TOPSAIL REEF HOMEOWNERS ASSOCIATION, Plaintiff-Appellant, v. ZURICH SPECIALTIES LONDON, LIMITED, a/k/a Zurich Re (U.K.) Limited; Elliston, Defendants-Appellees, Ward-THG, Defendant.
No. 00-2115
United States Court of Appeals, Fourth Circuit.
Argued April 5, 2001. Decided May 25, 2001.
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
PER CURIAM.
Robert Leon Buckner seeks to appeal the district court‘s orders (1) finding that he failed to establish excusable neglect under
Buckner also challenges the denial of his Rule 35 motion. We dismiss this portion of the appeal for lack of jurisdiction.
The district court‘s order denying Rule 35 relief was entered on the docket on February 20, 2001; the ten-day appeal period expired on March 2, 2001. Under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), Buckner filed his notice of appeal on March 9, 2001. Because Buckner failed to file a timely notice of appeal or to obtain an extension based upon excusable neglect, we dismiss this portion of the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART.
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit JUDGES.
OPINION
PER CURIAM.
Topsail Reef Homeowner‘s Association (Topsail) initiated this civil action against Zurich Specialities (Zurich), an insurer, and Elliston, an independent consulting firm, for damages arising out of Zurich‘s breach of an insurance policy. Following a jury trial in the United States District Court for the Eastern District of North Carolina, Southern Division, the jury awarded Topsail $362,853.60 in damages. Topsail appeals from the district court‘s orders granting summary judgment as to Zurich and Elliston on Topsail‘s unfair and deceptive trade practices claims, dismissing Elliston as a defendant to the action, granting summary judgment in favor of Zurich as to Topsail‘s bad faith refusal to settle claim, and denying Topsail‘s motion for a new trial on the contract claim. Finding no reversible error, we affirm.
I.
A.
Because this is an appeal from an entry of summary judgment, we accept the facts as alleged by Topsail as true and view the permissible inferences to be drawn from the underlying facts in the light most favorable to Topsail, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On May 4, 1996, Topsail renewed its insurance policy with Zurich, whereby Topsail Reef Condominiums, a beach-front condominium consisting of eight multi-unit residential buildings, was insured against losses resulting from wind and wind-driven rain in amounts up to $4.4 million per occurrence. On July 12, 1996, Hurricane Bertha struck Topsail Island, resulting in damage to Topsail Reef Condominiums. After receiving a property loss notice from Topsail, Zurich retained Ward-THG (Ward) as a claim adjuster. On September 20, 1996, Topsail submitted a proof of loss claim to Zurich for approximately two million dollars. On the same day, Zurich agreed to pay the total amount of the claim, and checks totaling that amount were issued within seven days.
On August 23, 1996, Topsail contracted with Hale Construction (Hale) to perform the restoration work. On September 6, 1996, while repairs from Hurricane Bertha were still in progress, Hurricane Fran struck Topsail Island, resulting in additional damage to Topsail Reef Condominiums. Zurich retained Ward to adjust this loss and instructed Ward to avoid duplicate payments for repairs that Zurich had already paid but had not yet been completed after Hurricane Bertha and before Hurricane Fran. To that end, in November of 1996, Ward began preparing an estimate of the scope of loss for the combined damage resulting from Hurricanes Bertha and Fran. At the same time, Hale began preparing its own estimate for Topsail‘s use. Ultimately, Hale estimated approximately $500,000 more in hurricane-related damage than did Ward.
On March 25, 1997, Zurich hired Elliston to monitor the claim process. Elliston, in turn, hired Loss Control Recovery (LCR) to represent Zurich in the claim adjustment process. Zurich then arranged for LCR, Ward, Topsail and Hale to meet on April 8, 1997 for the purpose of reconciling the differences in estimates.
On May 29-30, 1997, Ian Scott, a representative of Zurich, visited Topsail‘s repre-
On June 11, 1997, Topsail submitted to Zurich an incomplete handwritten claims summary, purportedly based upon a reconciliation of the draft Ward estimate and the Hale estimate.1 Topsail‘s claims summary of June 11, 1997 provided for an initial claim for both hurricanes of $3,823,201.
On August 28, 1997, Topsail submitted a claims summary that included most of the supplemental items that were excluded from the June 11th summary. In the August summary, Topsail added the supplemental claims to the $3,823,201 figure from the June 11th summary, subtracted the two million dollars that had already been paid for Hurricane Bertha, and arrived at an ultimate claim of $2,274,245.90 for losses related exclusively to Hurricane Fran.2 Thus, for the combined damage resulting from Hurricanes Bertha and Fran, Topsail sought over four million dollars.
On September 19, 1997, Elliston responded on behalf of Zurich to Topsail‘s submitted claims summaries by disputing various portions of the claims summaries as including repairs outside the scope of the insurance policy. First, Elliston noted that Topsail had not properly reconciled the Ward and the Hale estimates. Additionally, Elliston contended that the submitted claims summary included non-hurricane related damage. Elliston also requested documentation for specific line items and specifically informed Topsail that it could not finalize the claim until Topsail provided Zurich with the contracts that Topsail entered into with Hale. Finally, Elliston deducted amounts for duplications between the two hurricanes and for unreasonable prices. Elliston attached an interim proof of loss in the amount of $162,607.38, which represented the undisputed amount Zurich owed to Topsail without further documentation.
On September 29, 1997, Topsail‘s president sent Elliston a letter, in which Topsail refused to provide the requested documentation and information, noting that all documentation previously had been provided. Topsail also refused to address Zurich‘s other outlined concerns.
B.
On February 24, 1998, Topsail initiated suit against Zurich, Ward, and Elliston in the North Carolina General Court of Justice, Superior Court Division.3 Topsail alleged bad faith refusal to settle and unfair and deceptive trade practices arising out of Zurich‘s failure to pay the full amount of the Hurricane Fran claim, as submitted by Topsail in its June and August claims summaries. The case was removed to the United States District Court for the Eastern District of North Carolina pursuant to diversity jurisdiction.
On May 28, 1999, Zurich and Elliston jointly moved for summary judgment on
Topsail filed an amended complaint, alleging only a breach of contract claim against Zurich arising from Zurich‘s alleged breach of the insurance policy. A jury trial commenced on April 4, 2000, and Topsail sought monetary damages in the amount of $723,707.4 On April 10, 2000, the jury returned a verdict finding Zurich liable for breach of the insurance policy, but it awarded Topsail only about half the amount sought, $361,853.50. On April 20, 2000, Topsail moved for a new trial on the issue of damages. On May 2, 2000, Topsail moved to vacate the district court‘s previous order granting summary judgment in favor of Elliston and Zurich on the unfair and deceptive trade practices claim and the bad faith refusal to settle claim. On July 12, 2000, the district court denied Topsail‘s motions. On August 11, 2000, Topsail filed a notice of appeal with this Court.
On appeal, Topsail alleges that the district court erred by granting summary judgment in favor of Zurich and Elliston as to Topsail‘s unfair and deceptive trade practices claim, by granting summary judgment in favor of Zurich and Elliston as to Topsail‘s bad faith refusal to settle claim, and by excluding evidence related to Topsail‘s alleged authority to settle its own claim. We address each argument in turn.
II.
Topsail first contends that the district court erred by entering summary judgment in favor of Zurich as to Topsail‘s claim that Zurich violated North Carolina‘s version of the Unfair and Deceptive Trade Practices Act (UDTPA). See
To establish a claim under the UDTPA, Topsail must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs. See
What is an unfair or deceptive trade practice usually depends upon the facts of each case and the impact the practice has in the marketplace.... The concept of “unfairness” is broader than and includes the concept of “deception.” A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.
Id. at 621, 374 S.E.2d 385 (citations omitted).
Topsail points to three types of conduct to argue that material issues of fact exist as to whether Zurich violated the UDTPA. As discussed below, however, the evidence with respect to each of Topsail‘s allegations does not support a finding that Zurich‘s actions in negotiating the claim settlement with Topsail were in any way inherently unfair, unscrupulous, immoral, or otherwise injurious to consumers. Therefore, the district court did not err by resolving Topsail‘s UDTPA claim in favor of Zurich as a matter of law.
A.
Topsail first argues that Zurich, through Elliston, misrepresented the deductible due under the policy in violation of
Topsail‘s insurance policy contains a schedule of insured values that are used to calculate the deductibles. The schedule provides that the deductible is 2% of the value of the building. It establishes a value of $500,000 per building; there are eight buildings, which makes the deductible $10,000 per building or $80,000 per occurrence.
Contrary to this schedule, Elliston informed Topsail that the deductible per occurrence was $150,000. Elliston‘s mistake in computing the deductible derived from a memorandum from Topsail‘s insurance agent, Jardine Southern Risk, in which Jardine noted that the deductible was calculated using the total insured value of each building, including excess values. Attached to the memorandum was a Building Schedule, which set forth the total insured values, including excess values, of each building. It establishes a value of over $900,000 per building, making the deductible approximately $18,000 per building or $150,000 per occurrence.
As Zurich concedes, Elliston‘s computation of the deductible pursuant to the Jardine memorandum was erroneous because the Building Schedule attached thereto was not part of the insurance policy. Zurich argues, however, that the facts underlying the misrepresentation compel the conclusion that the misrepresentation was the result of a reasonable misunderstanding and was not intentionally deceitful. We agree.
We note that, according to North Carolina law, a negligent misrepresentation as to a policy term is sufficient to establish an UDTPA claim, and good faith or ignorance of falsity is not a defense to an action under
The Jardine memorandum explicitly provided that the deductible was to be calculated using the excess values, and the Building Schedule established the relevant values. Topsail does not refute that the Jardine memorandum and Building Schedule were reasonable bases to rely upon in calculating the deductible. Nor does Topsail allege facts which, if true, would permit an inference that Elliston‘s computation of the deductible was otherwise deceitful or unfair. Additionally, Topsail was not harmed by the misrepresentation. Thus, the district court was correct in determining that, as a matter of law, this misrepresentation is insufficient to establish an UDTPA claim.
B.
Topsail next argues that a material issue of fact exists as to whether Zurich failed to negotiate the settlement of the claim in good faith, thereby precluding summary judgment in favor of Zurich as to its liability under the UDTPA. In Gray v. North Carolina Ins. Underwriting Ass‘n, 352 N.C. 61, 529 S.E.2d 676 (N.C.2000), the North Carolina Supreme Court held that an insurance company violates the UDTPA by “[n]ot attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” Id. (quoting
Although Topsail contends that Gray controls our resolution of this issue, a brief discussion of Gray illuminates why it is inapplicable. In Gray, the insurer issued a commercial windstorm and hail policy of insurance covering the Tower Circle Motel, which was located in the Village of Buxton on Hatteras Island. The policy insured the Tower Circle Motel against windstorm and hail damage but not against damage arising from flooding or rain.
On August 31, 1993, Hurricane Emily struck the Outer Banks and caused extensive damage to Hatteras Island, including the Tower Circle Motel. Plaintiffs timely filed a claim under their policy with the insurer for the wind damage to their property. The insurer‘s claim adjuster estimated the amount of damage caused to the insured property by wind. The claim adjuster‘s estimates later were corroborated in large part, but the insurer refused to pay the claim. See id. at 678-79. Under these facts, the North Carolina Supreme
Unlike in Gray, Zurich reasonably questioned the validity of Topsail‘s estimates because those estimates were not substantially corroborated and did not accurately represent hurricane damage. First, Topsail improperly reconciled the Hale and Ward estimates. Ward‘s estimate had been $3.7 million, whereas Hale‘s had been $3.8 million. Topsail took the Ward benchmark and added to it costs for repairs that were included in the Hale estimate but were excluded from the Ward estimate. Throughout the claim monitoring process, LCR made Topsail aware that this method of reconciling the Ward and Hale estimates was in dispute. Additionally, Zurich reasonably believed that Topsail submitted duplicate claims by inserting charges for line items that were also included in the benchmarked estimate. For example, the adjuster‘s benchmark included charges for wallpaper seam repairs and cleaning carpets. Topsail then submitted itemized claims for wallpaper seam repairs and cleaning carpets, totaling $18,473.30. Further, Topsail failed to provide Zurich with the contracts that Topsail signed with Hale, which Zurich informed Topsail were necessary to finalize the claim. Finally, Topsail failed to provide Zurich with additional documentation, as was requested by Zurich.
Zurich‘s agents were involved with the claim adjustment process and advised Topsail as to Zurich‘s position regarding these issues throughout Topsail‘s negotiation with Hale, but Topsail ignored their concerns and input. Moreover, by returning a verdict awarding half of the amount of damages sought by Topsail, the jury rejected Topsail‘s contention that Topsail‘s estimate of damage represented a reasonable scope of hurricane-related repairs. The jury‘s verdict demonstrates that Topsail‘s claim was never substantially corroborated but instead was substantially undermined. Because Zurich had reasonable bases to challenge the validity of Topsail‘s submitted claim, Gray is not controlling.7 Accordingly, drawing all inferences in favor of Topsail, as we must, Topsail has failed to demonstrate a material issue of fact as to whether Zurich complied with its obligation to attempt in good faith to effectuate a prompt, fair, and equitable settlement of Topsail‘s claim, which was reasonably in dispute.8
Finally, Topsail argues that Zurich violated the UDTPA by engaging in conduct that “amounts to an inequitable assertion of its power or position.” (Appellant‘s Br. at 13) (citing Petersen v. State Employees Credit Union, 115 B.R. 873 (BkrTCY.M.D.N.C.1990)). Topsail argues that because it was “powerless” against Zurich, as its insurer, Zurich engaged in unfair and deceptive trade practices by rejecting the claim submitted by Topsail in an attempt to force Topsail to settle for less than it was due under the insurance policy. As noted above, Zurich had valid, reasonable bases for challenging the claim submitted by Topsail. Additionally, Topsail is incorrect to assert that the amount it claimed in damages is an amount it was owed under the policy; the jury verdict discredits this assertion. Topsail points to no evidence demonstrating that Zurich believed the claim to be valid but disputed it for the purpose of forcing Topsail to settle for less than what was owed under the policy. In fact, the interim payments made by Zurich, totaling over three million dollars, directly refute Topsail‘s contention that Zurich was inequitably denying payments for the purpose of forcing an unfair settlement. In short, even after having the benefit of a full trial, Topsail provides no support for the proposition that Zurich acted in an inequitable manner throughout the claim settlement process. Thus, the UDTPA claim against Zurich fails as a matter of law.
III.
We turn next to Topsail‘s argument that the district court erred by granting summary judgment in favor of Elliston on the UDTPA claim. The district court held that Topsail‘s UDTPA claim against Elliston failed as a matter of law because Topsail failed to allege facts that, if true, would support an UDTPA claim against Elliston.9
In support of the UDTPA claim against Elliston, Topsail points to the following conduct: (1) Elliston first recommended to Zurich that Zurich dispute Topsail‘s submitted claim; (2) Elliston recommended that Zurich pay less than Topsail requested as an interim payment; and (3) Elliston misrepresented facts to Zurich when it disavowed Topsail‘s authority to adjust its own claim in the manner Topsail felt was appropriate. We address each of Topsail‘s allegations in turn.
A.
Elliston hired LCR to monitor the claim process and to help Topsail adjust the claim in a reasonable manner. The correspondence between LCR, Elliston, and Zurich indicates that Topsail was dismissing outright LCR‘s advice concerning the adjustment of the claim. LCR outlined various areas in which it believed
As the district court noted, the outlined conduct demonstrates only that LCR and Elliston were fulfilling the duties that they were hired to fulfill in monitoring the claim process in a professional, fair manner. Nothing in the correspondence indicates that Elliston, through LCR, acted deceitfully or otherwise unfairly by recommending to Zurich that Topsail‘s claim was not valid.10 Instead, the facts compel the conclusion that Elliston reasonably believed Topsail‘s claim to be excessive and recommended that Zurich dispute the submitted claim on that basis. Additionally, by setting forth factors for Zurich to weigh in deciding whether to dispute the claim, LCR reasonably indicated that the decision of whether to accept or reject Topsail‘s figures ultimately rested with Zurich and should be based upon factors within the knowledge and discretion of Zurich.
Because LCR and Elliston acted professionally, fairly, and in a non-deceitful manner in advising Zurich throughout the claim adjustment process, their recommendation that Zurich dispute Topsail‘s claim does not provide a basis for Topsail‘s UDTPA cause of action.
B.
Topsail next relies upon a letter sent by Elliston to Topsail on July 30, 1997, in which Elliston recommended that Zurich make an interim payment of less than the amount requested by Topsail. The July 30 letter states as follows:
Attached is Tom Crim‘s request for an interim payment of $500,000. We believe this request is excessive considering we intend to put together a reasonable figure for the entire job within a couple weeks. I would think the less money they have in hand the more receptive they may be to promptly arrive at a final number less the supplements.
(J.A. at 1386.)
Topsail argues that the July 30 letter indicates an intent to deprive Topsail of a fair settlement by withholding funds. To the contrary, Elliston reasonably noted its belief that $500,000 was an excessive interim payment, in light of the fact that Topsail had already submitted its June claims summary at the time it requested this interim payment and the final claim settlement was expected within two weeks. Additionally, to the extent that this letter indicates that Elliston was attempting to negotiate a lower settlement, it was reasonable to do so, insofar as Elliston was not attempting to deprive Topsail of an amount that Topsail was rightfully due under the policy. Rather, as noted above,
C.
Finally, Topsail contends that Elliston misrepresented facts in an attempt to persuade Zurich to dispute Topsail‘s claim. On September 12, 1997, after the Zurich representative who had been primarily responsible for the Topsail claim retired, Elliston sent a letter to the replacement representative in which Elliston briefly summarized the background of the Topsail claim. In the letter, Elliston stated, “[Topsail] admittedly declared they were given the vested authority by Mr. Ian Scott to act as the adjuster on the job. This perception is not correct.” (J.A. at 1383.) Topsail argues that this is a clear misrepresentation, in light of previous letters in which Elliston had recognized Topsail‘s authority to adjust its own claim. On June 23, 1997, Elliston sent a letter to Zurich stating, “The second general issue is that [Topsail] informed [LCR] that you vested him full authority to adjust the claim. This in effect strips us of any authority to override [Topsail] and [the] instructions to the contractor.” (J.A. at 1374.) On July 11, 1997, Elliston sent a letter to Zurich stating that LCR and Elliston, “agree that the full control of this claim rests with [Topsail] and the contractor.” (J.A. at 1366.)
To the extent a discrepancy exists between the June, July, and September letters that renders the September letter misleading, the misleading statement is insufficient to ground an UDTPA claim against Elliston because there is no evidence that Topsail was damaged by this misleading statement. See, e.g., Burgess v. Busby, 544 S.E.2d 4, 11 (N.C.App.2001) (noting that, to establish a prima facie UDTPA claim, the plaintiff must show that the act or practice “proximately caused actual injury to them“). No evidence exists indicating that Zurich relied upon Elliston‘s statement as its basis for disputing Topsail‘s claim. In fact, when read in conjunction with the entire correspondence regarding the Topsail claim, it is simply implausible to contend that this one statement induced Zurich to dispute the claim. Accordingly, we affirm the district court‘s entry of summary judgment in favor of Elliston, as well as the district court‘s consequent dismissal of Elliston from the case.
IV.
Topsail next challenges the district court‘s entry of summary judgment in favor of Zurich as to Topsail‘s bad faith refusal to settle claim. To establish a claim for bad faith refusal to settle, Topsail must show: (1) “a refusal to pay after recognition of a valid claim; (2) bad faith; and (3) aggravating or outrageous conduct.” Lovell v. Nationwide Mut. Ins. Co., 108 N.C.App. 416, 424 S.E.2d 181, 184 (N.C.App.1993). Because Topsail has failed to provide evidence to support any of these elements, we affirm the district court‘s entry of summary judgment in favor of Zurich.
Topsail argues that the claim for damages submitted to Zurich on June 17, 1997 represented an “undisputed portion” of its claim and that Zurich‘s refusal to pay constituted a refusal to pay after recognition of a valid claim. (Appellant‘s Br. at 15.) In support of this position, Topsail relies almost exclusively on the alleged authority Zurich vested in it to adjust the claim, contending that the vested authority establishes that the claim submitted to Zurich was “undisputed” and “valid” as a matter of law.
Throughout the claim negotiation process, Zurich, through LCR, made Topsail aware that its use of the benchmark was in dispute and that LCR perceived its claim as excessive. In its written response to Topsail‘s claims summaries, Zurich clearly indicated that it disputed the validity of various aspects of Topsail‘s claim. As noted above with respect to Topsail‘s UDTPA causes of action, Zurich had valid reasons for questioning the validity of the claim. Because Zurich had legitimate reasons to question the validity of Topsail‘s submitted claim that were made known to Topsail from the first of Zurich‘s correspondence and during Topsail‘s negotiations with Hale, Topsail can point to no evidence that supports its conclusion that Zurich ever recognized its claim summaries as valid. As noted by the district court, Topsail “failed to forecast evidence tending to show that Zurich ever recognized a valid claim. Rather, plaintiff‘s evidence at trial was to the effect that Zurich, upon Elliston‘s advice, deemed plaintiff‘s claim figures to be excessive and therefore not valid.” (J.A. at 1440.)13
Nor can Topsail point to evidence supporting the other two elements of a bad faith refusal to settle claim. Bad faith means “not based on honest disagreement or innocent mistake.” Dailey v. Integon Gen. Ins. Corp., 75 N.C.App. 387, 331 S.E.2d 148, 155 (N.C.App.1985). Aggravated conduct is defined to include “fraud, malice, gross negligence, insult ... willfully, or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff‘s rights.” Id. at 154. As was established in Olive, 333 S.E.2d at 46 (holding that summary judgment is appropriate in favor of the insurer on a bad faith refusal to settle claim when coverage issue was reasonably in dispute). Here, Topsail‘s claim was reasonably in dispute. Thus, Topsail‘s allegations fail as a matter of law to establish bad faith or aggravating conduct. Accordingly, the district court did not err by granting summary judgment in favor of Zurich on Topsail‘s bad faith refusal to settle claim.
V.
Finally, Topsail challenges the district court‘s exclusion of evidence of Topsail‘s authority to adjust its own claim to prove its damages resulting from Zurich‘s breach of the insurance contract. The district court found that the evidence was inadmissible because it is irrelevant to the issue of damages. We review the district court‘s decision to exclude evidence for an abuse of discretion. See United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir.2000).
The insurance policy establishes that Topsail is entitled to coverage on the reasonable costs of repairs resulting from hurricane-related damage. Assuming Topsail‘s allegations about its authority are true, the authority vested in Topsail did not change the scope of the insurance policy‘s coverage. Thus, the authority was completely irrelevant to the jury‘s determination of the damages resulting from the breach of the insurance policy. Because Topsail‘s authority to adjust its claim is irrelevant to the amount for which Zurich was liable under the insurance policy, the district court did not abuse its discretion by excluding this evidence.14
VI.
Because Topsail is unable to establish the prima facie elements of its UDTPA claims and its bad faith refusal to settle claim, the district court did not err by entering summary judgment against Topsail. Moreover, the district court did not abuse its discretion by excluding evidence of Topsail‘s authority to adjust its own
AFFIRMED.
PER CURIAM