                               NO. COA13-1266

                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     6 May 2014


INTEGON NATIONAL INSURANCE
COMPANY,
     Plaintiff,

    v.                                      Forsyth County
                                            No. 12 CVS 6350
HELPING HANDS SPECIALIZED
TRANSPORT, INC. and LESLIE TAYLOR,
Executor of the Estate of MARY
LEWIS FAGGART SMITH,
     Defendants.


    Appeal by plaintiff from order entered 12 August 2013 by

Judge A. Moses Massey in Forsyth County Superior Court.                  Heard

in the Court of Appeals 7 April 2014.


    Bennett & Guthrie, P.L.L.C., by Roberta King Latham, for
    plaintiff-appellant.

    Mills & Levine, by Michael J. Greer, for defendant-appellee
    Leslie Taylor.


    MARTIN, Chief Judge.


    Plaintiff      Integon   National      Insurance   Company   filed   this

action   seeking   a    declaration   of    its   obligations    to   provide

coverage pursuant to a business automobile liability insurance

policy issued to defendant Helping Hands Specialized Transport,

Inc. for the alleged personal injuries and death of Mary Lewis
                                             -2-
Faggart Smith which arose out of an incident on 24 May 2010.

Defendant Leslie Taylor is Ms. Smith’s niece and the executor of

Ms.   Smith’s     estate.           Ms.    Taylor,      through     counsel,     accepted

service     of   process      and    filed       an   answer.       Helping    Hands    was

served with process, but failed to answer or otherwise respond

to the complaint, and its default was entered by the Clerk of

Superior Court.         After discovery, both Integon and Ms. Taylor

filed motions for summary judgment.

      The    materials        before       the     trial    court     at   the    summary

judgment hearing tended to show that at the time of Ms. Smith’s

injury, Helping Hands had a business automobile insurance policy

with Integon which insured against liability for damages “caused

by an accident and resulting from the ownership, maintenance or

use of a covered” vehicle.

      The materials also disclosed that prior to 24 May 2010, Ms.

Smith had been hospitalized at Carolinas Medical Center and her

treating physician had determined that she was nearing the end

of her life and recommended to Ms. Taylor that she arrange for

palliative       care   for    her        aunt.       Ms.   Taylor    contracted       with

Hospice of Cabarrus County to provide hospice care for Ms. Smith

at Ms. Smith’s home.                Hospice arranged for Helping Hands to

transport Ms. Smith from the hospital to her home on May 24th.
                                        -3-
A Helping Hands handicapped accessible van, driven by Helping

Hands driver Robert Brennan, went to the hospital on that date.

Ms. Smith, who was seated in a Geri-chair, was loaded into the

van and Mr. Brennan transported her safely to her residence,

where Ms. Taylor was waiting.

    There was also evidence tending to show that prior to the

van’s    arrival,    Ms.    Taylor    had     received    two     telephone    calls

asking whether a ramp would be needed to negotiate the steps to

Ms. Smith’s home, and she responded that a ramp would be needed.

The record is unclear as to whether these inquiries were made by

Helping Hands or Hospice.             Nevertheless, when the van arrived

with Ms. Smith, there was no ramp.

    Mr. Brennan           used the van’s hydraulic lift to lower Ms.

Smith,   in   the    Geri-chair,      from    the   van   to    the    driveway   and

removed the Geri-chair from the van’s lift.                    Shortly thereafter,

it began to rain.         Mr. Brennan rolled Ms. Smith up a sidewalk to

the house’s front steps.            Although the Geri-chair had wheels, it

was not appropriate for transporting Ms. Smith up the steps and

into the house, so Mr. Brennan asked Ms. Taylor if she had a

wheelchair.         Ms.    Taylor    went    into   the   house       and   rolled   a

wheelchair onto the porch and Mr. Brennan carried it down the

steps.     Ms. Smith was transferred from the Geri-chair to the
                                        -4-
wheelchair      without   sustaining     any    injury.      Mr.    Brennan   then

proceeded to ascend the steps backwards and pull the wheelchair,

facing backwards, up the steps.               After going up the first step,

Ms. Smith started sliding out of the wheelchair; Ms. Taylor

grabbed one of her legs to keep her from sliding out of the

chair, and Mr. Brennan put his arm around Ms. Smith and pulled

the wheelchair up the second step.              Once they were on the porch,

Ms. Taylor discovered that Ms. Smith had sustained a gash on her

leg.     Ms. Smith passed away two days later.               Neither Ms. Taylor

nor Mr. Brennan recall whether the van’s engine was running

while Ms. Smith was unloaded from the van, transferred to the

wheelchair, and taken up the porch steps.                 The series of events

from the time Ms. Smith arrived at her home until the injury

lasted approximately five minutes.

       Ms. Taylor has filed an action seeking damages in Cabarrus

County Superior Court entitled Leslie Taylor, Executor of the

Estate    of    Mary   Lewis   Faggart    Smith     v.    Hospice   of    Cabarrus

County, Inc. and Helping Hands Specialized Transport, Inc., 12

CVS 1741, asserting that the alleged negligence, on the part of

the    named     defendants,   proximately        resulted     in   Ms.    Smith’s

injuries and death.

       The     trial   court   denied     Integon’s       motion    for   summary
                                            -5-
judgment and granted Ms. Taylor’s motion for summary judgment,

holding      that    Integon’s    policy      provides   coverage        in   the    full

amount of the policy limits to Helping Hands for its liability,

if    any,    with   respect     to   the    incident,      and   that    Integon     is

obligated to provide a defense to Helping Hands for the claim.

Integon appeals.

                          _________________________

       “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)).          A question of fact

              is material if the facts alleged would
              constitute a legal defense, or would affect
              the result of the action, or if its
              resolution would prevent the party against
              whom it is resolved from prevailing in the
              action.   The issue is denominated “genuine”
              if it may be maintained by substantial
              evidence.

Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d

897, 901 (1972).

       In this case, while there may be genuine issues of fact

which are material to the issues of negligence and the liability
                                      -6-
of Helping Hands for the injuries and death of Ms. Smith, none

of those factual issues are material to the issue of whether

Integon’s policy of insurance provides coverage to Helping Hands

for    any     such   liability.         Thus,     summary        judgment    is    an

appropriate      procedure   for   the     resolution    of    this    declaratory

judgment action. See Pine Knoll Ass’n v. Cardon, 126 N.C. App.

155, 158, 484 S.E.2d 446, 448, disc. review denied, 347 N.C.

138, 492 S.E.2d 26 (1997).

       While     Integon’s   policy      insured      Helping       Hands     against

liability for damages “caused by an accident and resulting from

the    ownership,     maintenance     or    use    of   a     covered”       vehicle,

N.C.G.S.     §   20-279.21   requires       that   an   automobile          liability

insurance policy provide coverage for damages “arising out of

the ownership, maintenance or use of” the covered vehicle.                         N.C.

Gen.    Stat.     §   20-279.21(b)(2)       (2013).         Our     case     law   has

established that this statute is written into every automobile

liability policy.       Nationwide Mut. Ins. Co. v. Chantos, 293 N.C.

431, 441, 238 S.E.2d 597, 604 (1977), appeal after remand, 298

N.C. 246, 258 S.E.2d 334 (1979).

       In Fidelity & Casualty Co. of New York v. North Carolina

Farm Bureau Mutual Insurance Co., 16 N.C. App. 194, 198–99, 192

S.E.2d 113, 117–18, cert. denied, 282 N.C. 425, 192 S.E.2d 840
                               -7-
(1972), this Court defined the meaning of the language “arising

out of the ownership, maintenance and use” of a vehicle as used

in an automobile liability insurance policy.   The Court stated:

         The policy provision in question speaks of
         liability “arising out of the ownership,
         maintenance or use” of the truck. The words
         “arising out of” are not words of narrow and
         specific limitation but are broad, general,
         and comprehensive terms effecting broad
         coverage.   They are intended to, and do,
         afford protection to the insured against
         liability imposed upon him for all damages
         caused by acts done in connection with or
         arising out of such use. They are words of
         much broader significance than “caused by.”
         They are ordinarily understood to mean
         “originating from,” “having its origin in,”
         “growing out of,” or “flowing from,” or in
         short, “incident to,” or “having connection
         with” the use of the automobile. The act of
         loading and unloading a truck is not an act
         separate and independent of the use and is
         an act necessary to accomplish the purpose
         of using the truck.

         The parties do not, however, contemplate a
         general liability insurance contract. There
         must be a causal connection between the use
         and the injury.     This causal connection may
         be shown to be an injury which is the
         natural    and     reasonable    incident    or
         consequence of the use, though not foreseen
         or expected, but the injury cannot be said
         to arise out of the use of an automobile if
         it was directly caused by some independent
         act     or     intervening     cause     wholly
         disassociated from, independent of, and
         remote from the use of the automobile.

    Id. (emphasis added) (citations omitted).
                                           -8-
      Citing the foregoing, the North Carolina Supreme Court, in

State Capital Insurance Co. v. Nationwide Insurance Co., 318

N.C. 534, 539–40, 350 S.E.2d 66, 69 (1986) stated:                               “In short,

the test for determining whether an automobile liability policy

provides coverage for an accident is not whether the automobile

was a proximate cause of the accident.                          Instead, the test is

whether there is a causal connection between the use of the

automobile and the accident.”

      In State Capital, two men traveled together in a pickup

truck to survey some hunting land.                      Id. at 536, 350 S.E.2d at

67.     The truck contained three guns, a rifle and shotgun in the

gun rack and another rifle on the floor behind the seat.                                  Id.

The men stopped at a tract of land and got out of the truck to

survey the area.            Id.    Thereafter, the passenger returned to the

truck    and,     a   short       time   later,     the   driver      saw    a    deer   and

returned to the truck to retrieve his rifle.                          Id.     As he moved

the seat and reached for the rifle, it discharged, striking the

passenger.        Id. at 536, 350 S.E.2d at 68.                    The Supreme Court

held that a causal connection existed between the use of the

vehicle     and       the     injury      to      the     passenger         because      “the

transportation        and     unloading        of   firearms       are      ordinary      and

customary    uses      of     a   motor   vehicle”        and   the    accident       was   a
                                         -9-
reasonable consequence of such use.                  Id. at 540, 350 S.E.2d at

70.

      Since the decision in State Capital, this Court has been

liberal in its application of the principle that a motor vehicle

liability insurance policy will provide coverage if an injury is

caused   by    an    activity     that     is    necessarily       or     ordinarily

associated with the use of the insured vehicle.                     In Nationwide

Mutual   Insurance    Co.    v.   Davis,       118   N.C.   App.   494,    498,   455

S.E.2d 892, 895, disc. review denied, 341 N.C. 420, 461 S.E.2d

759 (1995), this Court held that an automobile liability policy

provided coverage for injuries to a child who was struck by

another motor vehicle after getting out of the insured vehicle,

driven by her grandmother, and crossing a roadway to go to a

store.        The    Court      reasoned        that    the    grandmother        was

“purposefully using” the insured vehicle to go to the store, so

that the vehicle “was instrumental in the trip” to the store,

and that because the grandmother had parked the van where the

child had to cross a roadway to get to the store, there was a

causal connection between its use and the child’s injury.                     Id.

      Also, in Integon National Insurance Co. v. Ward ex rel.

Perry, 184 N.C. App. 532, 535, 646 S.E.2d 395, 397 (2007), this

Court held that an automobile liability policy provided coverage
                                  -10-
to a minor child who had accompanied the owner of the insured

vehicle to an automobile repair shop.        While the insured vehicle

was undergoing repairs, the child was struck by another vehicle

in the shop.     Id.   This Court relied on State Capital and Davis

to hold    that because the insured driver, accompanied by the

child, used the insured vehicle to go to the repair shop so that

the vehicle could be repaired, a sufficient causal connection

existed between the vehicle’s use and the child’s injuries to

require coverage for the child’s injuries.          Id. at 534–35, 646

S.E.2d at 397.

    In the present case, the insured vehicle was intended for

use, on the date of the occurrence of Ms. Smith’s injury, to

transport her from the hospital to her residence for palliative

care.     Because she was unable to ambulate, application of the

logic contained in Davis and Ward leads to the inference that

the use of the insured van included moving Ms. Smith into her

residence as a part of the transport service.              Since we are

unable to draw any meaningful distinction between the Davis and

Ward facts and the facts of the instant case, and even though we

might believe that the extension of coverage in those cases goes

beyond    the   common-sense   application   of   the   principles   of   a

causal connection, we are bound to follow them and hold that
                                 -11-
there is a sufficient “causal connection” between the van’s use

and Ms. Smith’s injury requiring Integon’s policy to provide

coverage.1    Our decision is not to be construed as an indication

that we express any opinion as to the liability of any party to

the underlying civil action.

     Finally, plaintiff argues that after the trial court found

that the insurance policy covered Ms. Smith’s injury, the trial

court should have reformed the policy to require payment of only

the statutorily mandated minimum coverage amount.           We do not

reach this argument.

     North Carolina Rule of Appellate Procedure 10 requires:

             In order to preserve an issue for appellate
             review, a party must have presented to the
             trial court a timely request, objection, or
             motion, stating the specific grounds for the
             ruling the party desired the court to make
             if the specific grounds were not apparent
             from the context.   It is also necessary for
             the complaining party to obtain a ruling
             upon the party’s request, objection, or
             motion.

N.C.R. App. P. 10(a)(1).

     Integon’s     complaint   did   not   seek   reformation   of   the



1
  Our Supreme Court has stated: “While we recognize that a panel
of the Court of Appeals may disagree with . . . an opinion by a
prior panel and may duly note its disagreement . . . in its
opinion, the panel is bound by that prior decision until it is
overturned by a higher court.”   State v. Jones, 358 N.C. 473,
487, 598 S.E.2d 125, 134 (2004).
                                                 -12-
insurance contract, only a declaration that its policy provided

no coverage to Helping Hands for Ms. Smith’s injuries.                                  Nothing

in   the   record          before   us      shows       affirmatively       that    plaintiff

argued     reformation         of     the        policy    before     the       trial    court.

Therefore, we will not review this argument because it was not

properly preserved for appeal.

       Also, to the extent that plaintiff asserts the reformation

argument        is   part     of    the     declaratory        judgment         action,       that

argument fails.             “The purpose of the Declaratory Judgment Act

is, to settle and afford relief from uncertainty and insecurity

with   respect        to    rights,      status,        and   other   legal       relations.”

Nationwide Mut. Ins. Co. v. Roberts, 261 N.C. 285, 287, 134

S.E.2d     654,      657     (1964)      (internal        quotation      marks      omitted).

While the Declaratory Judgment Act should be liberally construed

the Act applies “only when the pleadings and evidence disclose

the existence of a genuine controversy between the parties to

the action, arising out of conflicting contentions as to their

respective       legal      rights    and        liabilities     under      a    deed,       will,

contract, statute, ordinance, or franchise.”                            Id. at 287, 134

S.E.2d     at    656–57.           Thus,     a    declaratory       judgment       action      is

appropriate          when    it     will     “alleviat[e]        uncertainty            in    the

interpretation of [a] written instrument[].”                          Danny’s Towing 2,
                                      -13-
Inc. v. N.C. Dep’t of Crime Control & Pub. Safety, 213 N.C. App.

375, 382, 715 S.E.2d 176, 181 (2011).               However, our courts have

held that a declaratory judgment action is inappropriate when

used    as   “a     vehicle     for   the    nullification       of     [written]

instruments.”        Farthing    v.   Farthing,     235   N.C.   634,    635,    70

S.E.2d 664, 665 (1952).

       While none of the previously cited cases directly address

plaintiff’s argument, they do provide a framework for when a

declaratory judgment action is appropriate.                Plaintiff seems to

assert that the trial court should have reformed the terms of

the    automobile    liability    policy     because   the   language     of    the

policy was intended to apply to a narrower scope of causation

than N.C.G.S. § 20-279.21, and therefore, plaintiff should have

to pay only the statutorily mandated minimum coverage and not

the minimum coverage stated in the policy.                Plaintiff’s argument

asserts that this Court should change the terms of the policy

based on the interaction between the language of the parties’

agreement    and     the      requirements     of    statutory    law.          The

Declaratory Judgment Act, however, applies to the interpretation

of written instruments.           Therefore, we find that this type of

determination is beyond the scope of the Declaratory Judgment

Act.
                         -14-
For the reasons stated above we affirm.

Affirmed.

Judges McGEE and CALABRIA concur.
