Allstate Insurance Co. v. Integon Indem. Corp.

211 S.E.2d 463 (1975)

24 N.C. App. 538

ALLSTATE INSURANCE COMPANY v. INTEGON INDEMNITY CORPORATION.

No. 7428SC900.

Court of Appeals of North Carolina.

February 5, 1975.

*465 Van Winkle, Buck, Wall, Starnes, Hyde & Davis by Roy Davis, Jr., Asheville, for plaintiff appellee.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant appellant.

MARTIN, Judge.

Essentially, Allstate argues that it has conferred a benefit upon Integon by paying Integon's share of the loss, and it requests reimbursement on the grounds that Integon has been unjustly enriched thereby. To this end, Allstate invokes the equitable doctrine of subrogation.

Integon argues that its liability was totally precluded due to breach of its policy provision that prohibited other insurance. In support thereof, Integon contends: (1) the Integon policy unambiguously prohibits other insurance; (2) Allstate's policy constitutes "other insurance" within this provision; (3) Integon has not waived the right to assert this provision; and (4) the trial court's findings of fact to the contrary are not supported by the evidence. In each of *466 these contentions we concur. However, while Integon's liability was precluded by the existence of the Allstate policy, it was precluded only with regard to the dwelling. The Integon policy only prohibited other insurance covering the dwelling. Thus, Integon is accountable to Allstate for its pro rata share of the loss to contents and for additional living expenses.

Our decision requires us to reject Allstate's argument that the total loss should be distributed between the two insurers on a pro rata basis. Since both policies contain provisions prohibiting other insurance, Allstate argues that such provisions are mutually repugnant and should be ignored. Such an argument is not without a sound basis in reason. See Lamb-Weston, Inc. v. Oregon Automobile Insurance Co., 219 Or. 110, 341 P.2d 110, 76 A.L.R.2d 485 (1959). However, in this matter we feel bound by the decision in Sugg v. Ins. Co., 98 N.C. 143, 3 S.E. 732 (1887). There plaintiffs sued to recover on a policy containing the following clause:

"Or if there shall be any other insurance, whether valid or otherwise, on the property insured, or any part thereof, at the time this policy is issued, or at any time during its continuance, without the consent of this company written hereon, or if the risk be increased by any means within the control of the assured, this policy shall be void," etc.

In forgetfulness, and without intent to defraud defendant insurer, plaintiff Mittie Sugg took out additional policies of insurance on the same property, and each contained similar clauses as the one set forth above. The Court held that plaintiff's violation of defendant's provision prohibiting other insurance precluded defendant's liability.

In the present case, if the insured could not recover under Integon's Policy for loss to the dwelling, then clearly Allstate cannot. If Sugg is good law then it follows that there is no right in the insured against Integon for loss to the dwelling to which Allstate can be subrogated.

In holding Integon liable for a pro rata share of the loss to contents and for additional living expenses, we reject Integon's argument that Allstate acted as a mere volunteer in the payment of these items. "A payment made under compulsion is not voluntary; payment made under a moral obligation, or in ignorance of the real state of facts, or under an erroneous impression of one's legal duty, is not a voluntary payment." Boney, Insurance Comr. v. Insurance Co., 213 N.C. 563, 197 S.E. 122 (1938). See also Dobbs, Law of Remedies, § 4.9, p. 305 (1973).

We hold that Integon is liable for a pro rata share of the loss to contents and for additional living expenses which in this case will amount to three-sevenths of $11,958.74, or $5,125.17.

This cause is remanded to the Superior Court of Buncombe County for the entry by it of a judgment in accordance with this opinion.

Reversed and remanded.

VAUGHN and ARNOLD, JJ., concur.