Brown v. Lumbermens Mutual Casualty Co. , 19 N.C. App. 391 ( 1973 )

PARKER, Judge.

By the “uninsured motorists” endorsement to the policy here sued upon the defendant agreed to pay, up to stated limits of liability, “all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of . . . bodily injury, sickness or disease, including death resulting therefrom, . . . sustained by the insured . . . caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.” Plaintiff’s intestate comes within the policy definition of an “insured” and the hit-andrrun automobile referred to in the complaint comes within the policy definition of an “uninsured automobile” with respect to the coverage afforded by the endorsement. Nevertheless, summary judgment dismissing plaintiff’s action was proper.

The pleadings and record establish that this action was commenced more than two but less than three years after plaintiff’s action for the wrongful death arose. By G.S. 1-53 (4) an action to recover damages for wrongful death must be commenced within two years. Thus, at the time plaintiff instituted this action against defendant insurance company, his action against the uninsured motorist was already barred and he was at that time no longer “legally entitled to recover” from the uninsured motorist.

It is true, as plaintiff contends, that this action against defendant insurance company is upon contract and that G.S. 1-52(1) provides a three-year period of limitations for the commencement of such actions. This contention, however, misses the point. Summary judgment dismissing plaintiff’s action was proper not because his contract action against defendant insurance company was barred, but because the admitted facts establish that at the time this action was instituted his claim was no longer within the coverage provided by the policy. The summary judgment dismissing plaintiff’s action is

Affirmed.

Judges Britt and Morris concur.