Ind-Com Elec. Co. v. First Union Nat. Bank

293 S.E.2d 215 (1982)

IND-COM ELECTRIC COMPANY a Corporation, Plaintiff, v. FIRST UNION NATIONAL BANK a Banking Corporation, Defendant, v. Gayle R. POOLE, Jerry L. Sneed, William G. Poole, James A. Sneed and Don W. Daniels, Third-Party Defendants.

No. 8126SC1042.

Court of Appeals of North Carolina.

July 6, 1982.

*216 Henderson & Shuford by David H. Henderson and Robert E. Henderson, Charlotte, for plaintiff-appellant.

James, McElroy & Diehl by Gary S. Hemric, Charlotte, for defendant-appellee.

ARNOLD, Judge.

Plaintiff's appeal rests on its contention that defendant failed to meet the standard of care required of it by G.S. 25-4-406 and should therefore be held liable in spite of its fulfillment of the requirements of G.S. 25-3-406. These two statutes specify the circumstances under which a drawee bank will be held liable for payment of unauthorized checks in spite of the contributory negligence of the customer.

G.S. 25-3-406 releases the bank from liability in this situation if it "pays the instrument in good faith and in accordance with... reasonable commercial standards." Applying this standard, the parties' stipulations would clearly preclude FUNB's liability. However, Ind-Com relies instead on G.S. 25-4-406. This statute sets forth the general rule that a bank is not liable where the customer's negligence in failing to examine his bank statements is the cause of the loss. As an exception to this rule, however, the statute provides that the bank is not excused from liability where "the customer establishes lack of ordinary care on the part of the bank in paying the item(s)." G.S. 25-4-406(3). Ind-Com contends that compliance with industry standards does not necessarily fulfill the requirement of "ordinary care" and argues that the evidence raises a material issue of fact as to FUNB's compliance with the latter standard.

While we find interesting Ind-Com's argument that the two statutes are inconsistent, we have determined that Ind-Com has failed to fulfill the requirements of G.S. 25-4-406(3), on which it relies. We do not, therefore, find it necessary to reach the issue of the interrelationship of the two statutes.

The statutory requirement that the customer must establish the bank's lack of ordinary care in order to recover notwithstanding the customer's own negligence places the burden of proof squarely upon the shoulders of the customer. Although the initial burden in a summary judgment hearing is on the moving party to establish the absence of any material issue of fact and to show its entitlement to judgment in its favor as a matter of law, we find that this burden was met by FUNB's undisputed evidence that its practices comported with generally accepted standards in the banking industry as required by G.S. 25-3-406.

It is well settled that once the movant has met its burden, the party opposing summary judgment may not rely "upon the mere allegations or denials of his pleading, *217 but ... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), North Carolina Rules of Civil Procedure. See Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Moore v. Fieldcrest Mills, Inc., 36 N.C.App. 350, 244 S.E.2d 208 (1978), aff'd 296 N.C. 467, 251 S.E.2d 419 (1979). Our review of the record here reveals no such specific facts in support of plaintiff's position. Ind-Com apparently relies on its allegation that the protective measures employed by FUNB were inadequate and on the opinion of an Ind-Com officer that the bank should have been placed on notice of the forgeries by the amounts and payees of the checks. We hold that Ind-Com's failure to produce a forecast of specific evidence to rebut FUNB's evidence of its exercise of ordinary care in paying the forged checks entitled FUNB to judgment as a matter of law.

Affirmed.

VAUGHN and ROBERT M. MARTIN, JJ., concur.