Barber v. WOODMEN OF THE WORLD LI SOC.

382 S.E.2d 830 (1989)

Elizabeth M. BARBER v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, a corporation.

No. 8829SC1229.

Court of Appeals of North Carolina.

September 5, 1989.

*833 Toms & Bazzle by James H. Toms and Ervin W. Bazzle, Hendersonville, and Roberts, Baggett, LaFace & Richard by B.K. Roberts, Tallahassee, Fla., for plaintiff-appellant.

Francis M. Coiner, Hendersonville, for defendant-appellee.

EAGLES, Judge.

Plaintiff argues that the trial court erred in denying her motions for directed verdict at the close of her evidence and at the close of all the evidence as well as denying her motion for judgment notwithstanding the verdict. Plaintiff also argues that the trial court erred in refusing to give her proposed jury instructions and in failing to submit her proposed issues to the jury. In addition, plaintiff contends that the jury's verdict that she was not damaged by defendant's negligence is not supported by the record. We agree that the trial court erred in failing to submit factual questions to the jury concerning plaintiff's claim of unfair and deceptive trade practices on the $10,000 policy but otherwise, we affirm the judgment below.

We first address plaintiff's contention that the trial court erred in denying her motion for directed verdict. The purpose of a directed verdict motion is to test the sufficiency of the evidence. Wallace v. Evans, 60 N.C.App. 145, 298 S.E.2d 193 (1982). In reviewing this issue we must consider the evidence in the light most favorable to the non-movant. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973).

Plaintiff argues that it is undisputed that defendant made an express representation of coverage regarding the status of her decedent's insurance policies and, accordingly defendant should now be estopped from claiming that she is not the primary beneficiary of the $100,000 policy. We disagree. In Pearce v. American Defender Life Ins. Co., 74 N.C.App. 620, 330 S.E.2d 9 (1985), affirmed in part, reversed in part, 316 N.C. 461, 343 S.E.2d 174 (1986), our court held that while the doctrine of estoppel may be used by an insured to prevent forfeiture of a policy's benefits, it may not be used to expand the risks covered. We said that "[t]he theory underlying this rule seems to be that the company should not be required by waiver and estoppel to pay a loss for which it charged no premium." Id. at 626, 330 S.E.2d at 13. Application of the estoppel principle here would require this defendant to pay more in benefits than the parties contracted for in the insurance policy. Accordingly, we hold that on this record plaintiff may not use the doctrine of estoppel to effectively rewrite the insurance contract.

Plaintiff next argues that the trial court should have granted her motion for directed verdict on her claim for breach of fiduciary duty on the $100,000 policy. We disagree. We first note that a directed verdict is seldom appropriate in a negligence case. Alva v. Cloninger, 51 N.C. App. 602, 277 S.E.2d 535 (1981). Furthermore, even where the facts are undisputed, a directed verdict motion should be granted to the party with the burden of proof only when credibility is manifest as well. Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986).

Here an essential element of plaintiff's case is that defendant's misrepresentation proximately caused damage to plaintiff. By the terms of the policy plaintiff's husband could change beneficiaries only by making a written request. His letter only inquired about the status of his policies and does not constitute a request to change *834 beneficiaries. Moreover, the other beneficiaries named in the policy are plaintiff's husband's children by his first marriage who are natural objects of his bounty and affection. We cannot say that plaintiff's credibility here is so manifest as to justify removing the case from the jury. Accordingly, we hold that the trial court did not err in denying the plaintiff's motion for directed verdict on her breach of fiduciary duty claim on the $100,000 policy.

Plaintiff further contends that the trial court erred in failing to grant her motion for directed verdict on her claim for unfair and deceptive trade practices pursuant to G.S. 75-1.1 on both insurance policies. To prove a Chapter 75 claim the plaintiff must show not only that defendant violated the statute but also that plaintiff suffered an injury as a proximate result of defendant's actions. Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980). Our court has held that whether plaintiff's damages were the proximate result of defendant's actions is almost always a question of fact for the jury. Winston Realty Co. v. G.H.G., Inc., 70 N.C.App. 374, 320 S.E.2d 286 (1984), affirmed, 314 N.C. 90, 331 S.E.2d 677 (1985). Accordingly, the trial court did not err in denying plaintiff's motions for directed verdict on her claims for unfair and deceptive trade practices.

A motion for judgment notwithstanding the verdict simply renews the movant's directed verdict motion. "The propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as that of a motion for a directed verdict." Dickinson v. Pake, 284 N.C. 576, 584, 201 S.E.2d 897, 903 (1974). Since the evidence was sufficient to withstand plaintiff's directed verdict motion, the trial court did not err in denying the motion for judgment notwithstanding the verdict.

Through plaintiff's second and third assignments of error she contends that the trial court erred in failing to submit her proposed jury instructions and issues to the jury. Instead, the trial court formulated its own issues and instructions for its jury charge. Pursuant to Rule 51 of the North Carolina Rules of Civil Procedure the trial court "must submit to the jury such issues as when answered by them will resolve all material controversies between the parties, as raised by the pleadings." Harrison v. McLear, 49 N.C.App. 121, 123, 270 S.E.2d 577, 578 (1980). The trial court need not use the exact language of plaintiff's tendered instructions in instructing the jury. Anderson v. Smith, 29 N.C.App. 72, 223 S.E.2d 402 (1976). However, in charging the jury the trial court must explain the law and apply it to each substantial feature of the case. Hord v. Atkinson, 68 N.C.App. 346, 315 S.E.2d 339 (1984). Failure to instruct on a substantial feature of a case constitutes prejudicial error. Mosley & Mosley Builders v. Landin Ltd., 87 N.C.App. 438, 361 S.E.2d 608 (1987).

In the instant case the trial court failed to submit to the jury and subsequently failed to instruct the jury on the issue of unfair and deceptive trade practices as it related to the $10,000 policy. This was error. Plaintiff's amended complaint alleged defendant's actions in denying her payment of the proceeds of both policies violated Chapter 75. For claims pursuant to G.S. 75-1.1 the jury finds the facts and, based upon those facts, the trial court determines as a matter of law whether defendant's conduct constitutes an unfair or deceptive trade practice. Chastain v. Wall, 78 N.C.App. 350, 337 S.E.2d 150 (1985), disc. rev. denied, 316 N.C. 375, 342 S.E.2d 891 (1986). Here the trial court failed to submit to the jury those factual questions in need of resolution concerning plaintiff's Chapter 75 claim relating to her decedent's $10,000 policy. Accordingly, plaintiff is entitled to a new trial on this issue as it relates to the $10,000 policy.

We note that upon retrial on her Chapter 75 claim as it relates to the $10,000 policy damages may have to be determined. This court noted in Bernard v. Central Carolina *835 Truck Sales, 68 N.C.App. 228, 314 S.E.2d 582, disc. rev. denied, 311 N.C. 751, 321 S.E.2d 126 (1984), that a Chapter 75 claim is a separate and distinct action apart from fraud, breach of contract or breach of warranty. Accordingly, there we held that it "would be illogical" to hold that only those methods of measuring damages could be used to ascertain the damages caused by a Chapter 75 claim. We further stated that the "measure of damages used should further the purpose of awarding damages, which is `to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money.'" [Citation omitted.] Id. at 233, 314 S.E.2d at 585.

The trial court submitted issues and instructions on every other substantial feature of the case. We note, however, that plaintiff failed to except to any portion of the trial court's instruction and, accordingly, we may not review whether the instruction as given was proper. N.C.App.R. 10(b)(2).

In summary, we reverse and remand for trial the claim of unfair and deceptive trade practices as it relates to the $10,000 policy because the trial court failed to submit the issue for the jury's determination. As to all of the remaining issues, we affirm.

Affirmed in part; reversed and remanded in part.

WELLS and PARKER, JJ., concur.