Chrysler Financial Co. v. South Carolina Insurance

581 S.E.2d 790, 158 N.C. App. 513, 2003 N.C. App. LEXIS 1149
CourtCourt of Appeals of North Carolina
DecidedJune 17, 2003
DocketNo. COA02-1079
StatusPublished
Cited by1 cases

This text of 581 S.E.2d 790 (Chrysler Financial Co. v. South Carolina Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chrysler Financial Co. v. South Carolina Insurance, 581 S.E.2d 790, 158 N.C. App. 513, 2003 N.C. App. LEXIS 1149 (N.C. Ct. App. 2003).

Opinion

TYSON, Judge.

Chrysler Financial Corporation (“plaintiff’) appeals from an interlocutory order denying summary judgment against South Carolina Insurance Company (“defendant”) and from order granting summary judgment for defendant. We reverse the order granting summary judgment against plaintiff and dismiss the appeal from the interlocutory order.

I. Background

On 30 March 1998, Jimmy and Mary Johnson executed a retail installment contract in favor of plaintiff secured by a 1998 Chrysler Sebring Coupe (“vehicle”) as collateral. On 29 September 1999, defendant issued an automobile insurance policy (“policy”) to Jimmy Johnson covering the vehicle. The policy named plaintiff as “loss payee.”

The loss payee portion of the policy read as follows.

Loss or damage under this policy shall be paid as interest may appear to you and the loss payee shown in the Declarations or in this endorsement. This insurance covering the interest of the loss payee shall become invalid only because of your:
1. conversion or secretion of “your covered auto”, or
2. damage to or destruction of “your covered auto” with the intent to commit fraud.
However, we reserve the right to cancel the policy as permitted by policy terms and the cancellation shall terminate this agree[515]*515ment as to the loss payee’s interest. We will give the loss payee 10 days notice of cancellation.
When we pay the loss payee we shall, to the extent of payment, be subrogated to the loss payee’s rights of recovery.

On 24 October 1999, the vehicle suffered damage during a collision in Pennsylvania. Defendant received notice of the collision and investigated the accident. The fair market value of the car was estimated to be $18,225.00. It was declared a total loss. After the initial investigation, defendant determined that the Johnsons had made misrepresentations in their application for insurance. By letter dated 4 January 2000, defendant denied coverage for the loss of the vehicle.

Neither the Johnsons nor defendant advised plaintiff of the damage to the vehicle. After the collision, the Johnsons failed to make payments to plaintiff, and plaintiff learned of the damage to the vehicle. On 9 October 2000, plaintiff sent a demand letter to defendant for the payment due pursuant to the terms of the loss payable clause of the policy. On 16 October 2000, defendant replied to plaintiff’s letter and contended that no coverage was available to plaintiff as loss payee, due to the misrepresentations made by the Johnsons in their application.

On 26 January 2001, plaintiff filed a complaint against defendant to recover for damages to the vehicle and against the Johnsons to recover the balance due on the retail installment contract. Defendant and the Johnsons filed answers and cross claims against each other. On 2 April 2001, plaintiff filed a motion for summary judgment against defendant and the Johnsons. On 12 September 2001, the trial court granted summary judgment against the Johnsons for $18,708.98 plus interest accrued from 11 December 2000. On 17 September 2001, the trial court denied plaintiff’s motion for summary judgment against defendant. On 14 June 2002, the trial court granted defendant’s motion for summary judgment dismissing the claims of the Johnsons and plaintiff. Plaintiff appeals.

II. Issues

The issues are (1) whether the Johnsons’ misrepresentations to defendant in their insurance application voided the protection afforded plaintiff in the loss payee clause and (2) whether the trial court erred in denying summary judgment in favor of the plaintiff against defendant.

[516]*516TTT. Effect of Johnsons’ Misrepresentations

The trial court granted defendant’s motion for summary judgment on the grounds: (1) that the Johnsons’ misrepresentations voided the policy ab initio, and (2) that plaintiff held no interest as loss payee in a voided policy. The trial court relied upon the case of Odum v. Nationwide Mutual Ins. Co., 101 N.C. App. 627, 401 S.E.2d 87, disc. review denied, 329 N.C. 499, 407 S.E.2d 539 (1991). Odum held that fraud was a defense to any amount of coverage in excess of the statutory minimum required for motor vehicle liability coverage. Id. at 635-36, 401 S.E.2d at 92.

Odum involved a liability coverage dispute. Here, the interpretation of a loss payee clause and the impact of the insured’s fraud on the rights of the loss payee are at issue.

We hold that the more recent and factually similar case of Nationwide Mutual Ins. Co. v. Dempsey, 128 N.C. App. 641, 495 S.E.2d 914, disc. review denied, 348 N.C. 283, 502 S.E.2d 847 (1998) controls. In Dempsey, Regional Acceptance Corporation held a perfected security interest in the insured’s vehicle and was named as the “loss payee” in insured’s insurance contract. Dempsey, 128 N.C. App. at 642, 495 S.E.2d at 915. The loss payee clause was virtually identical to that at bar. Id. This Court found that clause to be a “standard mortgage clause” rather than an “open or simple loss-payable clause.” Id. at 644, 495 S.E.2d at 916.

The clause stated that the “insurance covering the interest of the loss payee shall become invalid only because of your conversion or secretion of your covered auto.” This language clearly extends to the loss payee greater coverage than that extended to Dempsey as it sets out only two instances when the loss payee’s insurance coverage will become invalid. For this reason, we hold that the clause is a standard mortgage clause.

Id.

Although the loss payee clause at bar extends an exception to “damage to or destruction of ‘your covered auto’ with the intent to commit fraud,” we find the rationale of Dempsey applicable. The clause is a standard mortgage clause which exists as a “distinct and independent contract between the insurance company and the mortgagee and ‘confers greater coverage to the lienholder than the insured has in the underlying policy.’ ” Id. at 643, 495 S.E.2d at 915 [517]*517(quoting Foremost Ins. Co. v. Allstate Ins. Co., 486 N.W.2d 600, 605 fn. 27 (Mich. 1992)). Plaintiffs rights are not derivative of the Johnsons’ interest.

The trial court did not interpret whether the Johnsons’ alleged misrepresentations constituted one of the exceptions outlined in the loss payee clause. We hold that the Johnsons’ behavior does not constitute an exception to payment for the loss payee.

Aside from the exceptions, the loss payee clause sets forth a notice requirement for cancellation. Defendant was required to give the Johnsons and the loss payee ten days notice of the impending cancellation for the collision insurance at issue. The record does not indicate when or if defendant gave notice of its cancellation to plaintiff. Defendant notified the Johnsons of the cancellation by letter of 4 January 2000 in which it denied coverage and cancelled the policy.

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581 S.E.2d 790, 158 N.C. App. 513, 2003 N.C. App. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chrysler-financial-co-v-south-carolina-insurance-ncctapp-2003.