61 N.C. App. 721 | N.C. Ct. App. | 1983
Plaintiffs’ sole assignment of error relates to the granting of Nationwide’s motion for summary judgment. After careful examination of the present record on appeal and the record and opinion in the prior action, we affirm the award of summary judgment in Nationwide’s favor.
Plaintiffs first argue that the doctrine of res judicata does not bar their recovery for damages to the contents of their dwelling because there was no judgment on the merits in the previous action. The evidence before this Court is to the contrary.
Estoppel by judgment, or res judicata, has been defined as follows: “[W]hen a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.” Humphrey, et al. v. Faison, 247 N.C. 127, 133, 100 S.E. 2d 524, 529 (1957), quoting Armfield v. Moore, 44 N.C. 157 (1852).
In the first action against Nationwide, plaintiffs prayed for compensatory damages for the loss of their dwelling as a result of the 19 January 1978 fire and for punitive damages. At the close of plaintiffs’ evidence, the trial court directed verdict in favor of the insurance adjuster for Nationwide and in favor of Nationwide as to all claims for punitive damages. At the close of Nationwide’s evidence, a directed verdict with respect to the remaining claims in the complaint was entered in Nationwide’s favor, and plaintiffs’ action was dismissed. In its judgment, the trial court indicated
Moreover, N.C.G.S. 58476(c) requires that within sixty days after a fire loss the insured shall render to the company a sworn proof of loss. Defendant Nationwide relied upon the failure of plaintiffs to comply with this requirement as a stated basis for its motion for directed verdict at the close of all the evidence.
In North Carolina, no action may be maintained on a standard fire insurance policy unless proof of loss has been filed within the prescribed sixty-day period following the fire. [Citation omitted.] N.C.G.S. 58-180.2 allows a claimant faced with the defense of failure to file timely proof of loss to plead that such failure was for good cause and that the insurance company has not been substantially harmed in its ability to defend. Plaintiffs failed to take advantage of this statute, and did not file any pleading or introduce evidence as provided thereby. Nor do plaintiffs contend in their brief that they did so. Plaintiffs followed this course of action although the trial judge had advised their counsel that he would allow an amendment to their pleadings for this purpose. This fire loss occurred on 19 January 1978; plaintiffs were provided with forms for filing proof of loss 24 January 1978. They did not file proof of loss until 27 April 1978, more than sixty days after the loss. By so doing, with nothing else appearing, plaintiffs have failed to establish their cause against defendant Nationwide, and the court for this reason properly allowed Nationwide’s motion for directed verdict. [Citation omitted.]
Mangum v. Nationwide, supra, slip op. at 3-4. Pending the appeal of the first action against Nationwide, plaintiffs filed the present action seeking compensation for the fire damage to their personal property.
Plaintiffs have also argued that since they never raised the issue of compensation for loss of personal property in their first action, a subsequent suit on this matter could be litigated. We agree with Nationwide that plaintiffs are estopped from bringing their second action, because the claims for recovery of damages to personal and real property should have been litigated in one suit. The situation here is almost identical to Lisenbey v. Farm Bureau Mutual Ins. Co. of Arkansas, Inc., 245 Ark. 144, 431 S.W. 2d 484 (1968). The issue before the Arkansas Supreme Court involved the right of homeowners whose houses were destroyed by fire to bring successive suits upon their fire insurance policy, first to recover for the loss of the house and later to recover for the loss of its contents. The trial court held that the first suit barred the second suit. In affirming this judgment, the Arkansas Supreme Court emphasized that only one fire insurance policy had been issued; that one premium was paid to cover loss of personal and
The reasoning in Lisenbey is consistent with the general rule cited by our courts that all damages resulting from a single wrong or cause of action must be recovered in one suit. See Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822 (1940). This reasoning is also consistent with the doctrine of merger, a collateral aspect of res judicata, as applied in actions for installments of money under a single contract. See, e.g., Behr v. Behr, 46 N.C. App. 694, 266 S.E. 2d 393 (1980) (suit for arrearages in separation agreement). In Behr, this Court concluded, “Under the doctrine of merger, a party suing for the breach of an indivisible contract must sue for all of the benefits which have accrued at the time of suit or be precluded from maintaining a subsequent action for installments omitted.” Id. at 693, 266 S.E. 2d at 396. In the case sub judice, there was one action which arose from a breach of a contract to insure. Plaintiffs were correctly barred from splitting this cause of action.
Affirmed.