{ "id": 8523517, "name": "IRVING FINEBERG, Plaintiff v. STATE FARM FIRE AND CASUALTY CO., Defendant", "name_abbreviation": "Fineberg v. State Farm Fire & Casualty Co.", "decision_date": "1994-02-01", "docket_number": "No. 9315SC164", "first_page": "545", "last_page": "549", "citations": [ { "type": "official", "cite": "113 N.C. App. 545" } ], "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": "320 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523710 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0575-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-44-50", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "346 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779283 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0683-01" ] }, { "cite": "338 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519996 ], "year": 1986, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0213-01" ] }, { "cite": "405 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "778" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521932 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0521-01" ] } ], "analysis": { "cardinality": 436, "char_count": 8094, "ocr_confidence": 0.757, "pagerank": { "raw": 3.0020835500476713e-07, "percentile": 0.8526041479638388 }, "sha256": "0c85afae1912c034aaee037d963bc25b4c39dee1a16a6ae7b484c2e4f4e99721", "simhash": "1:2f8958c66ced3d59", "word_count": 1280 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and EAGLES concur." ], "parties": [ "IRVING FINEBERG, Plaintiff v. STATE FARM FIRE AND CASUALTY CO., Defendant" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nThe sole question presented by plaintiff\u2019s appeal is whether the trial court erred in granting summary judgment in favor of the defendant. The trial court granted summary judgment on the basis that plaintiff failed to comply with all conditions precedent under his insurance policy in failing to submit to an examination under oath. The trial court relied in part on this Court\u2019s opinion in Baker v. Independent Fire Insurance Company, 103 N.C. App. 521, 405 S.E.2d 778 (1991), in making its determination. In Baker, the insured\u2019s case against the insurer was dismissed because the insured failed to submit to an examination under oath, as required by policy terms. This Court affirmed the dismissal, noting that plaintiff had failed to comply with a condition precedent of the policy.\nLike the policy in Baker, defendant\u2019s policy requires the insured to submit to an examination under oath. In addition, compliance with all policy requirements is a condition precedent to bringing suit against the insurer under the policy. Compliance with a condition in a fire insurance policy, such as the examination under oath provision, has \u201cbeen held to be a condition precedent to suing on a fire policy.\u201d Baker, 103 N.C. App. at 522, 405 S.E.2d at 778. The objective of this particular provision is \u201cto enable the insurance company to obtain information to determine the extent of its obligation and to protect itself from false claims.\u201d Chavis v. State Farm Fire and Casualty Co., 79 N.C. App. 213, 215, 338 S.E.2d 787, 789, rev\u2019d on other grounds, 317 N.C. 683, 346 S.E.2d 496 (1986). Moreover, failure to comply with these conditions precedent bars recovery as well as the right to bring suit under the policy. See 5A John A. Appleman and Jean Appleman, Insurance Law and Practice \u00a7 3549 (1970 & Supp. 1993) (citing jurisdictions which hold that failure to submit to an examination under oath constitutes material breach and is a defense to an action on the policy).\nIn this case, it is clear that plaintiff has failed to comply with a stated condition precedent. Plaintiff urges this Court,'however, to create an exception to the mandatory nature of this condition and apply a good cause exception like that found in N.C. Gen. Stat. \u00a7 58-44-50 (1991). G.S. \u00a7 58-44-50 excuses untimely filing of proof of loss, another condition precedent, where good cause is shown. We decline to create such an exception, believing instead that the legislature\u2019s enactment of that specific exception indicates an intent to limit the general proliferation of exceptions in this area.\nWe also disagree with plaintiff\u2019s contention that this case is closer to Lee v. State Farm Fire and Casualty Company, 70 N.C. App. 575, 320 S.E.2d 413 (1984), than Baker. In Lee, this Court reversed the trial court\u2019s summary judgment order after finding that genuine issues of fact existed regarding whether plaintiff did in fact comply with the conditions precedent of the fire insurance policy. Unlike Lee, it is clear plaintiff did not comply with the condition and that plaintiff only seeks relief from the mandatory nature of the condition. Furthermore, in Lee this Court stated that \u201c[s]ince the insurance policy clearly requires compliance with all of its requirements in order for plaintiff to maintain this action, plaintiff\u2019s failure to comply with any one of the conditions . . . as a matter of law would be sufficient grounds for upholding the order.\u201d Id. at 578, 320 S.E.2d at 415.\nFinally, we are not persuaded by plaintiffs arguments that the first recorded investigative interview constituted an examination under oath for purposes of compliance. See 5A Appleman, supra \u00a7 3549 (stating that an insured\u2019s recorded statements not given under oath are insufficient to meet the examination under oath requirement).\nAccordingly, the order of the trial court is affirmed.\nAffirmed.\nJudges WELLS and EAGLES concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Steven Klein for plaintiff appellant.", "Yates, McLamb & Weyher, by R. Scott Brown and 0. Craig Tierney, Jr., for defendant appellee." ], "corrections": "", "head_matter": "IRVING FINEBERG, Plaintiff v. STATE FARM FIRE AND CASUALTY CO., Defendant\nNo. 9315SC164\n(Filed 1 February 1994)\nInsurance \u00a7 1231 (NCI4th)\u2014 fire insurance \u2014requirement of examination under oath \u2014 heart patient\nThe trial court correctly granted summary judgment for defendant in an action on a fire insuranc\u00e9 policy where plaintiff gave an unsworn statement to defendant\u2019s employee, plaintiff submitted a sworn statement in his proof of loss, plaintiff did not submit to an examination under oath because he had already suffered five heart attacks, and defendant denied the claim. It is clear that plaintiff failed to comply with a stated condition precedent of the policy and the Court of Appeals declined to create an exception to the mandatory nature of the condition because the enactment of a specific exception in N.C.G.S. \u00a7 58-44-50 indicated a legislative intent to limit the general proliferation of exceptions. Finally, the first recorded investigative interview did not constitute an examination under oath for purposes of compliance.\nAm Jur 2d, Insurance \u00a7\u00a7 2009 et seq.\nAppeal by plaintiff from order entered 16 November 1992 by Judge Lester P. Martin in Alamance County Superior Court. Heard in the Court of Appeals 6 December 1993.\nOn 24 October 1991, plaintiff filed suit against defendant requesting that the court order defendant to pay pursuant to the fire insurance policy issued by defendant to plaintiff. Plaintiff alleged defendant issued a policy undertaking to indemnify and compensate plaintiff for loss due to fire, with maximum coverage set at $200,000.00, and that fire destroyed his home during the coverage period. Finally, plaintiff alleged compliance with all conditions and terms of the policy.\nDefendant\u2019s answer, filed 2 January 1992, admitted denial of plaintiff\u2019s claim. By way of defense, defendant alleged that plaintiff failed to submit to an examination under oath, as required by the policy, and that this refusal barred both recovery under the policy and filing suit. Accordingly, defendant moved for summary judgment on the basis that plaintiff failed to comply with all conditions precedent by failing to submit to an examination under oath.\nDefendant produced several affidavits in support of its motion. These affidavits revealed that plaintiff received several letters demanding an examination under oath yet failed to attend any of the scheduled examinations. The affidavits also revealed that Ken Davis, defendant\u2019s employee, took an unsworn statement from the plaintiff on 18 November 1988 as part of his investigation. Later, plaintiff submitted a sworn statement in his proof of loss on 19 December 1988. Mr. Davis confirmed that plaintiff never submitted to an examination under oath, as required by the policy terms, nor did he produce the documents requested in the notice of examination sent to plaintiff.\nPlaintiff also produced several affidavits in response to defendant\u2019s motion for summary judgment. In his own affidavit, plaintiff denied receiving defendant\u2019s letters requesting an examination. Plaintiff stated that he has had five heart attacks since 1975, moved to North Carolina in order to live in close proximity to Duke Hospital, and that stress causes him great anxiety and fear of another attack. Plaintiff claimed that his medical problems prevented him from submitting to an examination under oath and that he had proposed, alternatively, that he answer written questions under oath but that defendant rejected this proposal.\nPlaintiff\u2019s friend submitted an affidavit stating that he believed that the investigative questioning that took place in November had been an examination under oath. David Frid, M.D., plaintiff\u2019s treating physician, stated that stress can cause a heart patient severe anxiety and fear of getting another heart attack. Dr. Frid also confirmed that plaintiff had already suffered five heart attacks and moved to live in close proximity to a hospital.\nJudge Martin granted defendant\u2019s amended motion for summary judgment. From this order, plaintiff appeals.\nSteven Klein for plaintiff appellant.\nYates, McLamb & Weyher, by R. Scott Brown and 0. Craig Tierney, Jr., for defendant appellee." }, "file_name": "0545-01", "first_page_order": 575, "last_page_order": 579 }