Jamestown Mutual Insurance v. Nationwide Mutual Insurance

277 N.C. 216
CourtSupreme Court of North Carolina
DecidedOctober 14, 1970
DocketNo. 21
StatusPublished
Cited by1 cases

This text of 277 N.C. 216 (Jamestown Mutual Insurance v. Nationwide Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jamestown Mutual Insurance v. Nationwide Mutual Insurance, 277 N.C. 216 (N.C. 1970).

Opinion

MOORE, Justice.

The facts briefly stated are as follows: On 8 February 1963 William Clark Hamrick was driving an automobile owned by Tedder Motor Company, with the view of purchasing it, when he was involved in an accident. As a result of the accident, Richard Wiseman Splown, John P. Compton, Mrs. Willie Bowles Lovelace, and Frances Sisk Holland made claims against William for personal injuries and property damages sustained in the accident. Nationwide, at the time, had in force a family automobile liability policy which it had issued to W. F. Hamrick, the father of William. Jamestown had in force a garage liability policy which it had issued to Thomas N. Tedder, d/b/a Tedder Motor Company. Both Jamestown and Nationwide investigated the [218]*218accident, and Nationwide erroneously, as it later developed, denied coverage to William on the ground that he was not a “relative” within the meaning of his father's policy and, further, because he was operating the automobile in the “automobile business” at the time of the accident. Jamestown’s policy provided coverage to William “only if no other valid and collectible automobile liability insurance, either primary or excess, ... is available to such person.” Jamestown contends that had Nationwide admitted coverage, Jamestown would not have been liable under the terms of its policy. However, since Nationwide denied coverage, Jamestown notified Nationwide that it would process the claims arising out of the accident but would reserve all of its rights and all of its insured’s rights under the law and under the terms of its poliicy to make later claims against Nationwide for indemnity, adjustment and legal expenses incurred in defense of litigation or in any suit to determine coverage as between the respective companies, and based upon its apparent duty to defend William, Jamestown did settle the claims made by Splown and Compton, and provided defenses to the suits brought by Mrs. Lovelace and Frances Holland.

On 14 February 1984 Jamestown filed a declaratory judgment action against Nationwide in the Superior Court of Meck-lenburg County, seeking a determination of the rights, duties and liabilities as between the companies under the terms of their respective policies. Judgment was entered in favor of Jamestown. Nationwide appealed, and the judgment was affirmed by an opinion of this Court reported in 266 N.C. 430, 146 S.E. 2d 410. This decision established: (1) That Nationwide’s policy affords coverage to William with respect to claims arising out of the collision, and (2) that Jamestown’s policy does not afford coverage to William and that no claims by any of the injured parties arising out of this collision are valid against Jamestown. Under this decision Nationwide took over the defense of the Holland case, settled it, and paid to the limits of its policy the judgment in the Lovelace case.

Jamestown contends that in view of the decision in the declaratory judgment action, the trial court in this case properly found Jamestown was entitled to reimbursement from Nationwide for its expenses involved in this matter for investigation, settlement, and defense of the claims against Nationwide’s insured William.

[219]*219Nationwide contends (1) the lower court erred in making certain findings of fact in its judgment based upon the evidence introduced at the trial, and (2) the lower court erred as a matter of law in failing to dismiss Jamestown’s action, in failing to adopt the findings of fact and conclusions of law and judgment tendered by Nationwide, in signing the judgment as it appears of record, and in failing to set aside the judgment as appears of record.

A careful examination of the record discloses that the material findings of fact by the trial judge are amply supported by the evidence. Findings of fact which are supported by competent evidence, even though there is evidence contra, are conclusive on appeal. Jamestown Mutual Ins. Co. v. Nationwide Mutual Ins. Co., 266 N.C. 430, 146 S.E. 2d 410; Mitchell v. Barfield, 232 N.C. 325, 59 S.E. 2d 810; Distributing Corp. v. Seawell, 205 N.C. 359, 171 S.E. 354. The assignments of error to the court’s findings of fact are overruled.

Nationwide further assigns as error the failure of the trial court to find the facts as tendered by Nationwide. Exceptions to the refusal of the trial judge to find certain facts will not be sustained when some of the findings requested are immaterial and the evidence in regard to others is conflicting, or appellant fails to introduce evidence in the record that would sustain such findings. Jamestown Mutual Ins. Co. v. Nationwide Mutual Ins. Co., supra; Pittman v. Snedeker, 264 N.C. 55, 140 S.E. 2d 740; 1 Strong’s N. C. Index 2d, Appeal and Error § 28, p. 160. Applying these rules, the record discloses no error in the court’s failing to adopt the findings of fact tendered by Nationwide.

Nationwide further contends the trial court erred as a matter of law in allowing Jamestown to recover under the subrogation provisions of Jamestown’s policy or under subrogation by operation of law. It is well settled that an insurer who wrongfully refuses to defend a suit against its insured is liable to the insured for sums expended in payment or settlement of the claim, for reasonable attorneys’ fees, for other expenses of defending the suit, for court costs, and for other expenses incurred because of the refusal of the insurer to defend. Nixon v. Insurance Co., 255 N.C. 106, 120 S.E. 2d 430; Anderson v. Insurance Co., 211 N.C. 23, 188 S.E. 642; Annot., 49 A.L.R. 2d 694 (1956); 44 Am. Jur. 2d, Insurance § 1547 (1969).

This appeal poses the question: Can the plaintiff insurance company recover sums paid out in settlement of the claims [220]*220against the insured when the defendant insurance company wrongfully refused to defend its insured? Nationwide contends not, relying on the authority of Fireman’s Fund Insurance Company and the Insurance Company of the State of Pennsylvania v. North Carolina Farm Bureau Mutual Insurance Company, 269 N.C. 358, 152 S.E. 2d 513. In Fireman’s Fund the injured party brought suit against the named insured in an automobile liability policy and against the driver of the truck owned by the named insured. The insurer in the policy defended the action on behalf of the named insured while refusing to defend it on behalf of the driver. Upon the refusal of the insurer to defend the action as to the driver, the driver called on his liability insurers, in policies which only covered liability in excess of other insurance, to defend the action. His insurers employed attorneys to defend him but withdrew upon discovering facts which excluded coverage under their policies. Driver’s insurers then brought this action against the insurer in the owner’s liability policy to recover the amount expended by them for attorney’s fees defending the driver. This Court held that judgment denying recovery was properly entered. In Fireman’s Fund the injured party was claiming in excess of the limit of the primary policy so that the driver’s defending insurers had their own interests to protect, and, in addition, each under the terms of their policies had a separate and distinct obligation to provide defense for the driver. This is not true in the present case. Under an automobile garage liability policy containing exactly the same exclusion clause as does Jamestown’s policy in this case, our Court in Allstate Insurance Co. v. Shelby Mutual Insurance Co., 269 N.C. 341, 152 S.E.

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Related

Jamestown Mut. Ins. Co. v. Nationwide Mut. Ins. Co.
176 S.E.2d 751 (Supreme Court of North Carolina, 1970)

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Bluebook (online)
277 N.C. 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamestown-mutual-insurance-v-nationwide-mutual-insurance-nc-1970.