54 N.C. App. 170 | N.C. Ct. App. | 1981
There are no genuine issues of material fact. Thus, the one question to be resolved is whether the plaintiff or defendant is entitled to judgment as a matter of law on the undisputed facts.
We perceive plaintiffs complaint to state its claim against the defendant on two theories —(1) subrogation, and (2) unjust enrichment. Defendant, in his brief, argues persuasively against the propriety of summary judgment for plaintiff on the subrogation theory; however, his arguments, if such may be gleaned from his brief, against summary judgment for plaintiff on the theory of unjust enrichment are less persuasive.
Defendant suggests that plaintiff should have brought its action against. Stallings, the wrongdoer. Such an action would be subject to the defense of payment. See Travelers Insurance Co. v. Chalona, 293 So. 2d 498 (La. App. 1974), and G.S. § 15A-1343(d) (Cum. Supp. 1979). As was said in Fidelity Insurance Co. v. Atlantic Coast Line Railroad Co., 165 N.C. 136, 141, 80 S.E. 1069, 1072 (1914), where the insurer sought to recover from the “wrongdoer” money the insurer had paid to the insured, “It is well settled that the wrongdoer cannot be made to pay twice for the same property. When the insured obtains full satisfaction from the wrongdoer, he must account to the insurer.” (Emphasis added.) To the same effect, see United States Fidelity & Guaranty Co. v. Reagan, 256 N.C. 1, 9, 122 S.E. 2d 774, 780 (1961), where Justice Parker (later Chief Justice) wrote:
It is a firmly established general rule that an insurer who has made a payment under an erroneous belief induced*172 by a mistake of fact that the terms of the insurance contract required such payment is entitled to restitution from the payee, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund. The rule is bottomed on the equitable doctrine that an action will lie for the recovery of money received by one to whom it does not in good conscience belong, the law presuming a promise to pay. . . .
“An action to recover money paid under a mistake of fact is an action in assumpsit and is permitted on the theory that by such payment the recipient has been unjustly enriched at the expense of the party making the payment and is liable for money had and received.” Morgan v. Spruill, 214 N.C. 255, 199 S.E. 17, 19.
The record establishes that to date defendant has been paid $10,000 for a $5,000 loss. Seven thousand five hundred dollars of this payment was made by the “wrongdoer.” Clearly, if defendant is allowed to retain the $2,500 paid by the plaintiff, defendant will have been unjustly enriched in that amount at the expense of the plaintiff, and surely under the circumstances of this case the payment by the plaintiff has not caused such a change in the position of the payee that it would be unjust to require a refund. The fact that the payment by the insurance company was made before the defendant received $7,500 from Stallings is of no significance in determining whether defendant has been unjustly enriched at the expense of the plaintiff. The law as well as the contract of insurance, particularly Condition 6, presumes a promise upon the part of the defendant in this case to refund the $2,500. Summary judgment for plaintiff was proper.
Affirmed.
