{
  "id": 8550947,
  "name": "EDITH SINK PENNELL v. SECURITY INSURANCE COMPANY and NEW AMSTERDAM CASUALTY COMPANY",
  "name_abbreviation": "Pennell v. Security Insurance Co.",
  "decision_date": "1973-06-13",
  "docket_number": "No. 7321SC310",
  "first_page": "465",
  "last_page": "468",
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      "cite": "18 N.C. App. 465"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "cite": "175 S.E. 2d 725",
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      "reporter": "S.E.2d",
      "year": 1970,
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      "cite": "189 S.E. 2d 527",
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      "year": 1972,
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    {
      "cite": "14 N.C. App. 726",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1972,
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    {
      "cite": "38 S.E. 256",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1901,
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      "cite": "128 N.C. 64",
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    {
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      "year": 1950,
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    {
      "cite": "231 N.C. 452",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T21:14:36.293491+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Baley concur."
    ],
    "parties": [
      "EDITH SINK PENNELL v. SECURITY INSURANCE COMPANY and NEW AMSTERDAM CASUALTY COMPANY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe trial judge in substance, if not in form, allowed the defendants\u2019 motion for summary judgment.\nThe affidavit of defendants\u2019 Claims Manager, filed in support of their motion for summary judgment, tended to show that plaintiff had failed to comply with the requirements of the policy relating to filing a signed and sworn proof of loss, \u201cand further, that the defendants have never waived the one-year limitation of action clause in the policy.\u201d Plaintiff does not contend that she rendered defendants a signed and sworn formal proof of loss within sixty days of the loss, and it is obvious her action was not commenced within twelve months of the inception of the loss. Therefore, unless the record contains evidence that defendants waived the requirements of the policy relating to the filing of formal proof of loss and the institution of the action within twelve months, summary judgment for defendants was appropriate.\nIt appears to be well settled in this jurisdiction that an insurer, by the conduct and acts of its agents and adjusters, may waive the requirements in an insurance policy relating to the rendering of formal proofs of loss and the institution of an action within twelve months of the inception of a loss. Meekins v. Insurance Co., 231 N.C. 452, 57 S.E. 2d 777 (1950); Strause v. Ins. Co., 128 N.C. 64, 38 S.E. 256 (1901); Vail v. Insurance Co., 14 N.C. App. 726, 189 S.E. 2d 527 (1972); Horton v. Insurance Co., 9 N.C. App. 140, 175 S.E. 2d 725 (1970), cert. denied 277 N.C. 251 (1970).\nThe affidavits and exhibits filed by plaintiff in opposition to the motion for summary judgment, except where quoted, are summarized as follows:\nAfter the fire on 8 October 1968, plaintiff notified defendants within sixty days and visited the site of the fire with two of defendants\u2019 agents. Plaintiff gave the defendants an itemized list and value of the property destroyed in the fire. The defendants offered to pay the plaintiff, and she and her sons \u201ccontinuously\u201d negotiated with the defendants as to the amount of the loss. She and her sons \u201crepeatedly\u201d called the defendants and were assured her claim would be paid. Defendants never furnished plaintiff with proof of loss forms.\nPlaintiff received the following letter:\n\u201cGeneral\nAdjustment\nBureau, Inc. 611 Peters Creek Parkway\nP. 0. Box 448 \u2014 Winston-Salem, North Carolina 27102\nOctober 24, 1969\nMrs. Edith Sink Pennell P. 0. Box 1358 Winston-Salem, N. C.\nDear Mrs. Pennell:\nFire 10-8-68 Our File 23447-30339 Security Insurance Company Policy #H 93 2004\nIt is imperative that you or your representative contact me immediately concerning the above if you wish to pursue the matter. Otherwise, I am going to close my file. The policy contract has already been violated by you by not submitting Proof of Loss within ninety days of the date of the loss.\nYours very truly,\nW. O. Andrews, Jr.\nAdjuster\nWOAjr. :ajm\u201d\nWe hold that the evidence tending to show that the defendants offered to pay for the loss and continually negotiated with the plaintiff as to the amount, that the defendants repeatedly assured plaintiff that her claim would be paid, and that more than twelve months after the fire, the adjuster wrote the letter dated 24 October 1969, is sufficient to show that there is a genuine triable issue as to whether defendants waived the requirements of the policy relating to filing formal proof of loss and institution of the action within twelve months. The judgment appealed from is\nReversed.\nJudges Britt and Baley concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "White & Crumbier by Michael J. Lewis for plaintiff appellant.",
      "Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "EDITH SINK PENNELL v. SECURITY INSURANCE COMPANY and NEW AMSTERDAM CASUALTY COMPANY\nNo. 7321SC310\n(Filed 13 June 1973)\n1. Insurance \u00a7\u00a7 130, 137\u2014 fire policy \u2014 proof of loss \u2014 time limitations \u2014 waiver\nAn insurer, by the conduct and acts of its agents and adjusters, may waive the requirements in a fire insurance policy relating to the rendering of formal proofs of loss and the institution of an action within twelve months of the inception of the loss.\n2. Insurance \u00a7\u00a7 130, 137\u2014 fire policy \u2014 proof of loss \u2014 time limitations \u2014 genuine issue as to waiver\nIn an action on a fire policy, there was a genuine triable issue as to whether defendant insurers waived requirements of the policy relating to filing formal proof of loss and institution of an action within twelve months where plaintiff filed affidavits and exhibits tending to show that defendants offered to pay for the loss and continually negotiated with plaintiff as to the amount, that defendants repeatedly assured plaintiff her claim would be paid, and that defendants\u2019 adjuster wrote plaintiff more than twelve months after the fire that plaintiff or her representative should contact him immediately if she wished to pursue the matter.\nAppeal by plaintiff from Armstrong, Judge, 30 October 1972 Session of Superior Court held in Forsyth County.\nThis is a civil action instituted by plaintiff on a standard fire insurance policy issued by defendants to recover $10,000.00 for damages to her home and personal property located therein allegedly caused by fire on 8 October 1968.\nDefendants filed a motion for summary judgment, supported by an affidavit, on the grounds that plaintiff had failed to comply with the requirements of the policy relating to the filing of a signed proof of loss and the institution of the action within twelve months.\nPlaintiff filed affidavits and exhibits in opposition to the motion.\nThe trial court, after making detailed findings of fact and conclusions of law, entered a judgment dismissing plaintiff's claim.\nPlaintiff appealed.\nWhite & Crumbier by Michael J. Lewis for plaintiff appellant.\nHudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., for defendant appellees."
  },
  "file_name": "0465-01",
  "first_page_order": 489,
  "last_page_order": 492
}