Sauls v. Charlotte Liberty Mut. Ins. Co.

303 S.E.2d 358 (1983)

Maude SAULS v. CHARLOTTE LIBERTY MUTUAL INSURANCE CO.

No. 828DC601.

Court of Appeals of North Carolina.

June 7, 1983.

*360 Duke & Brown by John E. Duke, and Braswell & Taylor by Ronald C. Braswell, Goldsboro, for plaintiff-appellant.

Barnes, Braswell & Haithcock by Tom Barwick, Goldsboro, for defendant-appellee.

ARNOLD, Judge.

Summary judgment under G.S. 1A-1, Rule 56(c) is proper when there is "no genuine issue as to any material fact...." It is a drastic remedy ... [that] "must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). This remedy "does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists." Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980) (emphasis in original). Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Spector Credit Union v. Smith, 45 N.C.App. 432, 437, 263 S.E.2d 319, 322 (1980).

In Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897, reh'g denied, 281 N.C. 516 (1972), the court defined two terms that are determinative on a summary judgment question.

An issue 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.

280 N.C. at 518, 186 S.E.2d at 901 (emphasis added). In addition to no issue of fact being present, to grant summary judgment a court must find "that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law." 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d ed., Phillips Supp.1970). See also, W. Shuford, N.C. Civil Practice and Procedure § 56-7 (2d ed. 1981).

Through the pleadings and admissions, the plaintiff has established the execution and delivery by the defendant of a life insurance policy issued to the deceased with plaintiff as beneficiary, the death of the insured, and payment of premiums. Nothing else appearing, plaintiff has established a prima facie case of her right to the insurance proceeds. Tolbert v. Insurance Co., 236 N.C. 416, 72 S.E.2d 915 (1952); Willetts v. Insurance Co., 45 N.C.App. 424, 263 S.E.2d 300, disc. rev. denied, 300 N.C. 562, 270 S.E.2d 116 (1980).

After the plaintiff made a prima facie case, the burden of proof shifted to the defendant insurer to establish the misrepresentations relied on by it to avoid the policy. Rhinehardt v. Insurance Co., 254 N.C. 671, 119 S.E.2d 614 (1961). An insurer's duty under an insurance contract may be avoided by a showing that the insured made representations in his insurance application which were material and false. Tolbert, 236 N.C. at 418, 72 S.E. at 917; Willetts, 45 N.C.App. at 428, 263 S.E.2d at 304; see G.S. 58-30.

*361 A representation in a life insurance application is material if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract and accepting the risk. Carroll v. Insurance Co., 227 N.C. 456, 42 S.E.2d 607 (1947). In an application for a life insurance policy, written questions and answers relating to health are deemed material as a matter of law. Rhinehardt, 254 N.C. at 673, 119 S.E.2d at 616 (emphasis in original).

Because the plaintiff's affidavit raises a question of fact, we reverse the entry of summary judgment. A jury should have been allowed to decide who filled out the blanks on the 1978 applications. The plaintiff's contention that no questions about health were asked by Nasekos when the 1978 applications were filled out raises a question about who answered "no" to the relevant question. We note that the record contains no affidavit from Nasekos on this point.

We recognize the principle that a person is deemed to have read and understood what he signs. See, e.g., Gas House, Inc. v. Southern Bell Tel. & Tel. Co., 289 N.C. 175, 180, 221 S.E.2d 499, 503 (1976). What is apparently the deceased's signature appears on the 1978 applications. But this case presents an issue of fact that cannot be resolved on the evidence that is before us.

As a result, we reverse entry of summary judgment for the defendant and remand for a trial.

Reversed and remanded.

VAUGHN, C.J., and HEDRICK, J., concur.