*1 APPEALS COURT OF Amеrican Defender Life Ins. Co. Pearce v. only by apply sentence shall claims
preceding liability insurance. liability in- contends since defendant had
Plaintiff surance, in- pay prejudgment should be required Defendant, however, own defending was the suit its terest. involved was less than the deductible amount because the amount Therefore, was liability plaintiffs insurance claim policy. obviously The statute is liability not covered insurance. insurer, liability to claims which are defended referring claims distinguish there is no reason to between logical because insured defendant defend- an uninsured defendant аnd an against in- of the deductible amount of the ing a claim which falls short surance above,
For the reasons stated
Affirmed. concur. HILL and BECTON
Judges DEFENDER LIFE COMPANY v. INSURANCE LETA PEARCE AMERICAN No. 8210SC851 1983) (Filed 21 June military provision air- death 14— life insurance —accidental Insurance —death granted improperly craft-motion granted could be claim which relief stated a Plaintiffs where motion to dismiss dеfendant’s the trial court erred provided for double bought a life insurance husband now-deceased exceptions which created certain death but in the event accidential com- questioned military planes; had defendant’s where deceased shortly States Air he entered United pany Force; after fully replied company the deceased where the insurance covered; involving a killed in an accident the insured was and where acting member. as a crew on which he was aircraft Judge concurring. Webb Brewer, entered Judge. Order by APPEAL Court, in the Court County. Heard
July 1982 in Superior WAKE 1983. 6 June Appeals
Pearce v. American Defender *2 seeks оf cer- payment civil action wherein This policy under an insurance issued tain proceeds now-deceased husband. in was issued the face amount The $20,000 Dismemberment an “Accidental Death and of but includes $40,000 for the in the provides Agreement” This Death of the insured’s accidental death. “Acсidental event subject was made to the follow- Agreement” Dismemberment and exceptions: ing injuries not cover or agreement This does death
EXCEPTIONS: (a) indirectly or in or flight or from: travel resulting (i) of- any you pilot, of aircraft if are a species descent aircraft, ficer, giv- crew of such are or other member instruction, or or have any training kind of ing receiving or while in or flight, aboard such aircraft any duties whatsoever (ii) or for or naval operated the aircraft is maintained (b) naval, any or or allied military, air service purposes, war, any country at .... thereof branch Air Force the United States the insured entered training School. The insured’s training Navigation at The began time. After flying completion 250 hours approximately involved School, the insured anticipated training Navigation of his beginning Air Force. After his train- while flying further the extent of his concerned about the insured became ing, by defendant. insured asked issued coverage the extent of defendant agent inquire an in the insured’s situation. On the policy’s to defendant: following letter sent agent Pearce, Pol. No. 82-0058 Allen Douglass RE: Gentlemen: in 1968 signed application
Lt. Pearce now fully or not to whether he is is concerned as he in The Nav- Lt. enrolled He is a 2nd he is USAF. Mather, which is a the T-29 flying He is School at Ca. igation 6 hours so far and He has flown for the Nav School. trainer the next during hours fly approximately expects any not have idea as he does graduation After months. will assigned. he plane COURT OF APPEALS Pearce v. American Defender Life Ins. Co.
youWill check I please over his and advise us. covered, however, fully feel sure that he is to make him feel appreciate at ease and his policy protection and its —he would like to have it spelled out over the of one of signature your executives. your
Thanks for very usual service. prompt 12 May On the insured received the letter following from defendant:
Policy Number: 82-0085
Dear Mr. Pearce: *3 4, 1971,
We have received Mr. L. C. Dickerson’s letter of your above numbered policy. $20,000.00 Your policy was a College Defender Program $40,000.00 with a Accidental Death and Dismemberment Rider, $10,000.00 Insurability Option. Guaranteed pro- Your words, not gram does contain a war clause. other the basic is in full program force and effect regardless your occupa- tion. The Accidental Death Rider portion would payable your should death occur as the result However, direct act of war. to addition the basic policy, this Accidental Death Rider payable would also be death occur while in the Armed Forces but not as the result of an act of war.
Should this not fully your letter answer or if questions information, you would like additional please write to us or call us collect.
Sincerely yours, (Miss) Wynne Linda Policyowners’ Service The insured made no further and paying continued the premiums July on the policy. On the insured was killed involving military accident aircraft which he was $20,000 acting as a crew member. paid plaintiff Defendant has death, a result of the insured’s but pay has refused to the addi- $20,000 tionаl due in case of accidental death. OF COURT v. American Defender
Pearce February alleging filed a plaintiff 25On nine of these made allegations, above facts. On the basis contract unfair trade ranging simple claims for relief $20,000 her the the court award prayed Plaintiff practices. оwing said to be under treble balance attorneys’ practices fees under the unfair trade damages and fraud, theory theory, punitive damages actual and under of the action to defendant. and to tax the costs court, for pur- counsel defendant moved the April On 12(b)(6) of the North Pro- suant tо Rule Carolina Rules Civil for plaintiffs Complaint cedure failure state a claim granted. hearing which relief could be on this motion July held on 9 1982. From an order mo- defendant’s 12(b)(6), tion to dismiss under hearing, Rule entered after plaintiff appealed. Akins, Mann, Mercer, Hartzell, Pike Jerome J.
plaintiff-appellant. Howard, Reynolds Ted R. Reynolds, for defendant- appellee.
HILL, Judge. briefs, In their the parties state the following versions of the *4 on question presented appeal: [W]hether,
Plaintiff: assuming accuracy the of plaintiffs
allegations, defendant has acted wrongfully. Defendant: such action [referring May, 1971 [W]hether of
exchange can be construed as placing letters] within the covеrage of a life insurance risks not originally against. in no
There about dispute the facts of this case. The sole issue in the case is whether the insured’s death is covered under defendant, certain terms of a life issued policy, provide the of to the beneficiary event of the insured’s accidental death. The resolution of this issue depends upon the construction and effect the let- ters, above, insured, set out exchanged by the through agent, and defendant. 665 App.]
N.C. Ins. Co. Pearce v. American Defender Life impression The case a factual situation of first presents of say urged We cannot the constructions jurisdiction. this is limited a con- us the is correct. Our review upon parties for the court to dismiss sideration whether it error trial state a which relief plaintiffs upon for failure to claim Complaint was. granted. could be We hold that it motion for failure to ruling complaint оn a to dismiss test granted, ap a claim which relief can be to be
state whether a set of facts plied by complaint alleges the court to some relief. Carolina Builders plaintiff which would entitle 444, Inc., AAA 364 Drywall, v. App. 43 259 S.E. 2d Corp. N.C. 221, (1979); Yates v. 264 S.E. 798 City Raleigh, 46 N.C. 2d App. (1980). sufficiency of a complaint For purposes testing 12(b)(6), allegations under con withstand motion liberally therein are construed treated true. tained Shoff Industries, Co., 42 W. B. Construction Lloyd Inc. v. App. ner N.C. denied, 296, 50, 259, rev. 259 S.E. 301 disc. S.E. 2d 2d N.C. (1979). A to withstand a motion to dismiss complaint is sufficient on the appears bar to claim plaintiffs when no insurmountable Industries, W. Lloyd Inc. v. B. the complaint. face of Shoffner Miller, Co., Leasing v. Corp. United N.C. supra; Construction denied, 374, rev. 267 S.E. disc. N.C. S.E. 2d App. (1980). ap not be unless it A dismissed 2d 685 facts could be certainty proved that no state of that pears to a him to relief. Yates v. claim would entitle support generally S.E. 2d at 800. See 2A Raleigh, City supra (1983). 12.08 Federal Practice Moore’s in their respective considerable effort parties expend Both of let- exchange premise from the proceeding arguments May of 1971 somehow broadens ters law. Without and contract agency attendant
creating problems contentions, reаding our of plain- of these merits passing to our satisfac- therein establishes the letters Complaint tiffs least, has, no insurmount- very at the pleaded to her claim. able bar *5 letter, to the insured written behalf May
defendant, in armed the insured specifically states aircraft, forces, anticipating on an crew member flying as a defendant, requests The letter aircraft. to other assignment later COURT OF APPEALS
Pearce v. American Defender Life Ins. Co. facts, on the basis of these to advise the insured as to the extent of his coverage The letter recited the insured’s name and policy number. The letter also asks that the requested аdvice be out over spelled signature of one of the executives of defendant insurance company.
Defendant responded the insured in a letter dated May 1971. The response letter said that “the unequivocally basic is in program full force and effect regardless your ocсupa- tion.” The response letter further stated that the Accidental Death Rider in the policy would be if the payable insured’s death in occurred while the armed forces. The letter said that the Ac- cidental Death Rider payable would be if the insured’s death was the result of an act of war.
There is no mistaking May nature of the 4 1971 letter to no defendant and misunderstanding asked. Defend- ant was of the entry notified insured’s into the Air Force serving military fact that he would be as a crew member on a air- Nevertheless, craft. response letter of 12 1971 did not say policy precluded payment Aсcidental Death Rider should insured’s death occur while he was engaged which occupation, involved considerable flying as a crew military member on a aircraft. citing
Without them as our controlling, research has dis two closed cases where accidental death benefits were held be in situations similar to the now payable one before us. In Schifter Association, v. Commercial Travellers’ Mutual Accident 183 Misc. aff’d, 50 N.Y.S. 2d Div. App. N.Y.S. 2d 408 (1944), the military insurance contract contained aviation and ex similar to those in the ceptions present case. The Accident Association attached an endorsement to the certificate Schifter issued to the membership membership said that military in the Association covered of those training “regardless except any claims where provisions arising changed occupation has a hazardous or entered [the insured] fоrces of the Nation in time of war.” 50 N.Y.S. 2d at the armed 377. The turned the construction Schifter membership certificate as modified the endorse ment attached. The court found that the insurer knew known that involved the of air training possibility have *6 667 APPEALS OF COURT American Defender Pearce v. no obligation insurer had fоund that the The court also
training.
so,
but,
by it.
bound
done
having
the endorsement
to issue
548,
Co.,
Insurance
155 Tex.
Trahan v.
Southland Life
(1956),
of-
policy
a life
rejected
the insured
2d 753
S.W.
riders, one
two aviation
it contained
by defendant because
fered
flight.
civilian
covering
the other
military flight and
covering
even
cоverage,
full
Air Force and wanted
was in the
the riders
removed one of
company
flying.
while
The insurance
that
The Trahan court said
purchased
policy.
the insured
riders,
company
two
when the
one of the
the failure
remove
refusal, created an am-
for the insured’s initial
knew of the reason
against
construed
properly
in the contract which was
biguity
(1982).
41:555,
41:566
Insurance
company. See Couch
§§
consistently
plain
held that
courts have
North Carolina
ef-
policy
given
of an insurance
must be
unambiguous terms
See,
Duke v. Mutual
accordingly.
e.g.,
enforced
policy
fect and
244,
187,
denied,
Cо.,
210 S.E. 2d
reh.
Insurance
286 N.C.
Life
—
—
(1974).
exist,
just
it is
ambiguities
Where
S.E. 2d
N.C.
in-
to be resolved
favor of the
they
are
as well-established
Mote,
See,
Whether within its is a in the insured’s death resulting permit review will us the limited of our scope Assoc, Corp. Raintree Homeowners v. Raintree only answer. We hold plaintiffs Complaint does state a claim which, proven, relief if would sustain а in her favor. *7 The order of the trial court defendant’s motion to dismiss is therefore vacated and the cause remanded for further proceedings.
Vacated and remanded. Judges and BECTON concur. WEBB Judge concurring. WEBB
I concur. I believe the majority correct reversing judgment court. I superior believe the plaintiff has made allegations which if proven would estop deny- ing If the plaintiff can prove after an deceased the defendant sent the let- deceased, ter of 12 1971 to the a jury could conclude the deceased relied on this letter and buy did not insurance which would have him for an accidental death while flying a military aircraft. This would support a judgment of estoppel. ASSOCIATION, INC., FALCONE, RAINTREE HOMEOWNERS and LARRY L. Similarly Individually, v. RAIN Behalf of Other Persons Situated CORP., Corporation TREE
No. 8226SC821 (Filed 1983) 21 June 1. Rules Civil Procedure 56.1— motion to summary dismiss converted into judgment motion —timeliness of affidavits Where summary defendant filed a Rule mоtion judgment and a 12(b)(6) relief, Rule motion to dismiss for failure to state a claim for and the 12(b)(6) Rule motion to dismiss was summary judgment converted into one for by the court’s consideration of pleadings, matters outside the the trial court did not considering err in affidavits summary filed defendant after the 12(b) that, 12(b)(6) provides motiоn since Rule whenever a Rule mo- summary is treated as judgment, a motion for parties shall be opportunity” materials, “reasonable present pertinent objections situation, germane timeliness are thus not such a proper and since remedy would have been a motion for continuance or pro- additional time to duce evidence.