1.68 N.C. Âpp. 585, 587, 608 S.E.2d 1.12,1,1,3 (2005) (internal quotation omitted). The third pârty must also take possession in good faith belief l1 and"withoutnotice of App. 517, any 521., 439 S.E.2d restrictionsonhisuse." NationwideMøt Ins.Co.u.Baer,113N.C. 202,205 (1,994)., Defendant argues that the present case is similar to the Broøþton case. In lowa Nat. Mat. In¡. Co. u. Broaþîon,Btdget Rent A Car rented a vehicle to Cana:way pursuant to written agreement and on condition that no one under the age of trventy-one would ddve the car. 283 N.C. 309,313,196 S.E.2d 243,246 (1973). Cauaway permitted a nineteen year old to drive the vehicle and he was subsequently involved in an accident. Id. The coutt ín Broøgltton held that "[t]he owner obligated itself to be responsible Carcaway could not, for Carcaway's negligence but in violation of his own âgreement, make the owner tesponsible fot [the nineteen yeat old's] negligence." Id. at31.4,1,96 S.E.2d at247. The undersigned finds that in Brougbton, Broaghton is distinguishable ftom the present case in that itwas cleat that the written rental agreement was unambiguous. Here, however, the ambþous terms in the Âgreement and Mt. Ferguson's knowledge of other employees' petsonal use of the I{TS vans create a question of fact as to whether Mr. Ferguson believed he was in violation of any contractual obligation when he permitted Mrs. Fetguson to drive the van. Futthermore, Mr. Ferguson was rìot knowledgeable of Mrs. Ferguson's suspended license at the time of the incident. These facts create a genuine issue of matedal fact as to whether Mr. Ferguson had a good faith belief that Mrs. Ferguson was permitted to dtive the I(TS van. The coutt notes that I(TS appears extremely cautious as it telates to employee 2 In District of Virginia discussed the North Carolina dings in Baer and regarding whethet it is sufficient to show only the good faith belief of the third party ddvet, or whetlret it is necess^ry to also show the good faith belief of the original permittee. Osmanqada, 201,1, WL 926235 at *5. The patties in the present case do not address this issue. Because the Coutt finds a genuine issue of matettal fact exists as to both Mt. and Mts. Ferguson's good faith belief, it will not frrrther addtess this issue. Osmanqada, the Westetn Belasco 12 ddvers by having them sign a vehicle agreement, conducting motor vehicle backgtound checks, and keeping Defendant abreast of the employees authodzed to ddve. Flowever, Mt. Ferguson's belief regarding othet employees' petsonal use ambiguity in the Agreement bears upon the outcome of the KTS vans and the of this case as it telates to "lawful possession." With regard to Mrs. Ferguson's good faith belief, based upon her deposition testimony and afftdavít, sufficient evidence of a genuine issue of matenal fact exists as to whether she had a good faith belief that she took possession of the van without notice that it violated "any law or contractual obligatiorì." N.C. Farrn Bureau Ins. Co., 168 N.C. App. at 587, 608 S.E.2d at1,'1,3. Moreover, Mrs. Ferguson did not need KTS'permission to ddve the KTS van to be in "lawful possession." Caison u. Nationwide Ins, Co.,36 N.C. App. 1'73,178, 243 S.F^2d 429, 432 (1973). Because the Court finds a genuine issue exists âs to Mt. and Mts. Ferguson's good faith belief of Mrs. Ferguson's lawful possession, surrunary judgment should not be granted in favor of Defend^ntas to covetage undet the NCtrRÂ. IV. CONCLUSION For the foregoing reasons, this Coutt finds that thete is a genuine issue of matedal fact ^s to whether Defendant has a duty and obligation under the NCFRA to ptovide benefits and coverage for any injuries sustained by Plaintiffs on June 3,201'2. The Coutt finds that there is no genuine issue of material fact as to whether coverage exits pursuant to Policy terms because Mts. Fetguson was not an "insured" as defined by the Policy. Accordingly, the Court RECOMMENDS that Defendant's motion for summary judgment pocket Er,try 19) be GRANTED IN PART as ro DENIED IN PART as to claims under the NCFR 1,3 {.. coverage undet the Policy, and L\T'dxrer Strtr s hlrtgi strrte Jucþ January 28,201.4 Dutham, Notth Carohna t4

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