Eury v. Nationwide Mutual Insurance , 109 N.C. App. 303 ( 1993 )

EAGLES, Judge.

Plaintiff first argues that the trial court erred by denying her motion for summary judgment and entering summary judgment in favor of the defendant. Specifically, plaintiff argues that the specific terms of defendant’s insurance policy do not exclude her from UIM coverage and that North Carolina’s UM/UIM statutes provide her with UIM coverage.

Summary judgment should be granted when a party establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56 of the Rules of Civil Procedure; Ipock v. Gilmore, 73 N.C. App. 182, 326 S.E.2d 271, disc. rev. denied, 314 N.C. 116, 332 S.E.2d 481 (1985).

Ward v. Turcotte, 79 N.C. App. 458, 459-60, 339 S.E.2d 444, 446 (1986).

Plaintiff argues that the language of Nationwide’s insurance policy does not exclude her from coverage because “[t]hat language can only be read as excluding from the definition of an uninsured motor vehicle [which includes an underinsured motor vehicle] those vehicles which are owned jointly by the named insured and the named insured’s spouse.”

Plaintiff next argues that she is afforded coverage pursuant to G.S. § 20-279.21(b)(3). That statute provides, in part, “[t]he term ‘uninsured motor vehicle’ shall not include: a. A motor vehicle owned by the named insured. . . .” Plaintiff contends that because defendant’s policy lists both her and her husband as the named insured, that the statutory exclusion from coverage would require a vehicle to be jointly owned by both her and her husband.

We are unable to discern, from the record before us, whether the vehicle in question is owned by the plaintiff individually, by Mr. Eury individually, by the plaintiff and Mr. Eury jointly, or by someone else. In this record there is no automobile certificate of title and no stipulation, admission or similar proof to establish who owns the vehicle in question. Assuming arguendo, that the plaintiff has asserted a viable claim, summary judgment is inappropriate because a material fact necessary to the plaintiff’s claim remains in issue. Accordingly, we must reverse the trial court’s order of summary judgment and remand for appropriate proceedings below.

Reversed and remanded.

Judges ORR and WYNN concur.