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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA11-559 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. ERIE INSURANCE COMPANY and ERIE INSURANCE EXCHANGE, Defendants-Appellees. Wake County No. 10 CVS 4043

Appeal by Plaintiff from order entered 18 February 2011 by Judge Carl R. Fox in Superior Court, Wake County. Court of Appeals 25 October 2011. The Law Office of Allen Mills, PLLC, by Allen Mills, for Plaintiff-Appellant. Burton & Sue, LLP, Defendants-Appellees. McGEE, Judge. A truck operated by Fansler Grading, Inc. (Fansler) was travelling in Davidson County on 7 October 2006 when debris dislodged from the back of the truck and fell onto the roadway. The drivers of two separate vehicles (the drivers) wrecked their vehicles (the accident) when they attempted to avoid the falling by Stephanie W. Anderson, for Heard in the

-2debris. Nationwide Mutual Insurance Company (Plaintiff) was the Erie Insurance Company and/or Erie provided a policy of motor

insurer for both drivers. Insurance Exchange

(Defendants)

vehicle liability coverage to Fansler that was in effect at the time of the accident. Plaintiff filed an action against Fansler on 17 May 2007 that involved subrogation claims on behalf of the drivers for personal injuries and property damage. Defendants denied

liability coverage to Fansler for the accident, did not defend in the 17 May 2007 action, and were not made parties to that action. Plaintiff prevailed against Fansler in the 17 May 2007

action, and judgment was entered against Fansler on 9 November 2009. Fansler failed to pay Plaintiff as ordered in the 9

November 2009 judgment, and Plaintiff filed the present action on 4 March 2010, seeking a declaratory judgment that Defendants were liable for the 9 November 2009 judgment rendered against Fansler. Defendants filed a motion to dismiss and answer on 12

April 2010, arguing, inter alia, that Plaintiff had failed to state a claim pursuant to N.C. Gen. Stat.

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