26 N.C. App. 452 | N.C. Ct. App. | 1975
It is first contended that since plaintiff paid seven of the ten premium installments, the policy should be considered as remaining in effect for seven-tenths of the year, or 255 days, which would mean the policy continued in force until 28 September 1973, well past 28 July 1973, the date when the airplane was damaged. Plaintiff urges that even without considering the last payment, the policy should be considered as having remained in force for six-tenths of the year, or 219 days, which would mean the policy continued in effect until 23 August 1973. We disagree.
‘‘It is elemental law that the payment of the premium is requisite to keep the policy of insurance in force. If the premium is not paid in the manner prescribed in the policy, the policy is forfeited. Partial payment, even when accepted as a partial payment, will not keep the policy alive even for such fractional part of the year as the part payment bears to the whole payment. (Citation omitted.)” (Emphasis supplied.) Clifton v. Insurance Co., 168 N.C. 499, 499-500, 84 S.E. 817 (1915).
Plaintiff next argues that by the acceptance of the last two payments and its past conduct as to late payments, defendant waived its right to insist on immediate payment of the premium installments and to require a forfeiture of the policy for delay in payment. We find no merit in this contention.
With respect to the last two payments actually received by the defendant, we note that the payment sent by plaintiff on 10 July 1973 was for the premium payment due in June. Defendant had earned the full amount of that payment. Similarly, defendant had earned a portion of the payment sent by plaintiff on 27 July 1973, since, under the terms of the cancellation notice, coverage was in effect until 22 July 1973. Plaintiff was entitled to and did receive a refund amount of $35.10, which represented unearned premiums subsequent to 22 July 1973.
Turning to the question of whether defendant’s past conduct as to late payments amounted to a waiver, we note that
“Upon the failure of the named insured to pay any installment of the premium, the insurance shall cease and terminate, provided at least ten (10) days notice is mailed by the company to the named insured at the address shown in this policy stating when thereafter such cancellation shall become effective.”
All of the evidence in the case at bar shows that the defendant sent the plaintiff notice of cancellation of the policy in accordance with the above terms each time plaintiff was delinquent in the payment of premiums. In each instance the policy was reinstated only after the receipt of the necessary premiums. Defendant was in no way obliged to reinstate the policy at any time after plaintiff’s default in the payment of premiums, and, in our opinion, plaintiff may not now complain when defendant has elected to cancel the policy for the nonpayment of premiums.
Furthermore, we conclude that, having the right to cancel the policy when premiums were not paid when due, defendant clearly had the right to state the conditions under which the policy could be kept in force. Here the conditions were payment of the full unpaid balance of $191.50 by cashier’s check or money order before 22 July 1973. Plaintiff did not comply with these conditions and may not now complain.
Our Supreme Court has held that:
“ Tf after a breach of the conditions of the policy the insurers, with a' knowledge of the facts constituting it, by their conduct lead the insured to believe that they still recognize the validity of the policy and consider him as protected by it, and induce him to incur expense they will be deemed to have waived the forfeiture and will be estopped from setting it up as a defense.’ ” Perry v. Ins. Co., 132 N.C. 283, 288, 43 S.E. 837 (1903), citing Grubbs v. Ins. Co., 108 N.C. 472, 13 S.E. 236 (1891), and 23 Am. St. 62.
Here the notice of cancellation on 22 July 1973 was clear and unambiguous. Defendant in no way induced or led plaintiff to believe the policy would be kept in force after 22 July 1973 in any manner other than payment of the full unpaid balance of premiums.
. . it is not necessary for the trial judge in passing on motions for summary judgment to make findings of fact. The following from General Teamsters, Chauffeurs & Helpers U. v. Blue Gab Co., 353 F. 2d 687, 689 (7th Cir. 1965), may be instructive:
‘The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised since it would carry an unwarranted implication that a fact question was presented.’ ”
For the foregoing reasons the decision of the trial court granting defendant’s motion for summary judgment is hereby affirmed.
Affirmed.
