{ "id": 8525647, "name": "BELMONT LAND AND INVESTMENT COMPANY, A Corporation, and WEYMOUTH MANAGEMENT CORPORATION, a Corporation, d/b/a AVON ASSOCIATED WAREHOUSE COMPANY, a Partnership, Plaintiffs v. THE STANDARD FIRE INSURANCE COMPANY, a Corporation, a member of THE AETNA LIFE AND CASUALTY GROUP, of Hartford, Connecticut; WATSON INSURANCE AGENCY, INC.; and HUGH CAMPBELL, Defendants", "name_abbreviation": "Belmont Land & Investment Co. v. Standard Fire Insurance", "decision_date": "1991-05-07", "docket_number": "No. 9027SC643", "first_page": "745", "last_page": "751", "citations": [ { "type": "official", "cite": "102 N.C. App. 745" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "325 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "312 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754748 ], "year": 1985, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0749-01" ] }, { "cite": "370 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524291 ], "year": 1988, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0058-01" ] }, { "cite": "341 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703812 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0372-01" ] }, { "cite": "330 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525020 ], "year": 1985, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0104-01" ] }, { "cite": "343 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "316 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694338 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0461-01" ] }, { "cite": "391 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "326 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306228 ], "year": 1990, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0569-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1988, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-63-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1989, "opinion_index": 0 } ], "analysis": { "cardinality": 655, "char_count": 13118, "ocr_confidence": 0.769, "pagerank": { "raw": 1.0521983246317098e-07, "percentile": 0.5542388764750378 }, "sha256": "3b56c42368dd7bdd683e045ced26256d63f070a14b1c21c034790651b9bff672", "simhash": "1:8f6ab422fc3bf870", "word_count": 2091 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and JOHNSON concur." ], "parties": [ "BELMONT LAND AND INVESTMENT COMPANY, a Corporation, and WEYMOUTH MANAGEMENT CORPORATION, a Corporation, d/b/a AVON ASSOCIATED WAREHOUSE COMPANY, a Partnership, Plaintiffs v. THE STANDARD FIRE INSURANCE COMPANY, a Corporation, a member of THE AETNA LIFE AND CASUALTY GROUP, of Hartford, Connecticut; WATSON INSURANCE AGENCY, INC.; and HUGH CAMPBELL, Defendants" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiffs brought a declaratory judgment action against defendant Standard Fire Insurance Company (Standard Fire); by a second amendment to their complaint, plaintiffs, with a claim alleging negligence, added Watson Insurance Agency, Inc. (Watson Insurance), and Hugh Campbell as defendants. By a final amendment to their complaint, plaintiffs added a claim of unfair and deceptive business practices against Watson Insurance and Campbell. On that claim the trial court granted summary judgment for defendants Watson Insurance and Campbell. We affirm.\nOn 17 October 1984 defendant Hugh Campbell, one of Watson Insurance\u2019s agents, wrote to Earl Groves, President of plaintiff Weymouth Management Corporation, one of two general partners owning Avon Associated Warehouses Company (Avon), enclosing the \u201crenewal of [Avon\u2019s] Package policy\u201d providing \u201cliability and property coverage on [Avon\u2019s] various locations.\u201d Campbell\u2019s letter noted that the policy being renewed provided coverage which \u201crequired [Avon] to carry 90 percent of the actual cash value [ACV] as respects buildings and contents.\u201d\nIn the summer of 1985 Groves met with Campbell, who recommended that the buildings covered by the recently renewed policy be appraised. Following Campbell\u2019s recommendation Avon had these buildings appraised by General Adjustment Bureau (GAB). At the time of the appraisal the warehouse located at 927-935(R) W. Airline Ave. (the warehouse) in Gastonia was insured for $863,300. GAB appraised the warehouse\u2019s depreciated reproduction cost basis (another term for actual cash value) at $1,319,423. Based on GAB\u2019s appraisal Groves authorized, effective in August 1985, an increase in coverage on most of their buildings, including the warehouse. Coverage on the warehouse was set at $1,187,480, representing 90 percent of the buildings ACV \u201cwith plaintiffs being co-insurers for the remaining 10 percent.\u201d On 12 July 1986 the warehouse was partially destroyed by fire. It was uncontested that the reasonable cost of repair was \u201c$428,673.00 plus temporary repairs of $17,623.00 and possibly up to $50,000.00 for the replacement of steel beams when . . . the need for steel beams has been determined.\u201d The amount payable under the coverage provided by Standard Fire\u2019s policy was disputed. Defendant Standard Fire, pursuant to the terms of the insurance policy, demanded \u201can appraisal of the amount of the covered loss.\u201d The appraisers agreed that the actual cash value loss payable under the policy was $361,500 plus $50,000 if new steel beams proved necessary.\nPlaintiffs initiated the case below with a complaint filed 11 June 1987. Watson Insurance and Campbell were added as defendants on 10 February 1988. On 12 February 1990 plaintiffs moved to be allowed \u201cto amend their complaint at the close of all evidence\u201d to \u201callege a claim for unfair and deceptive business practices.\u201d The trial court treated the motion as one to amend prior to trial and entered an order allowing the amendment. The new claim alleged in pertinent part\n9. That defendants misrepresented pertinent facts and/or insurance policy provisions relating to the coverages at issue in the new policy sold to plaintiffs.\n10. That defendants knew that plaintiffs were uninformed concerning these coverages and were relying on the representations of defendants.\nOn 15 February 1990 defendants Watson Insurance and Campbell moved for summary judgment on the unfair and deceptive business practices claim. On 14 March 1990 the trial court entered an order granting that motion and subsequently amended the order to certify it for immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure.\nOn appeal plaintiffs contend that the trial court erred in granting summary judgment for defendants on the unfair and deceptive business practices claim. Their claim is tenable, plaintiffs maintain, under either N.C. Gen. Stat. \u00a7 58-63-15 (1989) or N.C. Gen. Stat. \u00a7 75-1.1 (1988). We disagree.\nThe standard for summary judgment is well known. It is to be granted when, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Beckwith v. Llewellyn, 326 N.C. 569, 573, 391 S.E.2d 189, 191 (1990).\nCiting Pearce v. American Defender Life Insurance Co., 316 N.C. 461, 343 S.E.2d 174 (1986), plaintiffs state that our Supreme Court has recognized that a violation of N.C. Gen. Stat. \u00a7 58-63-15 \u201cconstitutes a Chapter 75-1.1 violation \u2018as a matter of law.\u2019 \u201d Pearce held \u201cthat a violation of N.C.G.S. \u00a7 58-54.4 as a matter of law constitutes an unfair or deceptive trade practice in violation of N.C.G.S. \u00a7 75-1.1.\u201d Pearce, 316 N.C. at 470, 343 S.E.2d at 179. In 1987 and 1988 the General Assembly mandated that former Chapter 58, among other chapters dealing with insurance, be renumbered, rearranged, and consolidated, and present \u00a7 58-63-15 was derived from former \u00a7 58-54.4. Plaintiffs rely specifically on \u00a7 58-63-15(ll)(a), which provides as follows:\n(11) Unfair Claim Settlement Practices. \u2014 Committing or performing with such frequency as to indicate a general business practice of any of the following: Provided, however, that no violation of this subsection shall of itself create any cause of action in favor of any person other than the Commissioner:\na. Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; . . .\nPlaintiffs did not allege that defendants Watson Insurance and Campbell violated any of the acts prohibited by \u00a7 58-63-15(11) \u201cwith such frequency as to indicate a general business practice.\u201d Accordingly, they failed to establish a claim premised on violation of that statute, and judgment dismissing their claim was properly entered as to that issue. Beasley v. National Savings Life Ins. Co., 75 N.C. App. 104, 109, 330 S.E.2d 207, 210 (1985), disc. review improvidently allowed, 316 N.C. 372, 341 S.E.2d 338 (1986); accord Von Nagel v. Blue Cross and Blue Shield, 91 N.C. App. 58, 60, 370 S.E.2d 695, 698 (1988).\nPlaintiffs allege that, even in the absence of a violation of \u00a7 58-63-15, the conduct of Watson Insurance and Campbell constituted a violation of \u00a7 75-1.1. Section 75-1.1 provides in pertinent part that\n(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\nThe burden of plaintiffs\u2019 argument is that Campbell as the agent of Watson Insurance deceived Groves into believing that, in the event of a partial loss, Avon was insured for full replacement cost rather than actual cash value. The forecast of evidence, however, shows no factual dispute as to Campbell\u2019s statements regarding Avon\u2019s policy and nothing in those statements which, taken in the light most favorable to plaintiffs, supports an inference of deception.\nIt is uncontroverted that Avon\u2019s policy providing coverage at actual cash value was in effect for several years before Campbell took over the Avon account. Campbell\u2019s letter to Groves of 17 October 1984 read in pertinent part as follows:\nWe are pleased to enclose herewith the renewal of your Package policy which provides liability and property coverage on your various locations. As we discussed during our meeting, you are to advise us of any changes to make as respects the amounts of insurance on your buildings, also the amount shown on the gross earnings endorsement. As you know, you are required to carry 90 percent of the actual cash value as respects buildings and contents. Actual cash value is defined as cost new, less depreciation. Actual cash value is not replacement cost; and as we discussed, it will probably not be in your best interests to insure on a replacement cost basis. If we do not hear from you, we will assume that the amounts of insurance for each location are correct as shown on the enclosed policy.\nShould you have any questions regarding this policy, please do not hesitate to give me a call. (Emphasis added.)\nOn 27 September 1985, after Avon\u2019s buildings had been appraised by GAB, Campbell again wrote to Groves\nenclosing herewith the renewal of your Package Insurance Policy which provides coverage on your buildings as well as Comprehensive General Liability coverage. This policy was renewed prior to our requesting the increase in values. There will, therefore, be an endorsement showing the new values, and this will naturally create a substantial additional premium.\n* * * *\nIf we need to make any changes in this policy other than the values of the buildings, please give me a call.\nFinally, Groves testified as follows during his deposition:\nQ. Mr. Groves, it is not your testimony today, is it, that Mr. Campbell ever told you that in partial loss situations such as the one in July of 1986 that you would be paid full replacement cost, is it?\nA. I don\u2019t think he said that. I think he said that we would he protected against a partial loss.\nQ. And he never told you, I take it, then, that depreciation would not be taken into consideration in a partial loss situation, did he, meaning he didn\u2019t mention it one way or the other?\nA. No; I don\u2019t think he did mention it. All I recall is that there would be a new basis of depreciation based on that appraisal, [by GAB] but whether any distinction was made between whole or partial, I don\u2019t recall. (Emphasis added.)\nThe forecast of evidence does not support the plaintiffs\u2019 allegation of deception on the part of Campbell. Moreover, the evidence shows that plaintiffs received exactly the insurance coverage for which they contracted. On the question presented the trial court correctly concluded that defendants Watson and Campbell were entitled to judgment as a matter of law.\nDefendants Watson Insurance and Campbell included in the record a purported cross-assignment of error to the trial court\u2019s order of 18 December 1989 denying their motion for summary judgment as to all claims. Without taking an appeal an appellee may make a cross-assignment of error by the trial court \u201cwhich deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken.\u201d N.C.R. App. P. 10(d). The error assigned by defendants does not relate to the order of 14 March 1990 from which appeal has been taken. Moreover, even if defendants had appealed from the order to which they now attempt to assign error, an order, like that of 18 December 1989, denying summary judgment is ordinarily interlocutory and nonappealable. DeArmon v. B. Mears Corp., 312 N.C. 749, 758, 325 S.E.2d 223, 230 (1985). Hence, we do not address defendants\u2019 purported cross-assignment of error.\nThe trial court\u2019s order of 14 March 1990 is\nAffirmed.\nJudges Wells and JOHNSON concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Whitesides, Robinson, Blue, Wilson and Smith, by Henry M. Whitesides and Terry Albright Kenny, for plaintiff appellants.", "Kennedy Covington Lobdell & Hickman, by Wayne Huckel for Watson Insurance Agency, Inc., and Hugh Campbell, defendant appellees." ], "corrections": "", "head_matter": "BELMONT LAND AND INVESTMENT COMPANY, a Corporation, and WEYMOUTH MANAGEMENT CORPORATION, a Corporation, d/b/a AVON ASSOCIATED WAREHOUSE COMPANY, a Partnership, Plaintiffs v. THE STANDARD FIRE INSURANCE COMPANY, a Corporation, a member of THE AETNA LIFE AND CASUALTY GROUP, of Hartford, Connecticut; WATSON INSURANCE AGENCY, INC.; and HUGH CAMPBELL, Defendants\nNo. 9027SC643\n(Filed 7 May 1991)\n1. Unfair Competition \u00a7 1 (NCI3d)\u2014 unfair insurance claim settlement practices \u2014 insufficient allegations\nPlaintiffs failed to establish a claim for unfair insurance claim settlement practices in violation of N.C.G.S. \u00a7 58-63-15 where they failed to allege that defendant agents engaged in acts prohibited by the statute \u201cwith such frequency as to indicate a general business practice.\u201d\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 735.\n2. Unfair Competition \u00a7 1 (NCI3d)\u2014 unfair business practice\u2014 insufficient evidence of deception\nSummary judgment was properly entered for defendants on plaintiffs\u2019 claim for an unfair and deceptive business practice in violation of N.C.G.S. \u00a7 75-1.1 where plaintiffs\u2019 forecast of evidence was insufficient to show any deception by defendant insurance agent which could have caused them to believe that their building was insured for full replacement cost rather than actual cash value in the event of a partial loss by fire.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 735.\n3. Appeal and Error \u00a7 342 (NCI4th)\u2014 purported cross-assignment \u2014 error not related to order appealed\nThe Court of Appeals did not address defendants\u2019 purported cross-assignment of error where the error did not relate to the order from which appeal was taken by plaintiffs as required by Appellate Rule 10(d) but related to an interlocutory and nonappealable order denying summary judgment.\nAm Jur 2d, Appeal and Error \u00a7 104.\nAPPEAL by plaintiffs from Order entered 14 March 1990 by Judge Robert W. Kirby in GASTON County Superior Court. Heard in the Court of Appeals 6 December 1990.\nWhitesides, Robinson, Blue, Wilson and Smith, by Henry M. Whitesides and Terry Albright Kenny, for plaintiff appellants.\nKennedy Covington Lobdell & Hickman, by Wayne Huckel for Watson Insurance Agency, Inc., and Hugh Campbell, defendant appellees." }, "file_name": "0745-01", "first_page_order": 775, "last_page_order": 781 }