                              NO. COA13-640

                   NORTH CAROLINA COURT OF APPEALS

                       Filed: 21 January 2014


NATIONWIDE MUTUAL INSURANCE
COMPANY, INC.,
     Plaintiff,

     v.                               Wake County
                                      No. 12 CVS 8135
INTEGON NATIONAL INSURANCE
COMPANY and STATE NATIONAL
INSURANCE COMPANY,
     Defendants.


    Appeal by plaintiff from order entered 27 March 2013 by Judge

Carl R. Fox in Wake County Superior Court.    Heard in the Court of

Appeals 23 October 2013.


    Cranfill Sumner & Hartzog, LLP, by George L. Simpson, IV, for
    plaintiff-appellant.

    Bennett & Guthrie, PLLC, by Rodney A. Guthrie, for defendant-
    appellee Integon National Insurance Company.

    Pinto Coates Kyre & Bowers, PLLC, by Deborah J. Bowers, for
    defendant-appellee State National Insurance Company.


    HUNTER, JR., Robert N., Judge.


    Plaintiff Nationwide Mutual Insurance Company (“Plaintiff”)

appeals from a 27 March 2013 order granting summary judgment in

favor of Integon National Insurance Company (“Integon”) and State
                                      -2-
National Insurance Company (“State National”).1             Upon review, we

find the trial court erred by not applying a pro rata distribution

of   the   credit   paid   by   the   underinsured     motorist’s   insurance

provider to all three underinsured motorist insurance (“UIM”)

policy providers.      We reach this conclusion because the respective

excess clauses were (i) mutually repugnant and (ii) because the

claimant was a Class I insured under all three UIM policies.            Under

North Carolina Farm Bureau v. Bost, 126 N.C. App. 42, 483 S.E.2d

452 (1997), the trial court was required to allocate credits and

liabilities amongst the three UIM policyholders on a pro rata basis

if both of these conditions are met.          We thus reverse the trial

court and remand for the trial court to enter summary judgment for

Plaintiff.

                       I. Facts & Procedural History

      This declaratory judgment action arose out of an insurance

coverage    question    allocating     proceeds   of    three   separate   UIM

policies to pay a wrongful death claim.                Plaintiff filed its

original complaint for declaratory judgment on 8 June 2012, which

was amended by consent on 7 December 2012.2               Integon and State



1 Collectively, Integon and State National will be referred to as
“Defendants.”
2 The complaint was amended to reflect ownership of the insurance

policy held by State National, rather than the originally named
party, Direct General Insurance Company.     State National is a
                                      -3-
National timely answered Plaintiff’s complaint on 10 January 2013

and 17 January 2013 respectively.           All parties moved for summary

judgment.    The summary judgment motions were heard by Judge Carl

R. Fox in Wake County Superior Court on 7 March 2013.                 Judge Fox

denied    Plaintiff’s   motion   for       summary   judgment      and     allowed

Defendants’ motions on 27 March 2013.            Plaintiff filed a timely

written   notice   of   appeal   on   18    April    2013.        Plaintiff    and

Defendants stipulated to the following facts.

     A    three-vehicle    accident     occurred     on      23   August     2011,

involving the decedent Nelson Lee Clark (“Clark”), the tortfeasor

Gaye Holman Ikerd (“Ikerd”), and Lucille Pitts (“Pitts”).                    Ikerd

ran a red light and collided with Clark’s motorcycle.                 Pitts was

driving a separate vehicle that ran over Clark after he was thrown

from his motorcycle.      Ikerd admitted liability to Clark’s estate,

and her liability insurer paid the policy limit of $50,000.                 Pitts

was not found liable for the incident.

     Clark was insured for UIM coverage under three policies: (1)

the Integon policy, number NCV 9474162, issued to Nelson Clark as

the named insured and covering the motorcycle that Clark was

driving at the time of the accident in the amount of $100,000 per

person; (2) the State National policy, number 47 NCQD 118505586,



subsidiary of Direct General Insurance Company.
                                -4-
issued to Nelson Clark as the named insured in the amount of

$50,000 per person; and (3) a policy issued by Plaintiff, number

6132 019939, to Walter Lee and Nancy Ikard Clark as named insureds

in the amount of $50,000 per person.   Mr. and Mrs. Clark were the

decedent’s parents, and he was a resident of their household at

the time of the accident.   The parties stipulated to the following

relevant policy provisions:

          Nationwide Policy:
          Policyholder – Named Insured: Walter Lee and
          Nancy Ikard Clark

          UM/UIM limits: $50,000 per person/ $100,000
          per accident

          Other Insurance
          If this policy and any other auto insurance
          policy apply to the same accident, the maximum
          amount payable under all applicable policies
          for all injuries to an insured caused by an
          uninsured motor vehicle or underinsured motor
          vehicle shall be the sum of the highest limit
          of liability for this coverage under each
          policy.

          In addition, if there is other applicable
          similar insurance, we will pay only our share
          of the loss. Our share is the proportion that
          our limit of liability bears to the total of
          all applicable limits. However, any insurance
          we provide with respect to a vehicle you do
          not own shall be excess over any other
          collectible insurance.
                               -5-
          Integon policy3:
          Policyholder – Named Insured: Nelson Clark

          UM/UIM limits: $100,000 per person/ $300,000
          per accident

          OTHER INSURANCE
          If this policy and any other auto insurance
          policy issued to you apply to the same
          accident, the maximum amount payable under all
          applicable policies for all injuries caused by
          an uninsured motor vehicle under all policies
          shall not exceed the highest applicable limit
          of liability under any one policy.

          If this policy and any other auto insurance
          policy issued to you apply to the same
          accident, the maximum amount payable for
          injuries to you or a family member caused by
          an underinsured motor vehicle shall be the sum
          of the highest limit of liability for this
          coverage under each such policy.

          In addition, if there is other applicable
          similar insurance, we will pay only our share
          of the loss. Our loss is the proportion that
          our limit of liability bears to the total of
          all applicable limits. However, any insurance
          we provide with respect to a vehicle you do
          not own shall be excess over any other
          collectible insurance.

          State National policy:
          Policyholder – Named Insured: Nelson Clark

          UM/UIM limits: $50,000 per person/ $100,000
          per accident



3 The “Other Insurance” clause in the Integon policy contains the
word “loss” instead of “share” in the second sentence of the
clause. However the Integon policy defines “loss” the same way
both other policies define “share”: “the proportion that our limit
of liability bears to the total of all applicable limits.”
                                     -6-
           OTHER INSURANCE
           If this policy and any other auto insurance
           policy apply to the same accident, the maximum
           amount payable under all applicable policies
           for all injuries to an insured caused by an
           uninsured motor vehicle or underinsured motor
           vehicle shall be the sum of the highest limit
           of liability for this coverage under each
           policy.

           In addition, if there is other applicable
           similar insurance, we will pay only our share
           of the loss. Our share is the proportion that
           our limit of liability bears to the total of
           all applicable limits. However, any insurance
           we provide with respect to a vehicle you do
           not own shall be excess over any other
           collectible insurance.

    All three policies define the term “you” as:

           Throughout this policy, “you” and “your” refer
           to:

           1.   The  “named      insured”     shown     in    the
           Declarations; and

           2. The spouse    if   a    resident    of   the   same
           household.

    After reviewing the policies, the pleadings, the parties’

motions,   the   parties’   memoranda,      and   hearing    the    parties’

arguments, Judge Carl Fox granted summary judgment on behalf of

Defendants based on Defendants’ contention that their policies

should be considered primary and Plaintiff’s policy should be

considered excess.   The trial court concluded “as a matter of law

that there is no genuine issue of any material fact in this case
                                     -7-
that the underinsured motorist coverage afforded . . . on those

same claims is excess[.]”

                II. Jurisdiction & Standard of Review

     On appeal, Plaintiff asks this Court to reverse the trial

court based upon this Court’s holding in Bost.           126 N.C. App. at

52, 483 S.E.2d 458–59.

     This Court has jurisdiction to review the matter pursuant to

N.C. Gen. Stat. § 7A-27(b) (2013).         “Our standard of review of an

appeal   from   summary   judgment    is   de   novo;   such   judgment   is

appropriate only when the record shows that ‘there is no genuine

issue as to any material fact and that any party is entitled to a

judgment as a matter of law.’”       In re Will of Jones, 362 N.C. 569,

573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C.

519, 524, 649 S.E.2d 382, 385 (2007)).          “‘Under a de novo review,

the court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.”         State v. Williams, 362

N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens

of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319

(2003)).

                             III. Analysis

     Plaintiff argues that the holding in Bost requires a pro rata

distribution of the $50,000 credit supplied by the underinsured
                                  -8-
motorist Ikerd’s insurer.   Plaintiff argues that Bost requires pro

rata    distribution   because   (i)    the   three   policies’   “other

insurance” sections are mutually repugnant and (ii) claimant Clark

was a Class I insured under the three policies, which requires pro

rata distribution under Bost.     Defendants argue that the language

used in the UIM policies controls and class designation is not

relevant when multiple UIM excess clauses may be read together

harmoniously.    See Iodice v. Jones, 133 N.C. App. 76, 79 & n.3,

514 S.E.2d 291, 293 & n.3 (1999).

       For purposes of clarity, we hold that courts resolving UIM

credit/liability apportionment disputes amongst multiple providers

must make the following inquiry in deciding these cases.           First

the language used in the excess clause must be identical between

the excess clauses of the respective UIM policies, or “mutually

repugnant.”     See Sitzman v. Gov’t Employees Ins. Co., 182 N.C.

App. 259, 262–64, 641 S.E.2d 838, 840–42 (2007) (noting that

identical language is mutually repugnant, requiring that neither

is given effect, and applying the rule to non-identical excess

clauses).   If the language is not identical, the inquiry ends, as

the excess policies are not mutually repugnant, and the trial court

may apply the facial policy language to determine distribution.

Id.
                                        -9-
       If   this   first   prong   is   satisfied        and   the   policies   are

repugnant,     the   second   inquiry     is       to    determine   whether    the

respective UIM carriers are in the same class; if so, the trial

court must apportion liabilities and credits on a pro rata basis.

Bost, 126 N.C. App. at 52, 483 S.E.2d at 458–59.

       Only after considering the “class” of the claimant do we reach

the third step of the inquiry.                If separate classes exist, a

primary/excess       distinction    may       be     drawn     despite   identical

language.     Iodice, 133 N.C. App. at 79 & n.3, 514 S.E.2d at 294 &

n.3.   Such identical clauses may allow a finding of non-repugnancy

after applying the policies’ definitions, specifically relating to

ownership identified in the policy.                Id.

       Because this issue was settled in Bost and we are bound to

follow this holding, we must disagree with Defendants’ contention

that identical excess clauses as applied to claimants all situated

within the same class may be read together “harmoniously.”                  See In

re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

(“Where a panel of the Court of Appeals has decided the same issue,

albeit in a different case, a subsequent panel of the same court

is bound by that precedent, unless it has been overturned by a

higher court.”).      As such, we reverse the trial court, and remand

to the trial court for a pro rata distribution of the $50,000
                                    -10-
credit supplied by Ikerd’s insurer.4           The three tests described

above are more fully discussed hereinafter.

                  i. Mutually Repugnant Excess Clauses

     The first item in the inquiry is to determine whether or not

the respective excess clauses are identical.             Identical “excess

clauses”   are    typically    deemed    mutually   repugnant   and    neither

excess   clause   is   given   effect.      Integon   Nat’l.    Ins.   Co.   v.

Phillips, 212 N.C. App. 623, 630, 712 S.E.2d 381, 386 (2011) (“Due

to the excess clauses being identically worded, it is impossible

to determine which policy is primary, and thus the excess clauses

must be deemed mutually repugnant, with neither clause being given

effect.” (quotation marks and citation omitted)); see also James

E. Snyder, Jr., North Carolina Automobile Insurance Law § 33-5

(Supp. 2013).     Where identical excess clauses exist, the policies

are read as if the identical excess clauses were not present.

Iodice at 78, 514 S.E.2d at 293 (“Where it is impossible to



4 If Nationwide is considered “excess,” Nationwide pays the full
amount of its $50,000 liability limit under the UIM coverage,
Integon pays $66,666.67 and State National pays $33,333.33.
Integon and State National both divided the $50,000 paid by Ikerd’s
insurer and received $25,000 each.

A pro rata distribution would net Nationwide a credit of 25 percent
of its liability limit, or $12,500.      Nationwide would then be
liable for $37,500, rather than the full $50,000 of its UIM policy.
Integon would pay $75,000 and State National would pay $37,500
under a pro rata distribution.
                                   -11-
determine which policy provides primary coverage due to identical

‘excess’ clauses, ‘the clauses are deemed mutually repugnant and

neither . . . will be given effect.’” (quoting N.C. Farm Bureau

Mut. Ins. Co. v. Hilliard, 90 N.C. App. 507, 511, 369 S.E.2d 386,

388 (1988)) (alterations in original)); Onley v. Nationwide Mut.

Ins. Co., 118 N.C. App. 686, 690, 456 S.E.2d 882, 884, disc. review

denied, 341 N.C. 651, 462 S.E.2d 514 (1995).

     When   mutually   repugnant   clauses   exist,   the   multiple   UIM

carriers share both credits and liabilities pro rata, as sharing

“the liability in proportion to the coverage but not the credit in

a like manner is irrational.”       Onley, 118 N.C. App. at 691, 456

S.E.2d at 885; see also Harleysville Mut. Ins. Co. v. Nationwide

Mut. Ins. Co., 165 N.C. App. 543, 600 S.E.2d 901, 2004 WL 1610050

at *3 (2004) (unpublished) (“‘Where an insured is in the same class

under two policies and the ‘other insurance’ clauses in the

policies are mutually repugnant, the claims will be prorated.’”

(quoting Hlasnick v. Federated Mut. Ins. Co., 136 N.C. App. 320,

330, 524 S.E.2d 386, 393, aff’d on other grounds in part and disc.

review improvidently allowed in part, 353 N.C. 240, 539 S.E.2d 274

(2000))).

     The converse is also true─when policies are not identical in

form or effect, they are not mutually repugnant.            Sitzman, 182
                                -12-
N.C. App. at 264, 641 S.E.2d at 842 (noting the differences between

two policies’ excess clauses in both form and effect); see also

Hlasnick, 136 N.C. App. at 330, 524 S.E.2d at 393 (“[T]here is no

need to consider the class into which an insured falls or to

prorate coverage where, as here, the ‘other insurance’ clauses are

not mutually repugnant, but may be read together harmoniously.”).

In Sitzman, two UIM policies’ excess clauses were at issue.     The

first policy was issued by Geico to the claimant in North Carolina

and uses the standard North Carolina excess clause language used

by both Plaintiff and Defendants’ policies discussed above in

Section I supra.   182 N.C. App. at 262, 641 S.E.2d at 841.     The

second policy was issued by Harleysville in Virginia to the

claimant’s parents.   Id. at 261, 641 S.E.2d at 840.     The policy

was interpreted under Virginia law as it was issued in that state.

Id. at 263, 641 S.E.2d at 842.         The Harleysville policy also

contained an excess clause that was distinct from the standard

North Carolina excess clause:

          [T]he following priority of policies applies
          and any amount available for payment shall be
          credited   against  such   policies  in   the
          following order of priority:

               First Priority[:] The policy applicable
               to   the  vehicle   the  “insured”   was
               “occupying” at the time of the accident.
                                 -13-
              Second Priority[:] The policy applicable
              to a vehicle not involved in the accident
              under which the “insured” is a named
              insured.

              Third Priority[:] The policy applicable
              to a vehicle not involved in the accident
              under which the “insured” is other than
              a named insured.

Id. at 263, 641 S.E.2d at 841–42 (alterations in original).   This

Court explicitly noted the differences between the wording of the

Geico and Harleysville policy:

         Unlike   the   GEICO    excess   clause,   the
         Harleysville policy does not differentiate
         between policies based upon ownership of the
         vehicle in which the insured was riding at the
         time of the accident. Rather, the Harleysville
         policy differentiates between the first
         priority on one hand, and the second and third
         priorities on the other, based upon whether
         the policy is applicable to (1) the vehicle
         involved in the accident or (2) a vehicle not
         involved in the accident. The Harleysville
         policy further differentiates between the
         second and third priorities depending upon
         whether the insured is a named insured or
         other than a named insured.

         The Harleysville policy does not define the
         phrase “applicable to [the or a] vehicle.”
         GEICO argues the phrase “applicable to [the or
         a] vehicle” is synonymous with “covering [the
         or a] vehicle.” Under that interpretation, the
         vehicle referred to would be the vehicle
         listed as an insured vehicle under the policy.
         The bicycle is not listed as an insured
         vehicle under either policy. Therefore, the
         GEICO policy would have second priority
         because it is “[t]he policy [covering] a
         vehicle not involved in the accident [i.e.,
                                  -14-
          Plaintiff’s     1987   Buick]     under    which
          [Plaintiff] is a named insured.” GEICO further
          argues the Harleysville policy has third
          priority    because   it   is   “[t]he    policy
          [covering] a vehicle not involved in the
          accident     [i.e.,    Plaintiff’s      parents’
          vehicles] under which [Plaintiff] is other
          than    a    named   insured.”     Under    this
          interpretation, the GEICO policy would have
          higher priority and would therefore be primary
          under    the   Harleysville    excess    clause.
          Accordingly, the GEICO policy would be primary
          under   both   the   GEICO   and   Harleysville
          policies, and the excess clauses would not be
          mutually repugnant.

Sitzman, 182 N.C. App. at 264, 641 S.E.2d at 842 (emphasis added)

(alterations in original).       As such, the excess clauses under

consideration   were   not   identical   and   not   mutually   repugnant,

necessitating no further inquiry.

     However,   identical    policy   language   is   not   axiomatically

mutually repugnant if the excess clauses at issue do not have the

same meaning as applied to the facts of the case.        See Iodice, 133

N.C. App. at 78, 514 S.E.2d at 293 (agreeing with appellant that

the “‘other insurance’ clauses in this case, although identically

worded do not have identical meanings and are therefore not

mutually repugnant”).    In Iodice, this Court held:

          Because “you” is expressly defined as the
          named insured and spouse, the Nationwide
          “excess” clause reads: “[A]ny insurance we
          provide with respect to a vehicle [Penney]
          do[es] not own shall be excess over any other
          collectible insurance.” It follows that
                              -15-
          Nationwide’s UIM coverage is not “excess” over
          other   collectible    insurance    (and   is,
          therefore, primary), because the vehicle in
          which the accident occurred is owned by
          Penney. The GEICO “excess” clause reads:
          “[A]ny insurance we provide with respect to a
          vehicle [Iodice’s mother] do[es] not own shall
          be   excess   over   any   other   collectible
          insurance.” It follows that GEICO’s UIM
          coverage is “excess” (and is, therefore,
          secondary), because the vehicle in which the
          accident occurred is not owned by Iodice’s
          mother.   Accordingly,   Nationwide   provides
          primary UIM coverage in this case.

Id. at 78–79, 514 S.E.2d at 293 (alterations in original).

     Thus, where identically worded policy provisions existed but

the actual application of the policies negated mutual repugnancy,

this Court held that the “excess” UIM policy was not entitled to

a set-off credit.    Id.    In so holding, however, this Court

reaffirmed the class distinction discussed in Bost and considered

infra, stating that a “Class II insured may be treated differently

than a Class I insured.”   Id. at 79 n.3, 514 S.E.2d at 293 n.3.

Iodice thus stands for the proposition that identical language in

excess clauses may be read together harmoniously if a claimant is

categorized under separate “classes.”

     A subsequent case, Hlasnick, is instructive in prescribing

and applying the required three questions in this area of the law.

In Hlasnick, a husband and wife were injured in an automotive

accident caused by a negligent driver.   Id. at 321–22, 524 S.E.2d
                                  -16-
at 387–88.   The husband was driving a Dodge pick-up truck owned by

the car dealership where he worked, and was running a personal

errand while his wife was present.       Id. at 322, 524 S.E.2d at 388.

The negligent driver was underinsured, the driver’s policy carrier

tendered its limits, and the husband and wife sought recovery under

their UIM policies.    Id.   The husband’s employer had UIM coverage,

while both husband and wife each had personal insurance policies

that carried UIM coverage.     Id.

     This Court held the policies were not mutually repugnant

because the “term ‘you’ in the different policies            refers   to

different individuals; and the ‘other insurance’ provisions in the

policies are not identical,” meaning the policies could thus be

read together harmoniously.       Id. at 330, 524 S.E.2d at 392–93

(emphasis added).     This Court also noted the claimants fit within

separate classes, but held that even had the claimants been within

the same class under both UIM policies, the language of the

respective excess clauses was not mutually repugnant.       Id. at 330,

524 S.E.2d at 392 (“By contrast, plaintiffs here are second-class

insureds under Federated Mutual’s policy, but are first-class

insureds under State Farm’s policy[.]”).         This Court contrasted

Hlasnick with Smith v. Nationwide Mutual Ins. Co., 328 N.C. 139,

400 S.E.2d 44 (1991), where “there were two policies. The insureds
                                     -17-
were in the same class under both policies, the term ‘you’ in each

policy referred to the same individual, and the policies contained

identical ‘other insurance’ provisions.”            Hlasnick, 136 N.C. App.

at 330, 524 S.E.2d at 392.

     Here,   the   language    contained      in   the   “excess    clause”   is

identical in all three policies.            Id. at 330, 524 S.E.2d at 392–

93; see also Phillips, 212 N.C. App. at 630, 712 S.E.2d at 386

(noting   where    identical    language       exists,    a    presumption    of

repugnancy exists).       Thus, the first part of the inquiry is

satisfied, however our work is not finished.                  As Iodice noted,

identically-worded policies may be read together “harmoniously,”

but that reading is predicated on whether the claimant falls within

different “classes” between the respective policies.                  133 N.C.

App. at 79 n.3, 514 S.E.2d at 293 n.3; Hlasnick, 136 N.C. App. at

330, 524 S.E.2d at 393.        Thus, whether we may reach the third

portion of our inquiry (whether the identical excess clauses may

be read harmoniously) depends on the classes of the UIM providers,

as   announced     in   Bost   and    affirmed      in    Iodice,    Hlasnick,

Harleysville, Sitzman, and Benton v. Hanford, 195 N.C. App. 88,

92, 671 S.E.2d 31, 34 (2009).
                                -18-
                  ii. Class Recognition under Bost

     This Court in Bost noted a distinction with how liabilities

and credits are apportioned according to the class of the “persons

insured:”

            [g]enerally, the first class of “persons
            insured” are the “named insured and, while
            resident of the same household, the spouse of
            any named insured and relatives of either,
            while in a motor vehicle or otherwise.” All
            persons in the first class are treated the
            same for insurance purposes. When “excess”
            clauses in several policies are identical, the
            clauses are deemed mutually repugnant and
            neither excess clause will be given effect,
            leaving the insured’s claim to be pro rated
            between the separate policies according to
            their respective limits.

126 N.C. App. at 52, 483 S.E.2d at 458–59 (internal citations

omitted).    Bost identified and categorized these “classes” in the

relevant statute.    Id. at 52, 483 S.E.2d at 458; N.C. Gen. Stat.

§ 20-279.21 (2013) (“‘[P]ersons insured’ means the named insured

and while resident of the same household, the spouse of any named

insured and relatives of either, while in a motor vehicle or

otherwise[.]”).     Despite efforts to overturn Bost, the class

distinction drawn in Bost remains today.      Defendant Appellant’s

New Brief, Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co.,

359 N.C. 421, 611 S.E.2d 832 (2005) No. 444PA04, 2004 WL 3120959

at *23–24 (“Accordingly, Bost was decided incorrectly and should
                               -19-
be overruled. Because the Court of Appeals based its decision in

the present case on Bost, the Court of Appeals decided the present

case incorrectly as well, and its decision in the present case

should be reversed.”).

     Defendants point to decisions decided subsequent to Bost, but

none of these cases overrule Bost and all involve either excess

clauses that are not mutually repugnant or distinctions in classes

of underinsured motorist policies.    See Sitzman, 182 N.C. App. at

265, 267, 641 S.E.2d at 843, 844 (finding that the two UIM policies

were not mutually repugnant due to different wording and Virginia’s

choice not to recognize North Carolina’s class distinction (citing

Dairyland Ins. Co. v. Sylva, 409 S.E.2d 127, 128 (Va. 1991));

Harleysville, 165 N.C. App. 543, 600 S.E.2d 901, 2004 WL 1610050

at *3 (“While Nationwide points to two decisions by this Court

subsequent to Bost as supporting its position, each of those cases

recognizes that Bost controls when, as here, the injured party is

a Class I insured under each of the policies at issue.”); Hlasnick,

136 N.C. App. at 330, 524 S.E.2d at 392-93 (“[P]laintiffs here are

second-class insureds under Federated Mutual’s policy, but are

first-class insureds under State Farm’s policy; the term ‘you’ in

the different policies refers to different individuals; and the

‘other insurance’ provisions in the policies are not identical.”);
                                  -20-
Iodice, 133 N.C. App. at 79 n.3, 514 S.E.2d at 293 n.3 (holding

Bost was distinguishable because the plaintiff in Bost was “a Class

I insured under both policies” and stating a “Class II insured may

be treated differently than a Class I insured”).

      The one case addressing this issue that does not mention the

Class I/Class II distinction is Benton, and the facts of that case

include a Class I UIM provider and a Class II UIM provider, making

the excess and primary distinction this Court drew appropriate.

195 N.C. App. at 97, 671 S.E.2d at 36.       In Benton, the claimant

was injured while a passenger-guest in a vehicle that struck a

tree.    Id. at 90, 671 S.E.2d at 32.       Nationwide provided UIM

coverage that applied to the vehicle and its occupants involved in

the accident, a vehicle owned by the operator.        Id. at 97, 671

S.E.2d at 36.     The claimant also received UIM coverage as a member

of his mother’s household under a Progressive insurance policy.

Id.     As such, the claimant was a Class II insured under the

Nationwide policy (as a passenger-guest) and a Class I insured

under his mother’s Progressive policy (as a resident-relative).

Because the classes of the UIM policies were different, this Court

could conduct the analysis laid forth in Iodice to find the

Nationwide policy was “primary” and the Progressive policy was

“excess.”   Id.
                               -21-
     The facts of Bost were also similar to the present case:

          Carrie Bost was not a named insured under
          Larry Bost’s insurance policy with Farm
          Bureau. Both Farm Bureau and defendant
          Allstate insured Carrie Bost as a first class
          insured because she was a relative and
          resident of the households of both Larry and
          Cara   Bost.   Both   policies   have   “Other
          Insurance” provisions which are identical, and
          therefore, the provisions nullify each other,
          leaving Farm Bureau and defendant Allstate to
          share the Ezzelle settlement on a pro rata
          basis.

126 N.C. App. at 52, 483 S.E.2d at 459.   Here, the claimant Clark

was a Class I insured under all three UIM policies and the three

policies all contained identical language.    Clark also held two

policies (the Integon policy and the State National Policy) as the

named policyholder and was a relative resident of his parents’

household, making him a Class I beneficiary of their Nationwide

UIM policy.   Under Bost, the credit paid by Ikerd’s insurer must

be distributed pro rata amongst Plaintiff and Defendants.   Because

the policies are (i) identical and (ii) claimant was a member of

the same class within the excess clause of all three UIM policies,

we cannot reach the third consideration of whether the identical

language of the excess clause, as applied, may be read harmoniously

amongst the excess clauses.   We thus reverse the trial court and

remand for a pro rata distribution of the credit.
                                -22-
                           IV. Conclusion

     Because (i) all three policies were mutually repugnant and

(ii) the claimant was a Class I insured under all three policies,

pro rata distribution of the $50,000 credit provided by Ikerd is

required under Bost.   For the foregoing reasons, the trial court’s

granting of summary judgment for Defendants is

     REVERSED AND REMANDED FOR ENTRY OF SUMMARY JUDGMENT IN

     FAVOR OF PLAINTIFF.

     Judges ROBERT C. HUNTER and CALABRIA concur.
