Lead Opinion
Barrett L. Crawford, trustee in the bankruptcy of Jeter Edward Greene (Greene), and Greene (collectively Plaintiffs) appeal a 22 March 2000 order granting summary judgment in favor of Commercial Union Midwest Insurance Company (Defendant) and a 24 May 2000 order denying Plaintiffs’ motion to reconsider summary judgment.
In January 1995, Greene approached several insurance companies and requested quotes on homeowners insurance. On 17 January 1995, Greene obtained a favorable quote for insurance on his house from Benfield Insurance Enterprises (Benfield Insurance). Gerald Benfield (Benfield), an agent for Benfield Insurance, filled out the insurance application for Greene: Benfield would ask questions and then fill in Greene’s answers
On 31 January 1995, Greene’s house was destroyed by a fire that started when a kerosene heater presumably ignited curtains in its vicinity. Greene duly gave notice of his loss and submitted proof of loss statements to Defendant. While his claim was being investigated, Greene received roughly $3,000.00 in living expenses from Defendant. On 24 April 1995, however, Defendant denied Greene’s claim in its entirety on the grounds that Greene had made material misrepresentations in his insurance application and proof of loss statements.
On 29 January 1998, Plaintiffs filed a complaint against Benfield, Benfield Insurance, and Defendant. On 17 March 1998, Plaintiffs filed an amended complaint asserting claims for breach of contract and bad faith against Defendant and for negligence against Benfield as the agent of Benfield Insurance and Defendant. Defendant filed a motion for summary judgment on 4 November 1999 on the basis that material misrepresentations made by Greene on his insurance application voided the homeowners policy. The trial court granted the motion on 22 March 2000. On 3 April 2000, Plaintiffs filed a motion to reconsider summary judgment, which the trial court denied in an order filed 24 May 2000, thereby dismissing all of Plaintiffs’ claims against Defendant. Plaintiffs gave their notice of appeal on 5 June 2000.
The issues are whether: (I) an insurance company can void a homeowners insurance policy solely on the grounds the insured made material and false representations on the policy application; and (II) an insured’s failure to disclose on a homeowners insurance application the existence of encumbrances on the property to be insured is a material misrepresentation, as a matter of law.
I
Defendant argues it is permitted to void a homeowners insurance policy upon a showing the applicant for that policy provided false and material representations in the policy application. Plaintiffs argue the insurance company can void the policy only if it can also show that the misrepresentations were willful and knowing. We agree with the Plaintiffs.
The General Assembly has promulgated N.C. Gen. Stat. § 58-44-15 specifically regulating fire insurance policies.
We acknowledge this Court has held a material misrepresentation in the application of a fire/homeowners policy is governed by section 58-3-10 and thus is void upon a showing the misrepresentation is material, regardless of whether the misrepresentation was willful or knowing. Metropolitan Property and Cas. Ins. Co. v. Dillard,
Because there was no evidence offered at the summary judgment hearing that Greene knowingly or willfully made any misrepresentations to Benfield Insurance about encumbrances on his property, summary judgment cannot be sustained for Defendant.
II
In any event, summary judgment must be reversed because the evidence shows a genuine issue of fact on whether the failure to provide the requested information (listing of deeds of trust) was material.
Defendant contends our Supreme Court has held that encumbrances (including deeds of trust) are material as a matter of law and the failure to disclose this information on a homeowners insurance application necessarily voids that policy. The decisions relied upon by Defendant, holding the insurance policies void for failure to disclose encumbrances
Instead, a “representation in an application for an insurance policy is material ‘if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract, or in estimating the degree and character of the risk, or in fixing the rate of the premium.’ ” Metropolitan,
Plaintiffs further assign error to the granting of summary judgment for Defendant on Plaintiffs’ bad faith and unfair and deceptive trade practices claims. There is no argument or authority in Plaintiffs’ brief to support this assignment of error and thus it is deemed abandoned. See N.C.R. App. P. 28(b)(5). Plaintiffs finally, argue the trial court erred in denying several of their discovery requests. We have reviewed each of these arguments and see no abuse of discretion by the trial court. See Wagoner v. Elkin City Sch. ’ Bd. of Educ.,
Reversed and remanded.
Notes
. Benfield claims to have specifically asked Greene if there were any mortgages on the property to be insured and that Greene responded “No.” Greene, however, asserts he did disclose the first of the three deeds of trust.
. The summary judgment did not dispose of Plaintiffs’ claims against Benfield and Benfield Insurance, thus presenting this Court with an interlocutory appeal. We are also faced with the issue of the timeliness of Plaintiffs’ appeal. Without deciding whether the appeal affects a substantial right, as contended by Plaintiffs, or whether it was timely filed (and assuming it was not), we grant certiorari and address the merits of this appeal. See N.C.R. App. P. 21(a)(1) (right of appellate court to grant certiorari if appeal not timely or no right of appeal from an interlocutory order exists); Coleman v. Interstate Cas. Ins. Co.,
. A homeowners policy provides, among other coverages, insurance against fire loss and thus section 58-44-15 is applicable to homeowners policies.
. Section 58-176 provided in pertinent part:
This entire policy shall be void if the insured has concealed or misrepresented ... any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in the case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.
N.C.G.S. § 58-176 (1899). This statute, governing fire insurance policies, was amended in 1945 to add the requirement that a material misrepresentation or concealment be willful. 1945 N.C. Sess. Laws ch. 378, § 1. The pertinent provisions of section 58-176 have not been modified since 1945, although the statute has been re-codified as section 58-44-15.
. When there is a conflict in the opinions of this Court and opinions of our Supreme Court, we are bound by the Supreme Court opinion. See Mahoney v. Ronnie’s Rd. Serv.,
. We also reject Defendant’s argument that Bryant v. Nationwide Mut. Fire Ins. Co.,
Dissenting Opinion
Judge dissenting.
I respectfully dissent from the majority opinion because Plaintiffs’ notice of appeal from the trial court’s 22 March 2000 order granting Defendant’s motion for summary judgment was not timely filed, and, therefore, Defendant’s motion to dismiss Plaintiffs’ appeal should be granted. Further, I dissent from the majority’s holding that N.C. Gen. Stat. § 58-3-10 does not apply to the application process for a fire/homeowners insurance policy. Finally, I dissent from the majority’s determination that genuine issues of fact exist concerning the materiality of the misrepresentations made by Greene on his insurance application.
The record shows that the trial court entered summary judgment in favor of Defendant on 22 March 2000. On 3 April 2000, Plaintiffs filed their “Motion to Reconsider Summary Judgment.” Rule 3 of the North Carolina Rules of Appellate Procedure requires that an appeal from a judgment or order in a civil action must be “taken within 30 days after its entry.” N.C. R. App. P. 3(c) (2001). The running of this thirty-day period to file and serve notice of appeal is tolled by any one of the following timely motions: (1) a motion for judgment notwithstanding the verdict under N.C. R. Civ. P. 50(b), (2) a motion under N.C. R. Civ. P. 52(b) to amend or make additional findings of fact, (3) a motion under N.C. R. Civ. P. 59 (Rule 59) to alter or amend a judgment, or (4) a motion under Rule 59 for a new trial. N.C. R. App. P. 3(c)(l)-(4).
In this case Plaintiffs’ “Motion to Reconsider Summary Judgment” does not properly recite the rule number under which it is being sought. However, in denying Defendant’s 21 August 2000 motion to dismiss
To qualify as a Rule 59(e) motion within the meaning of Rule 3, the motion must be based on one of the grounds listed in Rule 59(a). Smith v. Johnson,
Because Plaintiffs’ motion to reconsider is not a proper Rule 59 motion, the time to file an appeal from the 22 March 2000 order was not tolled. Therefore, Plaintiffs’ 5 June 2000 notice of appeal from the order was not timely and must be dismissed.
However, the majority has chosen to address the merits of Plaintiffs’ appeal, and, in so doing, the majority holds that N.C.G.S. § 58-3-10 does not apply to applications for fire/homeowners insurance policies. I disagree with the majority’s conclusion on this issue.
N.C.G.S. § 58-3-10 states:
All statements or descriptions in any application for a policy of insurance . . . shall be deemed representations and not warranties, and a representation, unless material fraudulent, will not prevent a recovery on the policy.
N.C. Gen. Stat. § 58-3-10 (1999) (emphasis added). By its terms, N.C.G.S. § 58-3-10 applies to all applications for insurance, and is not precluded from applying in the context of an application for a fire/homeowners policy. However, the majority construes our Supreme Court’s decision in Hayes v. Ins. Co.,
Rather, I believe that this issue has never been squarely addressed by the Supreme Court and that this Court’s decision in Metropolitan Property and Cas. Ins. Co. v. Dillard,
Further, I disagree with the majority’s conclusion that there are genuine issues of material fact as to the materiality of Greene’s misrepresentations concerning the number of mortgages on the property. Therefore, I respectfully dissent and would affirm the trial court’s entry of summary judgment.
. Since Plaintiffs were not seeking a new trial, this determination by the trial court was necessarily a determination that Plaintiffs’ motion to reconsider was a proper motion to alter or amend the judgment under Rule 59(e).
. Further, although Plaintiffs have timely appealed from the denial of their “Motion to Reconsider Summary Judgment,” having determined that it does not qualify as a Rule 59(e) motion, and because there are no other provisions for motions for reconsideration in our Rules of Civil Procedure, the motion to reconsider was properly denied. In addition, Plaintiffs did not properly assign error to the trial court’s denial of their motion to reconsider. See N.C. R. App. P. 10(c).