Marshburn v. Associated Indem. Corp.

353 S.E.2d 123 (1987)

James H. MARSHBURN, and wife, Virginia T. Marshburn v. ASSOCIATED INDEMNITY CORPORATION.

No. 864SC743.

Court of Appeals of North Carolina.

February 17, 1987.

*125 Jeffrey S. Miller, Jacksonville, for plaintiff appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Ronald C. Dilthey and Reid Russell, Raleigh, for defendant appellee.

MARTIN, Judge.

The primary question presented by the parties to this appeal is whether plaintiffs' action to recover additional damages allegedly caused by the lightning is barred because it was not brought within the time provided by the insurance policy and by the applicable statute of limitations. We conclude that the action is barred and, for the reasons hereinafter stated, affirm the order of the trial court granting summary judgment for defendant.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The burden of establishing the lack of any triable issue of material fact is on the party moving for summary judgment. Texaco, Inc. v. Creel, 310 N.C. 695, 314 S.E.2d 506 (1984). When a defendant has properly pleaded the applicable statute of limitations, however, the burden is on the plaintiff to show that the action was instituted within the requisite period after accrual of the cause of action. Little v. Rose, 285 N.C. 724, 208 S.E.2d 666 (1974). In ruling on a motion for summary judgment, the trial court must carefully scrutinize the moving party's papers and resolve all inferences against him. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

Generally, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law *126 and fact. Ports Authority v. Lloyd A. Fry Roofing Co., 294 N.C. 73, 240 S.E.2d 345 (1978). When the statute of limitations is properly pleaded and the facts of the case are not disputed resolution of the question becomes a matter of law and summary judgment may be appropriate. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985).

Plaintiffs first contend that their claim for damages is not barred by either the time limitation provided for in the insurance policy or by the three year statute of limitations. We conclude that the action is barred by both the contractual limitation and the statute of limitations.

The pertinent provision of the insurance policy provides that "[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within three years next after inception of the loss." The foregoing provision complies with the "Standard Fire Insurance Policy for North Carolina" prescribed by G.S. 58-176 and is a valid contractual limitation binding upon and enforceable between the parties. Failure to bring an action on the policy within the specified period bars any recovery unless the contractual limitation is waived by the insurer. Avis v. Hartford Fire Ins. Co., 283 N.C. 142, 195 S.E.2d 545 (1973).

Our Supreme Court has construed the word "inception," when used as in this case, as follows:

In this connection the word `inception' as defined by Webster means `act or process of beginning; commencement, initiation.' Hence as used above `inception' necessarily means that the beginning, the commencement, the initiation of the loss was that caused by fire.

Boyd v. Bankers & Shippers Ins. Co., 245 N.C. 503, 509, 96 S.E.2d 703, 707 (1957). With respect to the term "inception of the loss," the Court has stated:

The provision contained in property insurance policies requiring action to be instituted within `twelve months next after inception of the loss' has been construed by the majority of jurisdictions to mean that the policy limitation runs from the date of the occurrence of the destructive event giving rise to the claim of liability against the insurer. (citations omitted).

Avis, supra 283 N.C. at 151, 195 S.E.2d at 550.

We therefore hold, in accord with what appears to be the majority view, that the phrase "inception of the loss," when used in a policy of insurance as in the present case, means that the policy limitation period runs from the date of the occurrence of the event out of which the claim for recovery arose. Annot., 24 A.L.R.3d 1007, 1059 (1969 & 1986 Supp.); 18A Couch on Insurance 2d § 75:88 (Rev. ed. 1983). See, e.g., Closser v. Penn Mut. Fire Ins. Co., 457 A.2d 1081 (Del.1983); Gremillion v. Travelers Indemnity Co., 256 La. 974, 240 So. 2d 727 (1970); Margulies v. Quaker City Fire & Marine Ins. Co., 276 App.Div. 695, 97 N.Y.S.2d 100 (1950). A claim filed after the contractual time limitation has expired is barred, regardless of its merit, unless the insurer, by its conduct, waives or is estopped from relying upon the limitation provision of the policy. Meekins v. Aetna Ins. Co., 231 N.C. 452, 57 S.E.2d 777 (1950). The insured's failure or inability to discover damage resulting from the insured-against casualty until after the contractual limitations period has run is immaterial and does not operate to toll or restart the limitations period. See, Sager Glove Corp. v. Aetna Ins. Co., 317 F.2d 439 (7th Cir.), cert. denied, 375 U.S. 921, 84 S. Ct. 266, 11 L. Ed. 2d 165 (1963); Thames Realty Corp. v. Massachusetts Fire & Marine Ins. Co., 16 Misc.2d 747, 184 N.Y.S.2d 170 (1959).

In the present case, it is undisputed that damage allegedly resulting from the 21 July 1979 lightning strike constitutes the basis of plaintiffs' claim under the policy of insurance. The "inception" of plaintiffs' loss, therefore, occurred on 21 July 1979 and, under the terms of the policy, any suit or action on claims for damage must have *127 been commenced within three years of that date. Thus, in order to recover for damages caused by the lightning, plaintiffs were required by the policy to file suit on or before 21 July 1982. Plaintiffs' discovery of additional damage allegedly resulting from the lightning strike did not occur until 2 September 1982, approximately six weeks after the limitation period had already expired. Their suit to recover for those damages was instituted 21 February 1985, more than five years after the inception of their loss. Plaintiffs' action was therefore barred by operation of the policy limitation provision and defendant was entitled to summary judgment as a matter of law.

Plaintiffs contend, however, that the contractual limitations provision does not govern the disposition of their claim because of the nature of the loss they suffered. Rather, they assert that the applicable period of limitation is that provided for by G.S. 1-52(12) and G.S. 1-52(16). They argue that under those provisions, their cause of action against defendant did not accrue until the discovery of the additional damages on 2 September 1982 and that this suit, filed 21 February 1985, was properly instituted within three years of that accrual date.

G.S. 1-52 prescribes a three year period for the commencement of an action:

(12) Upon a claim for loss covered by an insurance policy which is subject to the three-year limitation contained in lines 158 through 161 of the Standard Fire Insurance Policy for North Carolina, G.S. 58-176(c).

Another subsection of the same statute provides:

(16) Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

Plaintiffs argue that these provisions indicate that "the only possible legislative interest in enacting G.S. § 1-52(12) was to make it clear that G.S. § 1-52(16) governed the determination of when a claim on the policy accrued." They assert that in cases such as this one, where damage does not become apparent until a period of time has passed, the accrual provisions of G.S. 1-52(16) must be read into the policy limitation provision so that the limitations period does not begin to run until the damage is, or reasonably should be, discovered. We disagree.

G.S. 1-52(12) came before the General Assembly as "An act to insert the three-year limitation contained in the standard fire insurance policy into the list of three-year limitations contained in G.S. 1-52" and became effective 1 January 1972. 1971 Sess.Laws, c. 939. It is clear, then, that by enacting G.S. 1-52(12), the General Assembly intended only to include the standard fire insurance policy limitation period in the comprehensive list of actions which are generally subject to three-year periods of limitation and to provide a cross-reference between general statutory periods of limitation contained in G.S. 1-52, and the more specific limitation provisions of the Standard Fire Insurance Policy for North Carolina set out in G.S. 58-176(c).

G.S. 1-52(16) became effective 1 October 1979. 1979 Sess.Laws, c. 654, s. 3. Its enactment was wholly independent of the provisions of G.S. 1-52(12). The language of the statute does not require that G.S. 1-52(12) be applied in conjunction with or subject to the provisions of G.S. 1-52(16) and we decline to read such a requirement into the language of the statute without any clear authority for doing so. Moreover, G.S. 1-52(16) provides, by its own express terms, that it is to be applied "unless otherwise provided by statute." In our view, the Standard Fire Insurance Policy limitation provision, contained in G.S. 1-52(12) and G.S. 58-176(c) and reproduced *128 in plaintiffs' policy of homeowners' insurance, constitutes a limitation period "otherwise provided by statute" which precludes the applicability of G.S. 1-52(16) to the present case.

However, even assuming, arguendo, that the provisions of G.S. 1-52(16) apply to the facts of the present case, plaintiffs' action was still filed after the limitations period had expired. In Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C.App. 505, 317 S.E.2d 41 (1984), aff'd, 313 N.C. 488, 329 S.E.2d 350 (1985), plaintiff brought suit for breach of contract, negligence and unjust enrichment in connection with defendant's construction of a defective roof. Defendants asserted the statute of limitations, arguing that more than three years had elapsed between the time plaintiffs first discovered leaks and the time suit was filed. In response, plaintiff argued that the complaint was based upon evidence of "blistering" in the roof, caused by moisture trapped between the layers of roofing material, which developed well after the first discovery of leaks. Plaintiff asserted that the earlier leaks were not of the same character or extent as those on which the complaint was based and that the statute of limitations should run from the subsequent date of discovery of the blistering.

This Court disagreed, stating that it was irrelevant that the early leaks were not of the same extent as the subsequent blistering because

[U]nder G.S. 1-52(16) a cause of action `shall not accrue until bodily harm to claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant....' This statute serves to delay the accrual of a cause of action in the case of latent damages until the plaintiff is aware he has suffered damage, not until he is aware of the full extent of the damages suffered.

Pembee at 508-09, 317 S.E.2d at 43. (Emphasis added)

G.S. 1-52(16) modifies the common law rule on accrual of actions only insofar as it requires discovery of physical damage before a cause of action can accrue. "It does not change the fact that once some physical damage has been discovered the injury springs into existence and completes the cause of action." Pembee at 509, 317 S.E.2d at 43. The Supreme Court affirmed the decision, stating,

as soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run.... The fact that further damage which plaintiff did not expect was discovered does not bring about a new cause of action, it merely aggravates the original injury. (citations omitted)

Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 493-94, 329 S.E.2d 350, 354 (1985).

In the present case, plaintiffs' cause of action was grounded upon damage to their home allegedly caused by the 21 July 1979 lightning strike. The immediate and obvious damage to the structure, for which they received payment from defendant, made it apparent to plaintiffs that their home had been damaged, and their cause of action against defendants accrued at that time. The fact that evidence of latent damages was discovered more than three years later does not restart the statutory limitations period.

Plaintiffs further contend that questions of material fact exist as to whether defendant is estopped from invoking any limitation period which might operate to bar this action. Plaintiffs alleged that defendant reopened their initial claim for damages on 22 September 1982 and assigned Renfrow to inspect the house. Renfrow thereafter requested that Mr. Marshburn dig out around the damaged footing so that a professional engineer could inspect the damage. Plaintiffs argue that as a result of Renfrow's contacts and assurances, Mr. Marshburn performed a considerable amount of labor, expended money to hire a professional engineer, and was otherwise put "through the hoops" only to find the claim denied by reason of the passage of time.

*129 It is true that an insurer can be estopped, by its own conduct or words during the limitations period, from asserting the contractual limitation period as a bar to plaintiff's action. Meekins, supra. There is nothing in the record, however, that could estop defendant from asserting this defense. The lightning struck plaintiffs' home on 21 July 1979. More than three years elapsed and the contractual period of limitation had expired before the occurrence of any of the acts of defendant's adjuster relied upon by plaintiff to establish an estoppel. Inasmuch as the bar of the contractual limitations provision had already become complete prior to plaintiffs' discovery of the additional damage, any conduct on the part of the insurance company with regard to that damage could not have induced plaintiffs' failure to institute a timely action under the policy. These assignments of error are overruled.

Plaintiffs next contend that the trial court erred by entering summary judgment against them with respect to their claim that defendants engaged in unfair and deceptive trade practices. In their complaint, plaintiffs alleged that the defendant, through its agent Renfrow committed unfair and deceptive acts in violation of G.S. 58-54.4(11) and G.S. 75-1.1. Plaintiffs neither alleged nor offered any proof, however, that defendant had done any act "with such frequency as to indicate a general business practice." G.S. 58-54.4(11). Failure to allege more than a single refusal by a defendant insurance company to settle a claim is fatal to a cause of action under G.S. 58-54.4(11). Smith v. King, 52 N.C.App. 158, 277 S.E.2d 875 (1981). The facts, as alleged and as established by affidavit, fail to create a genuine issue concerning the frequency of defendant's actions and plaintiffs' claim under G.S. 58-54.4(11) must fail.

Plaintiffs' claim for relief under Chapter 75 must also fail. G.S. 75-1.1 provides, in pertinent part, that "unfair or deceptive acts or practices in or affecting commerce, are declared unlawful" and has been held to provide a remedy for unfair and deceptive trade practices in the insurance industry. Phillips v. Integon Corp., 70 N.C.App. 440, 319 S.E.2d 673 (1984).

The terms "unfair" and "deceptive" were defined by the Supreme Court in Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 262-63, 266 S.E.2d 610, 621 (1980). What is an unfair or deceptive trade practice usually depends upon the facts of each case and the impact the practice has in the marketplace.... The concept of `unfairness' is broader than and includes the concept of `deception.' A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. (citations omitted)

Our review of the record does not reveal the existence of any facts which would create any genuine issue that the manner in which defendant conducted its investigation, or its subsequent denial of plaintiffs' claim, was unethical, oppressive or deceptive in any way. These assignments of error are overruled.

The order of the trial court allowing defendant's motion for summary judgment is

Affirmed.

WELLS and PARKER, JJ., concur.