Failure to Conform Exclusion Eliminates Insurers’ Duty to Defend Insured in Recent NC Supreme Court Case

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Pursuant to an appeal from 664 S.E.2d 317 (2008), the NC Supreme Court reversed the Court of Appeals holding that the insurance company did not have a duty to defend its insured under a CGL policy when the policy excluded coverage for false statements made about the insured’s own products. In Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield LLC, et al, the Court in reviewing the insurance policy found that the policy did provide coverage from some advertising injuries but not for injuries caused by false statements made by the insured about its own products. When the Court compared the allegations in the complaint to the insurance policy language, it was the CGL policies “Quality or Performance of Goods- Failure to Conform to Statements” exclusion that eliminated the insurance company’s duty to defend. This insurance company could still be on the hook for indemnity, which is a separate issue but for now they have dodged the bullet.

UM/UIM Coverage is Now Mandatory for Most in NC

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Drivers in North Carolina no longer have the option to select or reject Uninsured Motorist coverage (UM) or Underinsured Motorist coverage (UIM).  UM coverage provides insurance coverage when an individual is involved in an accident with a vehicle that does not have insurance. UM insurance provides coverage both for Bodily Injury and Property Damage. North Carolina now requires all drivers to carry both types of UM insurance. UIM coverage provides insurance coverage when an individual is involved in an accident and the other driver does not have enough insurance coverage to pay for all of the person’s injuries.

Beginning on January 1, 2009, The North Carolina Financial Responsibility Act as Amended by House Bill 738 requires that all automobile insurance policies in North Carolina have UM coverage and UIM coverage. The 2009 amendments provide the insured with the ability to purchase greater or lesser limits of coverage provided that the UM/UIM bodily injury limits shall not be less than 30/60. Unless the insured purchases greater or lesser limits of coverage the UM/UIM bodily injury limits shall be equal to the highest injury liability limits for any one vehicle insured under the policy. The UM property damage limits shall be equal to the highest property damage liability limits for any one vehicle insured under the policy. The insured may purchase UM property damage that is less than the policy’s liability limits for property damage provided that the UM property damage limits may not be less than $25,000 per accident.

Aside from requiring UM /UIM coverage, the Amendment eliminates the Selection/Rejection Form and made changes to section (m) which requires the insurer to provide reasonable notice of the options available to the insured.

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