{
  "id": 8525177,
  "name": "E. DeLISA SMITH, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant",
  "name_abbreviation": "Smith v. State Farm Fire & Casualty Co.",
  "decision_date": "1993-03-02",
  "docket_number": "No. 9110SC1215",
  "first_page": "276",
  "last_page": "280",
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      "cite": "109 N.C. App. 276"
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      "cite": "485 So. 2d 426",
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      "year": 1985,
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        {
          "parenthetical": "in policy referring to \"misrepresentation of any material fact,\" \"any means any\""
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      "cite": "476 So. 2d 281",
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      "category": "reporters:state_regional",
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      "year": 1990,
      "pin_cites": [
        {
          "page": "1261",
          "parenthetical": "post-loss misrepresentations voided the policy under a similar concealment or fraud provision even though did not contain language \"whether before or after a loss\""
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        {
          "page": "1263",
          "parenthetical": "held similar provision not ambiguous"
        }
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    {
      "cite": "417 S.E.2d 457",
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      "year": 1992,
      "pin_cites": [
        {
          "page": "459"
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    {
      "cite": "331 N.C. 726",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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  "last_updated": "2023-07-14T20:43:31.464788+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges JOHNSON and COZORT corfcur."
    ],
    "parties": [
      "E. DeLISA SMITH, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nDefendant issued a renter\u2019s insurance policy to plaintiff effective 10 November 1988 to 10 November 1989. Plaintiffs apartment was burglarized the weekend of 23-24 September 1989. Upon notification of the theft by plaintiff, defendant issued a $1,000 check to her which she promptly cashed. On 13 October 1989 plaintiff submitted a personal property inventory form listing the items stolen, including an Epson computer and printer valued at $2,000. Plaintiff submitted a sworn statement in proof of loss on 3 November 1989 in the amount of $18,144.35, which included the claim for the computer and printer. On 15 December 1989, in an examination under oath in accordance with the insurance policy, plaintiff represented that she was in the process of purchasing the computer and printer from Mr. Jeff Warren in Raleigh when it was stolen from her apartment. Investigation by defendant revealed that plaintiff did not own the computer at the time of the burglary nor was she in possession of it. In January 1990, Mr. Warren informed State Farm that he owned an Epson computer and printer, that this equipment had never left his possession, and that he had never loaned or sold a computer to plaintiff.\nOn 6 April 1990 defendant denied plaintiff\u2019s theft claim due to plaintiff\u2019s misrepresentation of material facts and circumstances. On 19 April 1990 plaintiff herself informed defendant\u2019s agent, Ken Davis, that she had made a material misrepresentation to them in that she did not own or possess the computer and printer at the time of the burglary. Thereafter, on 30 May 1990, plaintiff filed a complaint against defendant seeking damages for the value of the items actually stolen. She also alleged that defendant\u2019s refusal to pay constituted an unfair and deceptive trade practice under N.C.G.S. \u00a7 75-1.1 (1988). Defendant answered that her material misrepresentations voided its coverage under the policy pursuant to a \u201cConcealment or Fraud\u201d provision contained in the policy, and counterclaimed for return of the $1,000 advance payment.\nOn 16 July 1991 defendant filed for summary judgment on the issues of material misrepresentation, unfair and deceptive trade practices, and its counterclaim for recovery of insurance proceeds. Judge Barnette granted defendant\u2019s motion on 5 September 1991 on all three issues. Plaintiff now appeals to this Court.\nSummary judgment is appropriate only if there is no genuine issue of material fact to be decided and the movant is entitled to judgment as a matter .of law. N.C.G.S. \u00a7 1A-1, Rule 56(c) (1990); DiOrio v. Penny, 331 N.C. 726, 728, 417 S.E.2d 457, 459 (1992). Because there are no genuine issues of material fact in this case we affirm summary judgment in favor of defendant.\nWhen the policy was issued to plaintiff it contained the following provision:\n2. Concealment or Fraud. We do not provide coverage for an insured who has:\na. intentionally concealed or misrepresented any material fact or circumstance; or\nb. made false statements or engaged in fraudulent conduct; relating to this insurance.\nTwo years later the policy was supplemented and made retroactively effective to plaintiff\u2019s policy, according to defendant. The amended provision reads as follows:\n2. Concealment or Fraud. The entire policy will be void if, whether before or after a loss, an insured has:\na. intentionally concealed or misrepresented any material fact or circumstance;\nb. engaged in fraudulent conduct; or\nc. made false statements;\nrelating to this insurance.\nPlaintiff contends that the amended provision does not apply to her since her original policy did not contain it. She claims that the original version only pertained to activities that occurred before a loss because it did not contain the language \u201cbefore or after.\u201d Therefore her misrepresentations after a loss did not void coverage under her policy.\nDefendant argues that even under the original provision plaintiff was not entitled to recover damages for her lost property due to her misrepresentations. Defendant\u2019s arguments in the trial court and on this appeal are based on the original version only. If we should find in favor of plaintiff, defendant has expressly reserved the right to argue that the amended provision was in effect at the time of the burglary.\nPlaintiff first argues that the \u201cConcealment or Fraud\u201d provision applies only to an insured\u2019s application for insurance coverage and other pre-loss conduct. Plaintiff notes that another portion of the policy sets forth \u201cDuties After Loss.\u201d She also asserts that defendant cannot take advantage of the fact that it changed the provision two years later to specifically encompass conduct which occurs \u201cbefore or after\u201d a loss. Finally, plaintiff argues that the provision is ambiguous and cannot be used by defendant to defeat coverage under the policy. She claims defendant conceded the ambiguity by its later amendment to that provision, because the amendment would have been unnecessary if the original provision was unambiguous.\nWe are not persuaded by plaintiff\u2019s arguments. First, we dispose of plaintiff\u2019s contention that defendant may not rely on later changes to its policy, because for the purposes of this appeal defendant bases its argument on the original wording of the \u201cConcealment or Fraud\u201d provision. Second, we see no reason why the language of the original policy would only pertain to pre-loss conduct. The policy itself states that coverage is not provided for an insured who has made \u201cany\u201d material misrepresentation \u201crelating to this insurance.\u201d Defendant points to decisions from other jurisdictions interpreting similar clauses since there are no North Carolina decisions on point. See, e.g., Longobardi v. Chubb Ins. Co. of New Jersey, 582 A.2d 1257, 1261 (N.J. 1990) (post-loss misrepresentations voided the policy under a similar concealment or fraud provision even though did not contain language \u201cwhether before or after a loss\u201d); American Employers\u2019 Ins. Co. v. Taylor, 476 So. 2d 281, 283 (Fla. Dist. Ct. App.), cause dismissed by, Taylor v. American Employers\u2019 Ins. Co., 485 So. 2d 426 (Fla. 1985) (in policy referring to \u201cmisrepresentation of any material fact,\u201d \u201cany means any\u201d). We agree the policy in question clearly informed the policyholder that any material misrepresentations made at any time would void the entire policy.\nPlaintiff\u2019s contention that the provision in question is limited to pre-loss conduct since another portion of the policy covers duty after loss is without merit. The policy is structured so that Section I governs Property Coverage and Section II governs Liability Coverage. Both of these sections contain a provision on an insured\u2019s \u201cDuties After Loss.\u201d In her brief plaintiff cites the provision contained in Section II on property coverage. The \u201cConcealment or Fraud\u201d provision at issue in this case appears in a portion of the policy entitled \u201cSections I and II \u2014 Conditions.\u201d The provisions under this section apply to both Section I and Section II, and apply to all losses covered by the insurance policy. The \u201cConditions\u201d are completely different from the \u201cDuties After Loss\u201d provisions contained in Sections I and II.\nFinally, we agree with defendant that the provision is unambiguous. As stated above, we believe the original language clearly informs the policyholder that any misrepresentations at any time will void the policy. See Chubb, 582 A.2d at 1263 (held similar provision not ambiguous); American, 476 So. 2d at 283 (\u201cany means any\u201d). We hold that the provision in question, as originally written in plaintiff\u2019s policy, precludes coverage whether the alleged misconduct occurs before or after the loss. This holding is consistent with public policy since to hold otherwise would be to encourage policyholders to misrepresent losses. Such misconduct would carry no consequences if those policyholders were still permitted to recover in full under their policies. See American, 476 So. 2d at 284. Because we reject both of plaintiff\u2019s arguments, we. do not address defendant\u2019s statutory argument.\nThe trial court\u2019s grant of summary judgment for defendant is hereby\nAffirmed.\nJudges JOHNSON and COZORT corfcur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Teague, Campbell, Dennis & Gorham, by C. Woodrow Teague and John A. Tomei, for plaintiff-appellant.",
      "Yates, McLamb & Weyher, by R. Scott Brown and 0. Craig Tierney, Jr., for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "E. DeLISA SMITH, Plaintiff v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant\nNo. 9110SC1215\n(Filed 2 March 1993)\nInsurance \u00a7 831 (NCI4th)\u2014 renter\u2019s insurance \u2014material misrepresentation as to items stolen \u2014coverage precluded\nA provision as originally written in plaintiffs renter\u2019s insurance policy precluding coverage for \u201cany\u201d material misrepresentation \u201crelating to this insurance\u201d precluded coverage whether the alleged misconduct occurred before or after a loss; therefore, the trial court properly granted summary judgment for defendant where plaintiff\u2019s apartment was burglarized, and she made a material misrepresentation in that she did not own or possess a computer and printer at the time of the burglary, yet she included those items on her personal property inventory form listing the items stolen.\nAm Jur 2d, Insurance \u00a7\u00a7 1012, 1013.\nFraud or misrepresentation by insured\u2019s agent after loss as within provision avoiding policy for fraud or attempted fraud of insured. 24 ALR2d 1220.\nAppeal by plaintiff from order entered 5 September 1991 by Judge Henry V. Barnette, Jr. in Wake County Superior Court. Heard in the Court of Appeals 10 November 1992.\nTeague, Campbell, Dennis & Gorham, by C. Woodrow Teague and John A. Tomei, for plaintiff-appellant.\nYates, McLamb & Weyher, by R. Scott Brown and 0. Craig Tierney, Jr., for defendant-appellee."
  },
  "file_name": "0276-01",
  "first_page_order": 304,
  "last_page_order": 308
}