Horton v. Iowa Mutual Insurance Company

175 S.E.2d 725 (1970)

George W. HORTON and wife, Margot Horton v. IOWA MUTUAL INSURANCE COMPANY and Northwestern Bank.

No. 7029SC340.

Court of Appeals of North Carolina.

August 5, 1970.

Certiorari Denied October 5, 1970.

*727 Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiffs-appellants.

Williams, Morris & Golding by William C. Morris, Jr., Asheville, for defendants-appellees.

CAMPBELL, Judge.

Upon a motion for judgment, non obstante veredicto, under G.S. § 1A-1, Rule 50(b) (1), the sufficiency of the evidence upon which the jury based its verdict is drawn into question.

All evidence which supports plaintiffs' claim must be taken as true and considered in the light most favorable to plaintiffs, giving them the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiffs' favor. Musgrave v. Mutual Savings & Loan Association, N.C. App., 174 S.E.2d 820 (Filed 24 June 1970).

Applying this rule, if the plaintiffs have made out a case sufficient to go to the jury, then it was error to enter the judgment setting aside the verdict and granting a judgment for the defendant notwithstanding the verdict.

In the instant case the evidence for the plaintiffs would support a finding by the jury that on 11 November 1965, the day after the fire, Charles Z. Black Agency notified Kenneth Bostic, the North Carolina Claims Manager of the defendant, that there had been a loss by fire. Bostic testified that pursuant to this notification, "I employed General Adjustment Bureau of Shelby, North Carolina, to adjust the claim. Mr. Harold Payne in that Bureau handled the claim. I telephoned the coverage and asked him to adjust the claim for us. * * He is, in fact, an independent adjuster and I gave him such information as I had and told him to do the necessary work to adjust the loss and thereafter, I received periodic reports from him. * * *"

Payne proceeded to communicate with the male plaintiff. Payne requested the male plaintiff to furnish income and sales tax reports and all of his invoices. Mr. Horton testified that Payne told him "he wanted to compile all this information so that he could pay me as soon as possible." About two weeks after the fire, "Mr Payne said as long as we were negotiating that I would not have to file proof of loss, that they were going to pay me right off as soon *728 as he got the necessary information together."

Plaintiffs also offered in evidence the following testimony from the male plaintiff of a conversation with Payne.

"I asked him would I have to bring suit against the company or was it necessary to instigate a suit before one year and he said, `Oh, no, you don't have to do that, they are going to pay you as soon as I turn in this information, and get it compiled, they are going to pay you and it won't be necessary.'"

An objection to this testimony on behalf of the defendant was sustained, and plaintiffs assigned this for error. We are of the opinion that this testimony was competent, as shown hereafter.

In July or August 1966 the plaintiffs employed Oscar J. Mooneyham, an attorney of Rutherford County, to represent them; and the plaintiffs discontinued further negotiations with Payne. On 14 October 1966 Payne wrote Mooneyham advising that the information theretofore received was unacceptable without other supporting evidence as to the stock of merchandise contained in the building at the time of fire. In this letter Payne suggested further steps and further information to be supplied in order to establish values. Mooneyham died during the Spring of 1967 and the plaintiffs procured present counsel. In April 1967 Payne was still working on the case attempting "to secure information regarding the values, regarding the stock of merchandise."

As far back as 1892, it was established in North Carolina that an insurance adjuster clothed with the authority to adjust and settle a fire insurance loss had the authority to waive the 60-day limitation for filing proof of loss and also the 12-month limitation for instituting a suit. Both sides of the question are clearly presented in the majority opinion and in the dissenting opinion in the case of Dibbrell v. Georgia Home Insurance Co., 110 N.C. 193, 14 S.E. 783 (1892). Likewise, see Strause v. Palatine Ins. Co., 128 N.C. 64, 38 S.E. 256 (1901); Meekins v. Aetna Insurance Co., 231 N.C. 452, 57 S.E.2d 777 (1950); Gaskins v. Hartford Fire Insurance Co., 260 N.C. 122, 131 S.E.2d 872 (1963).

While an insurance adjuster has such implied authority, while adjusting losses, local agents are treated differently. See Tatham & Co. v. Liverpool, London & Globe Ins. Co., 181 N.C. 434, 107 S.E. 450 (1921); Zibelin v. Pawtucket Mutual Fire Insurance Co., 229 N.C. 567, 50 S.E.2d 290 (1948); Fleming v. Employers Mutual Liability Insurance Co., 269 N.C. 558, 153 S.E.2d 60 (1967).

The case at bar involves Payne, an insurance adjuster, employed specifically to settle a loss; and we think this case falls under the Dibbrell line of cases and not the Tatham line.

In the instant case the fire loss occurred 10 November 1965. The action was not instituted until 7 November 1967, which was nearly two years after the loss and well beyond the 12-month limitation provision of the policy. In order for the plaintiffs to avail themselves of the doctrine of estoppel or waiver of this policy provision on the part of the defendant, they must plead it. We are not prepared to say that the allegations in the complaint and the amendment thereto are too indefinite to justify the submission of an issue on this question. Laughinghouse v. Great Nat. Insurance Co., 200 N.C. 434, 157 S.E. 131 (1931).

We hold that the judgment entered for defendant notwithstanding the verdict is reversed, and it is ordered that the jury verdict be reinstated on the first three issues. It is to be noted that Judge Snepp conditionally granted a motion for a new trial as to the fourth issue. This was done pursuant to Rule 50(c) (1), and the grounds therefore comply with Rule 59(a) (6). G.S. § 1A-1 (Rules of Civil Procedure). In this we find no error. It is therefore necessary *729 that this case be remanded to the Superior Court for determination of the fourth issue as to the amount plaintiffs are entitled to recover for loss of contents in the building.

Reversed in part, and remanded.

BRITT and VAUGHN, JJ., concur.