Rouse v. Williams Realty Bldg. Co., Inc.

544 S.E.2d 609, 143 N.C. App. 67, 2001 N.C. App. LEXIS 219
CourtCourt of Appeals of North Carolina
DecidedApril 17, 2001
DocketCOA00-209
StatusPublished
Cited by16 cases

This text of 544 S.E.2d 609 (Rouse v. Williams Realty Bldg. Co., Inc.) 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
Rouse v. Williams Realty Bldg. Co., Inc., 544 S.E.2d 609, 143 N.C. App. 67, 2001 N.C. App. LEXIS 219 (N.C. Ct. App. 2001).

Opinions

TIMMONS-GOODSON, Judge.

Federal Insurance Company (“Federal”) appeals from an award of summary judgment for Thomas M. and Sandy Rouse (“plaintiffs” or “the Rouses”) on the question of whether they were entitled to receive the full limit of liability under a policy insuring their residence against loss by fire while the home was under construction. Having found no error of law, we affirm the ruling of the trial court.

Plaintiffs contracted with Williams Realty & Building Company (“Williams Realty”) for the construction of a residence at 2745 Lakeview Drive in Raleigh, North Carolina. Pursuant to the agreement, an insurance agent for Williams Realty procured Federal policy number 2911-95-15 on behalf of the Rouses to cover the residence against fire and other perils while it was under construction. The policy provided that the limit of liability for Coverage A, the type of coverage applicable to the residence, was $2,369,000. The initial term of the policy was from 15 November 1996 to 15 November 1997; however, on 3 October 1997, Federal renewed and extended the policy through 15 November 1998. It is undisputed that the Rouses paid all premiums due under the policy and that the policy was in full force and effect when plaintiffs’ claim arose.

Williams Realty had nearly completed construction of the residence when it was totally destroyed by fire on the morning of 19 December 1997. A Federal claims adjuster investigated the damage and determined that plaintiffs suffered a total loss worth $2,406,809. Plaintiffs, therefore, demanded payment in the amount of $2,369,000, the limit of liability under the policy. However, citing the “AMOUNT OF INSURANCE” provision set forth in an endorsement to the policy, Federal claimed that the limit of liability was “provisional” and that the actual amount of coverage afforded plaintiffs at the time of the loss was $1,774,381, which amount Federal tendered.

The Rouses brought an action against Williams Realty for negligence, breach of contract, and breach of fiduciary duty in failing to procure adequate insurance coverage for the residence. The Rouses [69]*69also filed a cross-claim against Federal, who had been joined as a plaintiff in the original action, alleging breach of contract for failing to pay “the full amount due under the policy.” Thereafter, plaintiffs voluntarily dismissed their claims against Williams Realty without prejudice. The Rouses and Federal then filed cross-motions for summary judgment, and following a hearing on the motions, the trial court entered judgment for plaintiffs. The court ordered Federal to pay plaintiffs “the amount of $2,369,000, the limit of liability under the insurance policy at issue in this action, with an offset for the $1,774,381 previously paid; making the total amount currently due $594,619, plus interest at the legal rate from March 17, 1998, until paid.” Federal gave timely notice of appeal to this Court.

By its sole assignment of error, Federal contends that in awarding summary judgment for plaintiffs, the trial court erroneously construed the provisions of the policy. Federal argues that under the terms of the policy, the amount of coverage afforded plaintiffs for the loss of their residence was $1,744,381. Therefore, Federal maintains that having tendered the total amount due under the policy, Federal was entitled to summary judgment. We cannot agree.

Summary judgment is an appropriate disposition if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). The party moving for summary judgment has the burden of demonstrating the absence of any factual issue of consequence. N. C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 532, 530 S.E.2d 93, 94 (2000). This can be done by: “(1) proving that an essential element of the opposing party’s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense.” Id. at 532, 530 S.E.2d at 94-95.

“An insurance policy is a contract between the parties, and the intention of the parties is the controlling guide in its interpretation.” Bank v. Insurance Co., 49 N.C. App. 365, 370, 271 S.E.2d 528, 531 (1980), rev’d on other grounds, 303 N.C. 203, 278 S.E.2d 507 (1981). The parties’ intent may be derived from the language employed in the policy. Kruger v. State Farm Mut. Auto. Ins. Co., 102 N.C. App. 788, 789, 403 S.E.2d 571, 572 (1991). Thus, when presented with policy language that is explicit, “[o]ur courts have a ‘duty to construe and [70]*70enforce [the policy] as written, without rewriting the contract or disregarding the express language used.... The duty is a solemn one, for it seeks to preserve the fundamental right of freedom of contract.’ ” Id. (quoting Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380-81, 348 S.E.2d 794, 796 (1986) (citation omitted)). Judicial construction is appropriate “only where the language used in the policy is ambiguous and reasonably susceptible to more than one interpretation,” Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 94, 518 S.E.2d 814, 816 (1999), disc. review denied, 351 N.C. 350, 342 S.E.2d 205 (2000), in which event, “this Court will resolve the ambiguity against the insurance company-drafter, and in favor of coverage,” Ledford v. Nationwide Mutual Ins. Co., 118 N.C. App. 44, 51, 453 S.E.2d 866, 869 (1995).

Moreover,

“[w]hen the policy contains a definition of a term used in it, this is the meaning which must be given to that term wherever it appears in the policy, unless the context clearly requires otherwise. ... In the absence of such definition, nontechnical words are to be given a meaning consistent with the sense in which they are used in ordinary speech, unless the context clearly requires otherwise. ... If such a word has more than one meaning in its ordinary usage and if the context does not indicate clearly the one intended, it is to be given the meaning most favorable to the policyholder, or beneficiary, since the insurance company selected the word for use.”

Kruger, 102 N.C. App. at 790, 403 S.E.2d at 572 (quoting Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970) (citations omitted)). In determining the meaning of a term,

resort may be had to other portions of the policy and all clauses of it are to be construed, if possible, so as to bring them into harmony.

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Rouse v. Williams Realty Bldg. Co., Inc.
544 S.E.2d 609 (Court of Appeals of North Carolina, 2001)

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Bluebook (online)
544 S.E.2d 609, 143 N.C. App. 67, 2001 N.C. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rouse-v-williams-realty-bldg-co-inc-ncctapp-2001.