Gilbert v. North Carolina Farm Bureau Mutual Insurance

574 S.E.2d 115, 155 N.C. App. 400, 2002 N.C. App. LEXIS 1608
CourtCourt of Appeals of North Carolina
DecidedDecember 31, 2002
DocketCOA01-1567
StatusPublished
Cited by6 cases

This text of 574 S.E.2d 115 (Gilbert v. North Carolina Farm Bureau Mutual 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
Gilbert v. North Carolina Farm Bureau Mutual Insurance, 574 S.E.2d 115, 155 N.C. App. 400, 2002 N.C. App. LEXIS 1608 (N.C. Ct. App. 2002).

Opinions

[401]*401McCullough, Judge.

On 5 September 1996, plaintiffs residence, located at 201 Forest Hills Drive, Wilmington, North Carolina, was severely damaged by Hurricane Fran and its aftermath. Defendant provided insurance coverage pursuant to Homeowners’ Insurance Policy Number HP 537794 effective from 15 June 1996 until 15 June 1997. Thus on 5 September plaintiff was fully covered by the aforementioned policy. Once defendant’s adjuster and plaintiffs could not reach an agreement on the value of the loss, the policy’s appraisal clause was invoked. That provision provided:

If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser .... The two appraisers will choose an umpire. . . . The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

As the appraisers could not agree, an umpire was chosen. The umpire issued an award setting the Replacement Cost Value at $270,891.35 and the Actual Cash Value at $230,257.55.

The policy’s Loss Settlement provision provided that “[w]e will pay no more than the actual cash value of the damage unless: (a) actual repair or replacement is complete.” Shortly thereafter, defendant tendered the balance of the Actual Cash Value paying a total of $230,257.55 to plaintiffs. Defendants contended that to be entitled to the replacement cost value plaintiffs would have to complete the needed repairs.

On 3 August 1999, plaintiffs filed suit alleging breach of contract, negligence, bad faith and unfair or deceptive trade practices. Defendant subsequently moved for summary judgment, and on 25 July 2001 the trial court entered partial summary judgment in favor of plaintiffs, entering the following Conclusions of Law:

1. This Court has jurisdiction over the parties and the subject matter of this hearing; namely, whether or not, as a matter of law, the Policy and Guaranteed Replacement Cost Endorsement provided that, where there was an Appraisal Award entered, the [402]*402Plaintiffs were entitled to be paid the replacement cost value established by the Appraisal Award without having to first prove to Defendant that the Plaintiffs had actually made the repairs to their Residence.
2. The Appraisal Clause of the Policy was designed to prevent litigation and insure finality in disputes over the amount of the Loss.
3. The determination of the umpire, which was agreed to and accepted unanimously by the appraisers for the parties, was a binding and final determination of the respective rights of the parties as to the amount of the Loss under the Policy and the Guaranteed Replacement Cost Endorsement.
4. In accordance with the Loss Payment clause of the Policy, the Plaintiffs were entitled to receive from Defendant the payment of the $270,891.35 replacement cost value established by the Appraisal Award within sixty (60) days of the date of the filing of the Appraisal Award with Defendant.
5. Plaintiffs are entitled to recover from Defendant, as a matter of law, the difference between the actual cash value previously paid by Defendant ($230,257.55) and the replacement cost valúe established by the Appraisal Award ($270,891.35); namely, $40,633.80.
6. As a result of the Court’s conclusions above, the Court determines that a substantial right of the Defendant will be affected. Therefore, Defendant is entitled to an immediate right of interlocutory appeal pursuant to Rule 54 of the Rules of Civil Procedure as there is no just reason for delay of such appeal.

In its only assignment of error defendant argues that the trial court erred in awarding plaintiffs $40,633.80, the difference between the Actual Cash Value of $230,257.55 and the Replacement Cash Value of $270,891.35, without requiring plaintiffs to rebuild or repair as set forth in the policy.

As this is an Order and Partial Judgment, the threshold question is whether such is appealable. “[A] grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 [403]*403(1993). Parties may appeal orders where (1) the denial of an appeal would affect a substantial right, N.C. Gen. Stat. § 1-277 (2001); or (2) in cases involving multiple claims or parties, a final judgment is entered as to one claim or party and the trial court certifies pursuant to Rule 54(b) that there is no just reason for delay. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). As the trial court did certify that there was no just reason for delay, the order is properly before this Court.

It is well settled in this state that where “contractual appraisal provisions are followed, an appraisal award is presumed valid and is binding absent evidence of fraud, duress, or other impeaching circumstances.” Enzor v. N.C. Farm Bureau Mut. Ins. Co., 123 N.C. App. 544, 545-46, 473 S.E.2d 638, 639 (1996).

In the case sub judice the trial court found that the Guaranteed Replacement Cost Endorsement controlled the appraisal, thus entitling plaintiffs to the Replacement Cost Value instead of the Actual Cash Value, both of which were specified in the appraisal award. The trial court evidently found that this clause voided the Loss Settlement provisions of the policy.

Interpreting insurance policies is a matter of law. Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). In doing so the courts have several well-settled principles. “[A]n insurance policy is a contract and its provisions govern the rights and duties of the parties thereto.” Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986).

“As with all contracts, the goal of construction is to arrive at the intent of the parties when the policy was issued.” Woods v. Insurance Co., 295 N.C. 500, 505, 246 S.E.2d 773, 777 (1978). The intent may be derived from the language in the policy or contract itself. Rouse v. Williams Realty Bldg. Co., 143 N.C. App. 67, 69, 544 S.E.2d 609, 612 (2001). If the policy is clear, the courts may not, under the guise of an ambiguity in the policy, rewrite the contract. Woods, 295 N.C. at 505-06, 246 S.E.2d at 777.

In this case, the trial court erroneously found that the Guaranteed Replacement Cost Endorsement (HO-500) somehow voided the Loss Settlement provisions of the policy.

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Gilbert v. North Carolina Farm Bureau Mutual Insurance
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Bluebook (online)
574 S.E.2d 115, 155 N.C. App. 400, 2002 N.C. App. LEXIS 1608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-north-carolina-farm-bureau-mutual-insurance-ncctapp-2002.