Carter v. Georgia Life & Health Ins. Co.

233 S.E.2d 65 (1977)

32 N.C. App. 580

Linwood Earl CARTER v. GEORGIA LIFE AND HEALTH INSURANCE COMPANY.

No. 768DC707.

Court of Appeals of North Carolina.

March 16, 1977.

*66 Barnes, Braswell & Haithcock, P. A., by Michael A. Ellis, Goldsboro, for plaintiff-appellant.

Taylor, Allen, Warren & Kerr by Robert D. Walker, Jr., Goldsboro, for defendant-appellee.

CLARK, Judge.

The issue upon appeal is whether the trial court was correct in concluding that plaintiff's claim was barred by the three-year period of limitation contained in the insurance contracts. Defendant contends that the period runs from the end of the ninety-day period to file proof of loss, in this case from 27 August 1972, and that when plaintiff filed his complaint on 26 September 1975, the period had run. Plaintiff contends that the period runs from the time written proof of loss is furnished, plus the sixty days during which the policies prohibit a claimant from filing suit, in this case from 18 November 1972.

It is apparent that unless plaintiff prevails on the argument that the sixty-day period must be taken into account, his claim will be barred irrespective of whether the period of limitations runs from the end of the ninety-day period, 27 August 1972, or the date proof was in fact furnished, 18 September 1972, since in either event the three-year period would have run when he filed suit on 26 September 1975. The initial question then is whether plaintiff is entitled to have the sixty-day period providing immunity from suit added to "the time written proof of loss is required to be furnished" in computing the date which begins the running of the period of limitations.

There is a sharp split on whether clauses which postpone the right to sue also postpone the date from which a period of limitations runs. 44 Am.Jur.2d, Insurance, § 1911 (1969). North Carolina is among the jurisdictions which construe a clause postponing suit in conjunction with a clause establishing a period of limitations so as to postpone the running of the period of limitations. Heilig v. Insurance Company, 152 N.C. 358, 67 S.E. 927 (1910).

However, the "legal actions" clause provides that the right to sue is postponed only when "written proof of loss has been furnished in accordance with the requirements of this policy." Upon defendant's plea of limitations, the burden is on the plaintiff to show that the action was instituted within the prescribed period. Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784 (1961). In the present case, if plaintiff wanted the benefit of the sixty-day period in calculating the period of limitations, the burden was on him to show the existence of an issue as to whether the proof of loss he submitted on 18 September 1972 "was furnished in accordance with the requirements" of the policies.

We conclude that no adequate showing was made. The "Proofs of Loss" clause provides that proof of loss may be furnished after ninety days only "if it was not reasonably possible to give proof" within that period. In response to the motion for summary judgment, plaintiff rested upon his pleadings, which do not allege any reason *67 for the delay in furnishing written proof of loss. G.S. 1A-1, Rule 56(e) provides that the party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Millsaps v. Contracting Co., 14 N.C.App. 321, 188 S.E.2d 663 (1972). The complaint, the two policies, and the proof of loss offered by defendant in support of its motion satisfied its burden of showing that no issue existed as to whether the action had been brought within the three-year period of limitations, unless plaintiff was entitled to the benefit of the sixty-day period. Brown v. Casualty Co., 19 N.C.App. 391, 199 S.E.2d 42 (1973), aff'd, 285 N.C. 313, 204 S.E.2d 829 (1974).

If plaintiff wished to invoke the sixty-day period to delay the running of the period of limitations, the burden of going forward was on him to show that an issue existed as to whether his proof of loss had been furnished in compliance with the policies, in particular that there was reason for his failure to furnish written proof of loss within the ninety-day period. Since defendant carried his burden of showing a lack of a triable issue of fact on the plea of limitations, summary judgment in his behalf was appropriate.

The judgment is

Affirmed.

VAUGHN and HEDRICK, JJ., concur.