{ "id": 11653191, "name": "PHC, INC., Plaintiff v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant", "name_abbreviation": "PHC, Inc. v. North Carolina Farm Bureau Mutual Insurance", "decision_date": "1998-06-16", "docket_number": "No. COA97-1118", "first_page": "801", "last_page": "807", "citations": [ { "type": "official", "cite": "129 N.C. App. 801" } ], "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": "478 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867588, 867557, 867528, 867672, 867675 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0733-03", "/nc/344/0733-04", "/nc/344/0733-02", "/nc/344/0733-01", "/nc/344/0733-05" ] }, { "cite": "473 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914717 ], "year": 1996, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0635-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "299 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562977, 8562958, 8563031, 8563002, 8562940 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0468-03", "/nc/307/0468-02", "/nc/307/0468-05", "/nc/307/0468-04", "/nc/307/0468-01" ] }, { "cite": "296 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525918 ], "year": 1982, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0145-01" ] }, { "cite": "200 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "284 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560879 ], "year": 1973, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0236-01" ] }, { "cite": "472 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "204" }, { "page": "203" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912142 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "140-41" }, { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0140-01" ] }, { "cite": "426 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547571 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0349-01" ] }, { "cite": "423 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "750" }, { "page": "748" } ], "opinion_index": 0 }, { "cite": "333 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550326 ], "year": 1992, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0148-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1996, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 1997, "opinion_index": 0 } ], "analysis": { "cardinality": 586, "char_count": 13654, "ocr_confidence": 0.75, "pagerank": { "raw": 2.4052673666857085e-07, "percentile": 0.799363399178871 }, "sha256": "fed666ede81fa08c45e74a0f0c85feec1842cb442093186880c08357042e2260", "simhash": "1:27ead106b63ae870", "word_count": 2227 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and LEWIS concur." ], "parties": [ "PHC, INC., Plaintiff v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "HORTON, Judge.\nDefendant North Carolina Farm Bureau Insurance Company (\u201cInsurance Company\u201d) contends the trial court erred in (I) awarding attorneys\u2019 fees to plaintiff, PHC, Inc., and (II) awarding prejudgment interest on the umpire\u2019s award.\nI.\nN.C. Gen. Stat. \u00a7 6-21.1 (1997) permits the trial court, in its discretion, to allow reasonable attorneys\u2019 fees to a litigant who (1) obtains a judgment for recovery of damages; (2) in the amount of $10,000 or less; (3) against an insurance company; (4) in a property damage suit; (5) where the insured is the plaintiff; (6) upon a finding by the court that there was an \u201cunwarranted refusal\u201d by defendant insurance company to pay the claim which is the basis for the suit. Defendant Insurance Company contends that under the facts of this case, plaintiff was not entitled to collect attorneys\u2019 fees in any amount. Further, defendant contends that in any event, there was no \u201cunwarranted refusal\u201d to pay the claim and the court erred in awarding attorneys\u2019 fees in any amount.\nThe first issue on appeal is whether a trial court can award attorneys\u2019 fees to a plaintiff pursuant to N.C. Gen. Stat. \u00a7 6-21.1 (1997), where the provisions of an automobile insurance policy provide an appraisal procedure for determining the value of an insured plaintiff\u2019s collision loss to his vehicle, and the amount of loss to the vehicle is determined through that procedure. The question presented is one of first impression in this jurisdiction.\nIn the instant case, the pertinent insurance policy provides in part:\nAPPRAISAL FOR PHYSICAL DAMAGE LOSS\nIf you and we disagree on the amount of \u201closs\u201d, either may demand an appraisal of the \u201closs\u201d. In this event, each party will select a competent appraiser. The two appraisers will select a competent and impartial umpire. The appraisers will state separately the actual cash value and amount of \u201closs\u201d. If they fail to agree, they will submit their differences to the umpire. A decision, in writing, agreed to by any two will be binding. Each party will:\na. Pay its chosen appraiser; and\nb. Bear the other expenses of the appraisal and umpire equally.\nIf we submit to an appraisal, we will still retain our right to deny the claim. (Emphasis added.)\nDefendant argues the quoted provision is an agreement to binding arbitration, so that the provisions of N.C. Gen. Stat. \u00a7 1-567.1 (1996), et seq., (Uniform Arbitration Act) apply. Our Supreme Court has already concluded that N.C. Gen. Stat. \u00a7 1-567.11 does not allow attorneys\u2019 fees to be awarded for work performed in arbitration proceedings, unless the parties specifically agree to and provide for such fees in the arbitration agreement and the fees are included in the arbitrator\u2019s award. Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 153-54, 423 S.E.2d 747, 750 (1992), reh\u2019g denied, 333 N.C. 349, 426 S.E.2d 708 (1993). Fees may be awarded to an attorney for services provided by that attorney before the case is ordered to binding arbitration. Lucas v. City of Charlotte, 123 N.C. App. 140, 140-41, 472 S.E.2d 203, 204 (1996).\nHowever, the instant case is not one involving the Uniform Arbitration Act. The policy provision quoted above provides for an \u201cappraisal\u201d procedure if the parties cannot agree on the amount of physical damage loss. None of the persons determining the amount of the loss are referred to as arbitrators, nor are the provisions of the Uniform Arbitration Act even obliquely mentioned. Most persuasive is the reservation by the Insurance Company of the right to deny the claim even after submitting the amount of loss for appraisal. The appraisal provisions of the insurance policy merely provide a mechanism whereby the parties can rapidly and inexpensively determine the amount of property loss without resorting to court process. We also note, by way of contrast, that the \u201cNorth Carolina Uninsured Motorists Coverage\u201d endorsement to the pertinent insurance policy contains a specific provision entitled \u201cARBITRATION,\u201d which sets out an arbitration procedure and provides that \u201c[l]ocal rules of law as to arbitration procedure and evidence will apply.\u201d\nWe further note that in Nucor, the Stock Purchase Agreement there in dispute \u201cprovided for the submission to arbitration of any dispute arising in connection with the Agreement.\u201d Nucor, 333 N.C. at 150, 423 S.E.2d at 748. In Lucas, the Mecklenburg County Superior Court referred the matters of plaintiff\u2019s personal injuries and property damage to arbitration with the consent of the parties. Lucas, 123 N.C. App. at 140, 472 S.E.2d at 203.\nIn the case sub judice, the matter of plaintiffs property damage was submitted to non-binding arbitration pursuant to N.C. Gen. Stat. \u00a7 7A-37.1 (1995) and an award was made by an arbitrator on 11 April 1995 with defendant Insurance Company appealing from that award. On motion of defendant to compel \u201carbitration\u201d on the amount of plaintiff\u2019s property loss, the trial court then entered an order on 3 May 1995 granting defendant\u2019s motion, and providing that the \u201cprocedure to be followed for the arbitration is as set forth in the policy of insurance.\u201d Despite the language of the trial court, the procedure set out in the policy of insurance is not arbitration within the meaning of the Uniform Arbitration Act and an award of attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1 is not barred by the trial court\u2019s inadvertent reference to arbitration.\nThe next question is whether there was an \u201cunwarranted refusal to pay\u201d within the meaning of N.C. Gen. Stat. \u00a7 6-21.1. Defendant makes a persuasive argument that this suit was filed a little more than two months after the damage to plaintiff\u2019s automobile, that negotiations were ongoing at that time between plaintiff and defendant, and that defendant\u2019s offers were relatively close to the amount eventually awarded to plaintiff for its property damage. The important distinction is that, although defendant agreed at all times that it owed plaintiff some amount for its property loss, defendant refused to \u201cpay\u201d any amount without receiving a release from liability and the title to plaintiff\u2019s vehicle. In order to receive \u201cpayment,\u201d plaintiff would have to accept an amount it believed was less than its loss. Although defendant made offers from time to time, one of which was only some $600 from the amount finally awarded plaintiff, defendant refused to pay the undisputed amount of plaintiff\u2019s loss without a full release.\nN.C. Gen. Stat. \u00a7 6-21.1 is remedial legislation which allows an insured to employ counsel to bring suit to recover relatively small damages. Without the assistance of the statute, many insureds suffering loss would be unable to afford the costs of litigation, particularly attorneys\u2019 fees. Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973). The award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.1 is in the discretion of the trial judge and will be reversed only upon a showing of abuse of discretion. Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 155, 296 S.E.2d 302, 309 (1982), disc. review denied, 307 N.C. 468, 299 S.E.2d 221 (1983).\nUnder the circumstances of this case, we hold that defendant\u2019s refusal to pay at least the undisputed amount of loss to plaintiff was unwarranted, and the trial court properly awarded attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 6-21.1. We also note that by stipulation of the parties, the \u201camount and reasonableness of the attorneys\u2019 fees and costs awarded by the Court\u201d are not before us.\nII.\nN.C. Gen. Stat. \u00a7 24-5 (1991) provides that a judgment for breach of contract bears interest from the date of breach of the underlying contract. Defendant contends the trial court erred in awarding prejudgment interest in this case, since the umpire\u2019s award, which was confirmed by the trial court, did not include prejudgment interest. Again, defendant confuses this appraisal procedure with arbitration under the Uniform Arbitration Act.\nDuring the trial of this matter, the parties stipulated in open court that \u201cissues relating to prejudgment interest would be decided by the Court rather than by the Jury[.]\u201d The trial court awarded plaintiff prejudgment interest in its 28 April 1997 interlocutory judgment. However, defendant has waived its right to complain about the award of interest in this case since it did not designate the interlocutory judgment in its notice of appeal. The notice of appeal must \u201cdesignate the judgment or order from which [the] appeal is taken; [and] this Court is not vested with jurisdiction unless the requirements of this rule are satisfied.\u201d Boger v. Gatton, 123 N.C. App. 635, 637, 473 S.E.2d 672, 675, disc. review denied, 344 N.C. 733, 478 S.E.2d 3 (1996). Therefore, this Court does not have jurisdiction to review that judgment.\nHowever, in the interests of justice and pursuant to N.C.R. App. R 21, we have carefully considered defendant\u2019s arguments. In arguments before the trial court, defendant\u2019s counsel stated that \u201c[regarding the interest, I\u2019ll let the Court decide that[.] [I]t would appear to me that they\u2019re entitled to interest from the date of filing.\u201d N.C. Gen. Stat. \u00a7 24-5 (1991) allows plaintiff to recover interest from the date of breach of the insurance contract. The trial court found the date of breach to be 14 December 1994 and awarded interest from that date. Defendant\u2019s assignments of error relating to the award of prejudgment interest are without merit.\nFor the foregoing reasons, the judgment of the trial court is\nAffirmed.\nJudges GREENE and LEWIS concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "Bugg & Wolf, P.A., by William J. Wolf, for plaintiff appellee.", "Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for defendant appellant." ], "corrections": "", "head_matter": "PHC, INC., Plaintiff v. NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant\nNo. COA97-1118\n(Filed 16 June 1998)\n1. Costs \u00a7 30 (NCI4th)\u2014 automobile accident \u2014 determination of amount of damage to vehicle \u2014 award of attorneys\u2019 fees\nThe trial court did not err by awarding plaintiff attorneys\u2019 fees in a claim arising from an automobile collision where the value of the vehicle destroyed was determined by an appraisal procedure set out in the insurance policy. Although defendant argues that the policy provision is an agreement to binding arbitration, so that attorneys\u2019 fees may not be awarded, the policy provision provides for an \u201cappraisal\u201d procedure, none of the persons determining the amount of the loss are referred to as arbitrators, the provisions of the Uniform Arbitration Act are not even obliquely mentioned, and the policy contains a reservation by the insurance company of the right to deny the claim even after submitting the amount of loss for appraisal. Despite language by the trial court, the procedure set out in the policy is not an arbitration and an award of attorneys\u2019 fees pursuant to N.C.G.S. \u00a7 6-21.1 is not barred.\n2. Costs \u00a7 30 (NCI4th)\u2014 automobile collision \u2014 determination of amount of damage to automobile \u2014 attorneys\u2019 fees\nThe trial court did not abuse its discretion by awarding plaintiff attorneys\u2019 fees under N.C.G.S. \u00a7 6-21.1 for an unwarranted refusal to pay in an action arising from an automobile collision where the parties determined the amount of damage to the vehicle through an appraisal procedure set forth in the policy. Although defendant agreed at all times that it owed some amount for the property loss, it refused to pay the undisputed amount without a full release.\n3. Appeal and Error \u00a7 362 (NCI4th)\u2014 prejudgment interest determined in interlocutory judgment \u2014 judgment not in notice of appeal \u2014 no appellate jurisdiction\nThe Court of Appeals did not have jurisdiction to review defendant\u2019s contention that the trial court erred by awarding prejudgment interest because the award was in an interlocutory judgment which was not designated in the notice of appeal. The Court of Appeals is without jurisdiction unless the notice of appeal designates the judgment or order from which the appeal is taken.\nAppeal by defendant from amended final judgment and award of costs entered 9 July 1997 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 29 April 1998.\nPlaintiff owned a 1989 Ford E250 work van which was destroyed in an accident on 14 October 1994. An insurance policy issued by defendant provided both liability and property damage coverage on the Ford van. Plaintiff reported the accident to defendant on 21 October 1994. Defendant investigated the loss and attempted to negotiate a settlement with plaintiff. The parties could not agree on the amount of plaintiff\u2019s loss, and plaintiff filed a complaint on 28 December 1994, seeking damages for breach of contract, and unfair and deceptive trade practices against defendant. After filing an answer, defendant moved that the court require plaintiff to abide by the terms of the insurance contract which set out the terms of an appraisal procedure. On 3 May 1995, the trial court ordered that the value of the vehicle be determined by \u201carbitration\u201d as set out in the insurance policy, but retained jurisdiction of the matter. Eventually, the parties complied with the appraisal procedure and an umpire\u2019s report was filed with the court setting the value of the Ford van at $7,300, less the applicable deductible. The umpire\u2019s report was confirmed by the trial court on 20 March 1997.\nThe case was heard before a jury during the April 1997 Session of Durham County Superior Court on the unfair and deceptive trade practices claim. The jury answered all issues in favor of the defendant. The trial court granted plaintiff\u2019s motion for attorneys\u2019 fees and for prejudgment interest. Thereafter, defendant appealed.\nBugg & Wolf, P.A., by William J. Wolf, for plaintiff appellee.\nHaywood, Denny & Miller, L.L.P., by Robert E. Levin, for defendant appellant." }, "file_name": "0801-01", "first_page_order": 841, "last_page_order": 847 }