Gardner v. Carolina Insurance

55 S.E.2d 694, 230 N.C. 750, 1949 N.C. LEXIS 455

• Court: Supreme Court of North Carolina
• Decided: October 19, 1949
• Status: Published

Opinion

Barnhill, J.

Tbe contract between plaintiff and defendant is in tbe standard form prescribed by statute. G.S. 58-177. Tbe rights and liabilities of both parties under tbe policy must be ascertained and determined in accord witb its terms. Zibelin v. Insurance Co., 229 N.C. 567, and cases cited.

Under tbe terms of tbe policy tbe plaintiff was required to file witb defendant proof of loss witbin sixty days after tbe fire occurred, and tbe policy provides that unless tbis proof is filed witbin tbe prescribed period no suit may be maintained on tbe policy. Tatham v. Ins. Co., 181 N.C. 434, 107 S.E. 450; Zibelin v. Insurance Co., supra. Ordinarily, compliance with these provisions of the contract must be alleged in the complaint and proved at the hearing.

The defendant, of course, could waive the filing of proof of loss, and it is generally held that a denial of liability by the insurer, made during the period prescribed b'y the policy for the presentation of proof of loss, on grounds not relating to the proof, will be considered a waiver of the provision requiring such proof. Gerringer v. Insurance Co., 133 N.C. 407; Felts v. Insurance Co., 221 N.C. 148, 19 S.E. 2d 259; Gorham v. Insurance Co., 214 N.C. 526, 200 S.E. 5; Anno. 22 A.L.R. 408. But the record fails to disclose either allegation or evidence of waiver.

As the plaintiff filed no proof of loss and has failed to show waiver, he has no enforceable cause of action. Therefore the judgment below must be

Affirmed.