{ "id": 4157901, "name": "AUDREY CARTER, Plaintiff v. WEST AMERICAN INSURANCE CO., GRAHAM UNDERWRITERS AGENCY, INC., and FRANK BIGGERSTAFF, Defendants", "name_abbreviation": "Carter v. West American Insurance", "decision_date": "2008-05-20", "docket_number": "No. COA07-781", "first_page": "532", "last_page": "542", "citations": [ { "type": "official", "cite": "190 N.C. App. 532" } ], "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": "646 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638848 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "554", "parenthetical": "internal citations, quotation marks, ellipses and footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0550-01" ] }, { "cite": "653 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639972 ], "year": 2007, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0006-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "year": 2008, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "635 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636728 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0598-01" ] }, { "cite": "631 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636087 ], "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0001-01" ] }, { "cite": "648 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639088 ], "year": 2007, "pin_cites": [ { "page": "554", "parenthetical": "addressing and overruling an appellee's argument similar in substance to that in Freeman but which was labeled \"Argument\" in the brief" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0552-01" ] }, { "cite": "657 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640473 ], "year": 2008, "pin_cites": [ { "page": "392", "parenthetical": "citation, internal brackets and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0389-01" ] }, { "cite": "N.C. 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Stat. \u00a7 58-63-15(ll)(f)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0231-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "507 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8551214 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0215-01" ] }, { "cite": "165 S.E. 347", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "349", "parenthetical": "affirming denial of motion to dismiss action for reformation where the record contained evidence that a lien subordination provision had been made known to the lender's agent but was omitted from the written contract which the lender's agent induced the borrower to sign" } ], "opinion_index": 0 }, { "cite": "203 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604957 ], "year": 1932, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0205-01" ] }, { "cite": "249 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "732" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549915 ], "year": 1978, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0001-01" ] }, { "cite": "590 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "19", "parenthetical": "summarizing the holding of Wachovia Mortg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914775 ], "year": 2004, "pin_cites": [ { "page": "86", "parenthetical": "summarizing the holding of Wachovia Mortg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. 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App.", "case_ids": [ 8210794 ], "year": 2007, "pin_cites": [ { "page": "514-15", "parenthetical": "addressing and overruling an appellee's argument similar in substance to that in Freeman but which was labeled \"Argument\" in the brief" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0511-01" ] }, { "cite": "189 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. 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WEST AMERICAN INSURANCE CO., GRAHAM UNDERWRITERS AGENCY, INC., and FRANK BIGGERSTAFF, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff Audrey Carter appeals from the trial court order granting summary judgment in favor of defendants West American Insurance Company, Inc. (\u201cWest American\u201d) and Graham Underwriters Agency, Inc. (\u201cGraham\u201d) as to all claims. For the following reasons, we affirm.\nI. Factual Background\nThe evidence in the record, drawing all inferences in favor of plaintiff, Collingwood v. G. E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989), tends to show the following: From 1965 to 2001, plaintiffs home was insured under policies procured by defendant Graham, an insurance agent. Plaintiffs husband, Haywood Jackson Carter (\u201cMr. Carter\u201d or \u201cHaywood\u201d), handled all of the family\u2019s insurance matters until his death in 1985. Sometime before Mr. Carter died, he told plaintiff that the home was insured with \u201creplacement insurance.\u201d Shortly before Mr. Carter died, plaintiff had the carpet in her home replaced by insurance because of water damage. The insurance adjuster who handled the claim told her at that time that she had \u201creplacement insurance.\u201d After Mr. Carter died, plaintiff told Mary Uttley, an employee of defendant Graham, \u201cwhen [you] writ[e] the insurance [you] kn[ow] what Haywood always did, and he believed in good coverage and [you] just. . . cover it.\u201d\nFrom February 1991 to February 2001, plaintiffs home was insured under a policy issued by defendant West American which was procured for plaintiff by defendant Graham. The dwelling coverage amount of the policy regularly increased to reflect current local construction costs. Those increases amounted to, approximately, four percent in February 1997, three percent in February 1998, one percent in February 1999, and four percent in February 2000. As of 25 July 2000, the dwelling coverage on plaintiffs home was one hundred nineteen thousand five hundred dollars ($119,500).\nPlaintiff\u2019s home was appraised on 25 August 1998 for the purpose of re-financing: The total estimated \u201ccost new\u201d on the appraisal was one hundred twenty-nine thousand four hundred ninety-six dollars ($129,496). Graham was not advised of the appraisal.\nOn 25 July 2000, plaintiff\u2019s home suffered extensive damage from a fire which started in an electrical outlet, rendering the home uninhabitable. The fire was reported to West American the same day. On or about 14 August 2000, plaintiff\u2019s son Larry Carter estimated the cost to replace the house at over two hundred thousand dollars ($200,000), and indicated he would sue on account of plaintiff being underinsured. In October 2000, West American offered to pay plaintiff $119,500, the limit of her policy, for the loss of her dwelling. She refused. On or about 11 December 2000, plaintiff hired counsel to represent her with respect to her insurance claim.\nOn 14 June 2001, Ohio Casualty Group (OCG), the parent company of West American, tendered a check to plaintiff in the amount of one hundred twenty-five thousand four hundred seventy-five dollars ($125,475). The memorandum on the face of the check read:\nSETTLEMENT OF FIRE AS FOLLOWS:\nDWELLING $119,500.00\nDEBRIS REMOVAL $5,975.00\nREFLECTS TOTAL RECOVERABLE UNDER\nTHESE COVERAGES\nBy letter dated 31 October 2001, plaintiff, through her attorney, objected to the wording of the memorandum and requested that OCG reissue the check without the memorandum. OCG reissued the check on 31 January 2002 with a memorandum on the face of the check which read:\nFIRE DAMAGE TO DWELLING:\nDWELLING $119,500.00\nDEBRIS REMOVAL $5,975.00\nPlaintiff deposited the 31 January 2002 check.\nII. Procedural History\nPlaintiff filed a complaint on 15 September 2005, seeking damages from defendant West American for unfair or deceptive trade practices (UDTP), breach of contract, and willful, wanton and oppressive breach of contract. In the same complaint, plaintiff sought damages from defendant Graham for breach of contract and breach of fiduciary duty. The gravamen of the complaint was that even though the written contract of insurance set the dwelling coverage amount at $119,500, defendants had orally agreed or impliedly assumed a duty to cover whatever it cost to replace the house, which plaintiff estimated at two hundred forty-four thousand seven hundred sixty dollars ($244,760). Defendant Graham answered on or about 22 December 2005, denying the existence of any oral agreement to pay for the cost of replacing the house beyond the written coverage amount, denying it assumed any duty to periodically appraise the dwelling and increase the written coverage amount, and asserting plaintiffs contributory negligence as an affirmative defense. The answer of Defendant West American was filed on 30 January 2006 arid contained substantially similar defenses.\nDefendant West American filed a motion for summary judgment on or about 8 September 2006. Defendant Graham filed a motion for summary judgment on or about 12 October 2006. The trial court entered summary judgment in favor of both defendants as to all claims on or about 27 November 2006. Plaintiff appeals from entry of summary judgment in favor of defendants.\nIII. Procedural Issues\nA. Rules Violations\nDefendants argue that plaintiffs appeal should be dismissed because of violations of the Rules of Appellate Procedure. However, we will not address this argument because \u201csuch motions may not be raised in a brief, but rather must be made in accordance with Rule 37 of the North Carolina Rules of Appellate Procedure.\u201d Freeman v. Rothrock, 189 N.C. App. 31, 35, 657 S.E.2d 389, 392 (2008) (citation, internal brackets and quotation marks omitted) (declining to address appellee\u2019s argument that appeal should be dismissed for failure to follow the Rules of Appellate Procedure when the argument was labeled \u201cMotion to Dismiss\u201d in the brief); but see Cotter v. Cotter, 185 N.C. App. 511, 514-15, 648 S.E.2d 552, 554 (2007) (addressing and overruling an appellee\u2019s argument similar in substance to that in Freeman but which was labeled \u201cArgument\u201d in the brief), and Hammonds v. Lumbee River Elec. Membership Corp., 178 N.C. App. 1, 12, 631 S.E.2d 1, 9 (addressing and overruling an appellee\u2019s argument similar in substance to that in Freeman but which was labeled \u201cArgument\u201d in the brief), disc. review denied, 360 N.C. 576, 635 S.E.2d 598 (2006). Nevertheless, we note of our own initiative that failure of plaintiff\u2019s counsel to include a statement of the grounds for appellate review and failure to include a standard of review for each question presented as required by Rule 28 are \u201cindicative of inartful appellate advocacy,\u201d Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 199, 657 S.E.2d 361, 365 (2008), for which plaintiff\u2019s counsel should be chastised \u201cwith an admonishment to \u25a0 exercise more diligence ... in briefs prepared for this Court.\u201d State v. Parker, 187 N.C. App. 131, 135, 653 S.E.2d 6, 8 (2007).\nB. Standard of Review\nThe trial court must grant summary judgment upon a party\u2019s motion when there is no genuine issue as to any material fact and any party is entitled to a judgment as a matter of law. . . . Summary judgment is appropriate if: (1) the non-moving party does not have a factual basis for each essential element of its claim; (2) the facts are not disputed and only a question of law remains; or (3) if the non-moving party is unable to overcome an affirmative defense offered by the moving party[.]\nGriffith v. Glen Wood Co., Inc., 184 N.C. App. 206, 210, 646 S.E.2d 550, 554 (2007) (internal citations, quotation marks, ellipses and footnote omitted). \u201cOn appeal, an order granting summary judgment is reviewed de novo[,}\u2019\u2019 id., with the evidence in the record viewed in the light most favorable to the plaintiff, Collingwood, 324 N.C. at 66, 376 S.E.2d at 427.\nIV. Substantive Issues\nA. Breach of Contract\n\u201cThe elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.\u201d Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). It is undisputed that defendant West American paid the entire amount promised in the written contract for dwelling insurance coverage: $119,500. However, plaintiff contends that the written contract did not reflect the true agreement of the parties, and should be reformed on account of the inequitable conduct of defendant Graham as agent for West American.\nIn support of her argument for reformation, plaintiff states the law of equitable reformation by quoting from Williams v. Greensboro Fire Ins. Co., \u201c[i]t is well settled that in equity a written instrument, including insurance policies, can be reformed by parol evidence, for . . . inequitable conduct . . .\u201d 209 N.C. 765, 769, 185 S.E. 21, 23 (1936). However, the ellipses in plaintiff\u2019s statement of the law omit an important portion of the law. Stated fully in relevant part, \u201cin equity a written instrument, including insurance policies, can be reformed by parole evidence, for . . . the mistake of one superinduced by the fraud of the other or inequitable conduct of the other.\" Id. (emphasis added); see also McCallum v. Old Republic Life Ins. Co., 259 N.C. 573, 577, 131 S.E.2d 435, 438 (1963) (\u201cFraud or inequitable conduct, to warrant relief by way of reformation, has been held to consist in doing acts, or omitting to do acts, which the court finds to be unconscionable, as in drafting, or having drafted, an instrument contrary to the previous understanding of the parties and permitting the other party to sign it without informing him thereof.\u201d (Citation, quotation marks and ellipses omitted.)) Furthermore, reformation is available only when the written agreement \u201cleaves it doubtful or uncertain as to what the agreement [intended by the parties] was.\u201d Williams, 209 N.C. at 771, 185 S.E. at 24; see also McCallum, 259 N.C. at 579, 131 S.E.2d at 439 (\u201cThe power of a court of equity to reform written instruments so as to speak the real contract of the parties is beyond question[.]\u201d (Citation and quotation marks omitted.)); Allen v. Roanoke R. & Lumber Co., 171 N.C. 339, 342, 88 S.E. 492, 493 (1916) (\u201c[I]n order to . . . exercise [equitable jurisdiction] for the purpose of reforming the instrument because it does not properly express the agreement of the parties, it is established that the mistake must be mutual, or it must be the mistake of one superinduced by the fraud of the other.\u201d) (Emphasis added.) (cited in 27 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts \u00a7 70:26 n.32 (4th ed. 2003)). Thus, to survive summary judgment in an action for equitable reformation of a contract on the basis of inequitable conduct by the promisor, a plaintiff must show a factual basis for four essential elements: (1) the written agreement did not properly express the intent of the parties, Allen, 171 N.C. at 342, 88 S.E. at 493, (2) the conduct of the promisor caused the improper expression, (3) relevant, competent evidence exists outside the written documents which shows the intention of the parties, Williams, 209 N.C. at 769, 185 S.E. at 23, and (4) injustice will result if the contract is not rewritten, Swan Quarter Farms, Inc. v. Spencer, 133 N.C. App. 106, 110, 514 S.E.2d 735, 738, disc. review denied, 350 N.C. 850, 539 S.E.2d 651 (1999).\nPlaintiff argues that a genuine issue of material fact on this issue is created by evidence from her affidavit filed 18 September 2006, after defendant West American\u2019s motion for summary judgment, in which she stated:\nSeveral years before the fire, and preceding the most recent update in insurance, I requested that Graham make sure that I had adequate replacement cost coverage for my house and its contents, and Graham specifically agreed to do this. After this discussion, Graham came back to me and indicated and confirmed that they had in fact placed adequate replacement cost coverage insurance on my house and its contents.\nHowever, her sworn deposition testimony on 24 March 2004 was:\nQ[:] . . . What did you talk to Mary Uttley [employee of Graham] about the last time you spoke to her before the fire?\nA[:] I do remember telling her that when she was writing the insurance that she knew what Haywood always did, and he believed in good coverage and for her just to cover it. And I trusted her. She covered it.\nQ[:] . . . [Y]ou\u2019ve testified that your husband told you you had replacement cost and [Mary] Uttley said that you were fully covered, and that a USF&G adjustor in the [19]80s said that you had replacement cost coverage?\nA[:] Right.\nQ[:] Is there anything else, any other basis for your statement of your belief that you had replacement cost coverage before the fire?\nA[:] I don\u2019t know of any.\n\u201c[A] non-moving party cannot create an issue of fact to defeat summary judgment simply by filing an affidavit contradicting his prior sworn testimony[.]\u201d Belcher v. Fleetwood Enters., Inc., 162 N.C. App. 80, 86, 590 S.E.2d 15, 19 (2004) (summarizing the holding of Wachovia Mortg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978). Therefore, we disregard the evidence in the affidavit which contradicts plaintiff\u2019s sworn deposition testimony.\nViewing the evidence in the light most favorable to plaintiff, the records shows only that about fifteen years before the fire, plaintiff requested that Graham continue to provide her with the same insurance provided to Mr. Carter. Plaintiff provided no evidence of any action by defendants to change from the type and amount of coverage provided to Mr. Carter. Plaintiff\u2019s dwelling coverage was regularly adjusted for inflation, and the coverage was for more than 92% of the home\u2019s value according to the appraisal prepared less than two years before the fire. The dwelling coverage amount was clearly stated on the face of the policy, and there is no evidence that plaintiff was unable to read and understand the policy. Plaintiff simply has not provided a factual basis to support equitable reformation of the insurance policy. See, e.g., McCallum, 259 N.C. at 581-82, 131 S.E.2d at 441 (reversing dismissal of action for reformation when plaintiff alleged that a one-year life insurance policy was purchased to secure a loan, the effective date of the insurance policy was a few days before the loan was disbursed and the insured died after expiration of the insurance policy but less than one year from the date the loan was disbursed); Hubbard & Co. v. Horne, 203 N.C. 205, 209, 165 S.E. 347, 349 (1932) (affirming denial of motion to dismiss action for reformation wh\u00e9re the record contained evidence that a lien subordination provision had been made known to the lender\u2019s agent but was omitted from the written contract which the lender\u2019s agent induced the borrower to sign); Transit, Inc. v. Casualty Co., 20 N.C. App. 215, 201 S.E.2d 216 (1973) (affirming reformation of insurance contract for inequitable conduct when the insurer inserted a mileage limit into a vehicle insurance policy and did not inform the insured of the insertion even though the insurance agent knew the insured\u2019s buses routinely traveled more than the mileage limit), aff\u2019d, 285 N.C. 541, 206 S.E.2d 155 (1974).\nB Breach of Fiduciary Duty\nPlaintiff next contends that defendant Graham breached a fiduciary duty to procure insurance for her. She contends that her affidavit cited- supra, along with expert testimony in the record stating that pursuant to a loss claim in 1997 the insurer should have evaluated her insurance and advised her to increase the coverage if it was not sufficient, constituted an adequate factual basis for this claim.\nWhere an insurance agent or broker promises, or gives some affirmative assurance, that he will procure or renew a policy of insurance under circumstances which lull the insured into the belief that such insurance has been effected, the law will impose upon the broker or agent the obligation to perform the duty which he has thus assumed.\nBarnett v. Security Ins. Co. of Hartford, 84 N.C. App. 376, 378, 352 S.E.2d 855, 857 (1987) (citations and quotation marks omitted). Further, where the insured in reliance on the affirmative representation of the insurer, \u201cmistakenly believed that certain items were covered by insurance, and did not seek additional coverage[,]\u201d the insured has a cause of action for negligence. R-Anell Homes v. Alexander & Alexander, 62 N.C. App. 653, 657, 303 S.E.2d 573, 576 (1983).\nOther than the disregarded evidence in plaintiffs affidavit discussed supra, there is no evidence in the record that Graham gave affirmative assurance to procure an insurance policy, other than to renew the policy Mr. Carter had purchased. There is no evidence in the record that Mr. Carter had purchased a policy other than the one in effect on the date of the fire: a dwelling policy that regularly adjusted for inflation in local construction costs.\nBarnett contains dicta which states, \u201c[additionally, if in their prior dealings, the agent has customarily taken care of the customer\u2019s insurance needs without consulting the insured, then a legal duty to procure additional insurance may arise without express orders from the customers and acceptance by the agent.\u201d Barnett, 84 N.C. App. at 378, 352 S.E.2d at 857. However, we decline plaintiff\u2019s invitation to extend Barnett and R-Anell Homes to include the case sub judice, where the insurer in fact renewed the insured\u2019s coverage for the property specifically named in the policy. See Baggett v. Summerlin Ins. & Realty, Inc., 143 N.C. App. 43, 55, 545 S.E.2d 462, 469 (Tyson, J., dissenting on the basis that R-Anell Homes policy contained flood insurance and the policy expressly excluded coverage for flood losses), rvs\u2019dper curiam, 354 N.C. 347, 554 S.E.2d 336 (2001) (adopting the reasoning of the dissent).\nC. Unfair or Deceptive Trade Practices\nPlaintiff contends that the trial court erred when it granted summary judgment on her claim for unfair or deceptive trade practices in favor of defendants. We disagree.\nPlaintiff argues that evidence of the following acts by defendant West American is sufficient to survive summary judgment on her claim of unfair and deceptive trade practices: (1) defendant West American took eighteen months to pay plaintiffs claim for the dwelling and nearly three years to pay the personalty claim \u201cnotwithstanding that there was no dispute regarding coverage,\u201d (2) defendant West American did not cancel the policy until it expired on 8 February 2001, (3) the adjuster told plaintiff to pretend that she was not represented by counsel so that they could continue to confer directly, and (4) defendant West American tendered payment with a memorandum on the check that attempted to limit its exposure.\nTo succeed on a claim for UDTP, a plaintiff must prove: \u201c(1) defendants committed an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that plaintiff was injured thereby.\u201d First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998); N.C. Gen. Stat. \u00a7 75-1.1 (2005). \u201cA practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). Pursuant to an insurance policy, \u201c \u2018[n]ot attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear,\u2019 \u201d Country Club of Johnston Cty., Inc. v. U. S. Fidelity & Guar. Co., 150 N.C. App. 231, 247, 563 S.E.2d 269, 280 (2002) (quoting N.C. Gen. Stat. \u00a7 58-63-15(ll)(f)), is \u201cinherently unfair, unscrupulous, and injurious to consumers!,]\u201d Id. '\nPlaintiff\u2019s assertion that \u201cthere was no dispute regarding coverage\u201d is manifestly contrary to plenary evidence in the record. Plaintiff was offered the full amount of .the dwelling policy limits in October 2000, but she chose to refuse it and hire an attorney. Further, plaintiff\u2019s refusal to accept the tender of $125,475 on 14 June 2001 is not an unfair or deceptive act on the part of West American. West American\u2019s failure to cancel the policy before it expired was neither unfair nor deceptive when plaintiff had not yet filed an inventory of the cont\u00e9nts as required by the policy. Advising plaintiff to pretend that she was not represented by counsel may be inappropriate, but there is no evidence that plaintiff suffered damages as a result, as required in a claim for unfair or deceptive trade practices. First Atl. Mgmt. Corp., 131 N.C. App. at 252, 507 S.E.2d at 63. Finally, there was nothing deceptive about the memorandum on the 14 June 2001 tender of payment, as the words \u201cREFLECTS TOTAL RECOVERABLE UNDER THESE COVERAGES\u201d accurately represented the terms of plaintiffs insurance policy. In sum, plaintiff has forecast no evidence that she was injured by any unfair or deceptive act on the part of defendants.\nV. Conclusion \u2022\nPlaintiff failed to forecast evidence in support of the essential elements for any of her claims. Accordingly, we affirm the trial court order granting summary judgment in favor of defendants as to all. claims.\nAFFIRMED.\nJudges HUNTER and CALABRIA concur.\n. The complaint originally named Frank Biggerstaff as a defendant, but he was dismissed without prejudice from the lawsuit before entry of summary judgment.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Law Offices of Jonathan S. Dills, P.A. by Jonathan S. Dills, for plaintiff-appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Reid Russell, for defendant-appellee West American Insurance Company.", "Teague, Rotenstreich, Stanaland, Fox & Holt, LLP, by Stephen G. Teague, for defendant-appellee Graham Underwriters Agency, Inc." ], "corrections": "", "head_matter": "AUDREY CARTER, Plaintiff v. WEST AMERICAN INSURANCE CO., GRAHAM UNDERWRITERS AGENCY, INC., and FRANK BIGGERSTAFF, Defendants\nNo. COA07-781\n(Filed 20 May 2008)\n1. Appeal and Error\u2014 violations of Rules \u2014 raised in brief\u2014 not considered\nDefendant\u2019s argument that plaintiff\u2019s appeal should be dismissed because of violations of the Rules of Appellate Procedure was not addressed where defendant attempted to raise this motion in a brief rather than in accordance with Rule 37 of the Rules of Appellate Procedure..\n2. Insurance\u2014 replacement value of widow\u2019s house \u2014 equitable reform of policy \u2014 denied\nPlaintiff did not provide a factual basis to support equitable reformation of an insurance policy on a house destroyed by a fire where she had requested fifteen years earlier that she be provided with the same insurance her deceased husband had carried, there was no evidence of any action by defendants to change from the type and amount of coverage that had been provided to the husband, the coverage was regularly adjusted for inflation and was for more than 92% of the home\u2019s value according to an appraisal less than two years before the fire, the coverage amount was clearly stated on the face of the policy, and there is no evidence that plaintiff was not able to understand the policy.\n3. Insurance\u2014 fiduciary duty of agent to procure policy \u2014 previous policy continued \u2014 summary judgment for agent\nSummary judgment was properly granted for defendant-insurance agent on a claim that he had breached a fiduciary duty to procure insurance for plaintiff that covered the replacement cost of her home. There was no evidence (except evidence from plaintiff\u2019s affidavit which was disregarded) that the agent gave an affirmative assurance to procure an insurance policy, other than to renew the policy plaintiff\u2019s deceased husband had purchased, and there is no evidence that the deceased husband had purchased a policy other than the one in effect on the date of the fire.\n4. Unfair Trade Practices\u2014 insurance coverage \u2014 no evidence of damages \u2014 summary judgment for defendant\nThe trial court did not err by granting summary judgment for defendants on a claim for unfair and deceptive trade practices arising from the insurance coverage of a house fire where plaintiff did not forecast evidence that she was injured by any unfair or deceptive act on the part of defendants.\nAppeal by plaintiff from order entered 27 November 2006 by Judge W. Osmond Smith, III, in Superior Court, Alamance County. Heard in the Court of Appeals 9 January 2008.\nLaw Offices of Jonathan S. Dills, P.A. by Jonathan S. Dills, for plaintiff-appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Reid Russell, for defendant-appellee West American Insurance Company.\nTeague, Rotenstreich, Stanaland, Fox & Holt, LLP, by Stephen G. Teague, for defendant-appellee Graham Underwriters Agency, Inc." }, "file_name": "0532-01", "first_page_order": 564, "last_page_order": 574 }