Huffman v. Peerless Insurance Company , 17 N.C. App. 292 ( 1973 )

193 S.E.2d 773 (1973) 17 N.C. App. 292

Ricky Glenn HUFFMAN
v.
PEERLESS INSURANCE COMPANY.

No. 7318SC4.

Court of Appeals of North Carolina.

January 17, 1973.

Edwards, Greeson & Toumaras by Harold F. Greeson, Greensboro, for plaintiff appellant.

Jordan, Wright, Nichols, Caffrey & Hill by William L. Stocks, Greensboro, for defendant appellee.

HEDRICK, Judge.

The policy of automobile liability insurance issued by defendant to John Daniel Johnson obligates the insurer "[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . bodily injury . . .." By the terms of the policy, insured persons include "the named insured and any resident of the same household . . .." Thus, the critical question raised by this appeal is whether John Daniel Johnson or Roby Daniel Johnson were "legally obligated" to pay damages to the plaintiff pursuant to the consent judgment entered on 24 November 1971.

With respect to John Daniel Johnson, the consent judgment provides:

"NOW, THEREFORE, by and with the consent of the parties, IT IS ORDERED, ADJUDGED AND DECREED that this action shall be and the same is hereby dismissed with prejudice as to the defendant John Daniel Johnson. . .."

As to Roby Daniel Johnson, the consent judgment provides:

"[T]hat the plaintiffs shall have and recover of the defendant Roby Daniel Johnson the sum of $20,000.00, but this judgment shall not be a lien upon any property owned or to be owned in the future by the defendant Roby Daniel Johnson, and this judgment shall not be the basis upon which execution can issue against any property of the defendant Roby Daniel Johnson, at present or in the future. . . ."

Additionally, the consent judgment provides "that the plaintiffs shall mark this judgment `Satisfied in full as to principal, interest and costs' after collecting all of the insurance proceeds available to the defendant Roby Daniel Johnson for the accident giving rise to this action . . .." Obviously, under the terms of the consent judgment, John Daniel Johnson and Roby Daniel Johnson were not legally obligated to pay damages to plaintiff. The case of Coblentz v. American Surety Company of New York, 416 F.2d 1059 (5th Cir. 1969) cited and relied upon by appellant is not controlling in this jurisdiction.

Summary judgment for the defendant insurer is

Affirmed.

GRAHAM, J., concurs.

VAUGHN, J., concurs in the result.