{ "id": 3821410, "name": "DAVID MICHAEL BAIN and DAVID H. BAIN, Plaintiffs v. UNITRIN AUTO AND HOME INSURANCE COMPANY, Defendant", "name_abbreviation": "Bain v. Unitrin Auto & Home Insurance", "decision_date": "2011-03-15", "docket_number": "No. COA09-1524", "first_page": "398", "last_page": "409", "citations": [ { "type": "official", "cite": "210 N.C. App. 398" } ], "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": "599 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631440, 12631439 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0038-01", "/se2d/599/0038-02" ] }, { "cite": "358 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631461, 12631462, 12631463, 12631465, 12631466, 12631467, 12631440, 12631414 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0040-02", "/se2d/599/0041-02", "/se2d/599/0041-01", "/se2d/599/0042-01", "/se2d/599/0042-02", "/se2d/599/0043-02", "/se2d/599/0038-01", "/se2d/598/0381-01" ] }, { "cite": "653 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639956 ], "year": 2007, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0400-01" ] }, { "cite": "2006 WL 4092436", "category": "reporters:specialty_west", "reporter": "WL", "weight": 5, "year": 2006, "pin_cites": [ { "page": "*7" }, { "page": "*5" }, { "page": "*10" } ], "opinion_index": 0 }, { "cite": "2006 U.S. Dist. LEXIS 95517", "category": "reporters:specialty_lexis", "reporter": "U.S. Dist. LEXIS", "year": 2006, "opinion_index": 0 }, { "cite": "536 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "510 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237254 ], "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0160-01" ] }, { "cite": "594 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "429" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920701 ], "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0748-01" ] }, { "cite": "369 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "322 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519016 ], "year": 1988, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0567-01" ] }, { "cite": "362 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150039 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0027-01" ] }, { "cite": "407 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "329 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555126 ], "year": 1991, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0603-01" ] }, { "cite": "384 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1989, "pin_cites": [ { "page": "37-38" }, { "page": "39" }, { "page": "46" }, { "page": "46", "parenthetical": "emphasis added" }, { "page": "46" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522929 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "665" }, { "page": "680" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0663-01" ] } ], "analysis": { "cardinality": 977, "char_count": 26773, "ocr_confidence": 0.725, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.2962354175861218 }, "sha256": "6db5d18eebbed34be325bef5e3eb1e6f326e84fc1de5df5b18075822353e29bd", "simhash": "1:a5f9dde004368004", "word_count": 4289 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and STEPHENS concur." ], "parties": [ "DAVID MICHAEL BAIN and DAVID H. BAIN, Plaintiffs v. UNITRIN AUTO AND HOME INSURANCE COMPANY, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiffs David Michael Bain (\u201cMichael Bain\u201d) and David H. Bain (\u201cDavid Bain\u201d) appeal from the trial court\u2019s grant of summary judgment to defendant Unitrin Auto and Home Insurance Company. Michael Bain, an insured under David Bain\u2019s policy with Unitrin, brought suit for personal injuries arising out of an automobile accident (\u201cthe underlying action\u201d). After the defendants in the underlying action counterclaimed for property damage, Unitrin retained counsel to defend the counterclaim in accordance with its policy\u2019s duty to defend. Plaintiffs contend that Unitrin is liable for expenses incurred for an expert witness who testified on Michael Bain\u2019s behalf in the underlying action. Because plaintiffs have not presented evidence sufficient to create a genuine issue of material fact as to whether the expert\u2019s services constitute a \u201cdefense cost\u201d for which Unitrin is responsible, we affirm.\nFacts\nOn or about 11 September 2005, Unitrin issued an automobile insurance policy to David Bain covering the period from 11 September 2005 through 11 March 2006. Pursuant to that policy, Unitrin agreed to insure, among other things, a GMC van owned by David Bain and David Bain\u2019s son, Michael Bain.\nThe policy provided with respect to payment of damages and costs:\nWe will pay damages for \u201cbodily injury\u201d or \u201cproperty damage\u201d for which any \u201cinsured\u201d becomes legally responsible because of an auto accident. Damages include prejudgment interest awarded against the \u201cinsured.\u201d We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for \u201cbodily injury\u201d or \u201cproperty damage\u201d not covered under this policy.\n(Emphasis added.)\nOn 20 September 2005, Michael Bain, who was driving the GMC van with the consent of David Bain, collided with Kevin Ray Bellow, who was driving a dump truck owned by his employer, the Koury Corporation. Michael Bain was significantly injured in the accident and filed a personal injury lawsuit against Bellow and Koury on 5 December 2005. In connection with that action, Michael Bain retained an engineering expert, Dr. Rolin F. Barrett, Sr., who began working on the case on 23 November 2005, before suit was filed. Dr. Barrett performed a site inspection of the intersection where the accident occurred and examined the vehicles involved on 12 January 2006.\nOn 6 February 2006, Bellow and Koury filed an answer, including a counterclaim for property damage to the dumptruck. Unitrin received notice of the counterclaim on 2 March 2006, and on 9 March 2006, Unitrin acknowledged that it had a duty to defend the counterclaim under the policy. The same day, Unitrin retained Joseph Brotherton to defend the counterclaim.\nDr. Barrett\u2019s deposition was taken in the underlying action on 9 May 2007. He testified that, in his opinion, based on the ordinary reaction times for drivers, the vehicles involved, the road conditions at the time of the accident, and the likely speed of the vehicles when they collided, Michael Bain could not have avoided the accident. Mr. Brotherton attended that deposition, and asked Dr. Barrett the following questions:\nQ. Dr. Barrett, I didn\u2019t hire you to do anything in this case, did I?\nA. That\u2019s correct. You did not.\nQ. And you\u2019ve described to us in some detail the work you\u2019ve done, the measurements you\u2019ve taken, and that sort of thing and- \u2014 and that is reflected by the documents \u2014 some of the documents contained in Exhibit 1, correct?\nA. Yes.\nQ. All right. Now \u2014 and\u2014and you have formed some opinions and you have told us about all of the opinions that you have formed thus far?\nA. Correct.\nQ. Without you doing any further work, if \u2014 if you were asked the question that were to put the facts that you\u2019re aware of and the knowledge that you have to looking at it from a little different angle, you could form other opinions without doing any further work that you have not formed as of today?\nA. That\u2019s certainly possible.\nMR. BROTHERTON: Okay. Thank you.\nNo transcript of the trial proceedings in the underlying action was filed with this Court. It is undisputed by the parties, however, that Michael Bain\u2019s privately-retained counsel, Amiel Rossabi, tried the majority of the case. Mr. Brotherton did not participate in the jury selection, opening statements, or in examining or cross-examining any witnesses. Mr. Brotherton did, however, give a closing argument. The record on appeal contains no transcript or detailed description of that closing argument. Michael Bain submitted an affidavit, stating that, while he did not recall everything that Mr. Brotherton argued, he did remember that Mr. Brotherton \u201cargued, among other things, that Dr. Barrett\u2019s opinions should be adopted and he did not in any way disavow Dr. Barrett\u2019s testimony.\u201d\nOn 3 August 2007, the jury returned a verdict finding that Michael Bain was not injured by the negligence of Bellow, and that Bellow and Koury were not injured by the negligence of Michael Bain. Dr. Barrett\u2019s invoices for providing expert services in the case totaled $20,966.28. Unitrin has refused to pay any portion of these expenses.\nPlaintiffs filed this action on 7 November 2008 against Unitrin and Insurance Associates of the Triad, Inc., seeking recovery of the expenses associated with Dr. Barrett. Plaintiffs voluntarily dismissed the claim against Insurance Associates on 22 June 2009. On 14 September 2009, the trial court granted summary judgment to Unitrin. Plaintiffs timely appealed to this Court.\nDiscussion\nThe parties agree that the insurance policy in this case obligated Unitrin to defend Michael Bain against the counterclaim asserted by Koury and Bellow in the underlying action and to pay for costs incurred by Unitrin in that defense. The question presented by this action is what constitutes a defense cost for which an insurer is liable under its duty to defend.\nUsually, this issue arises when an insured has been sued and then also asserts a counterclaim. For example, in Duke University v. St. Paul Mercury Insurance Co., 95 N.C. App. 663, 665, 384 S.E.2d 36, 37-38 (1989), Duke University sued its general liability insurer, St. Paul, to recover attorneys\u2019 fees Duke incurred as a defendant in another lawsuit in which Duke had asserted counterclaims. The trial court concluded that Duke could only recover the portion of the fees incurred that were reasonable and necessary for defending matters covered by the St. Paul policy. Id. at 668, 384 S.E.2d at 39. Duke was not entitled to recover fees incurred in the prosecution of its counterclaims. Id.\nOn appeal, this Court affirmed, explaining that \u201c \u2018[a]n insurer, being obligated only to defend claims brought \u201cagainst\u201d the insured, is not required to bear the cost of prosecuting a counterclaim on behalf of the insured.\u2019 \u201d Id. at 680, 384 S.E.2d at 46 (quoting A. Windt, Insurance Claims and Disputes \u00a7 4.39 (1982)). The Court adopted the following commentary as \u201cthe correct rule\u201d:\n\u201cAn insurer, being obligated only to defend claims brought \u2018against\u2019 the insured, is not required to bear the cost of prosecuting a counterclaim on behalf of the insured. Because of the compulsory counterclaim rule, however, the insurer should not be allowed to direct the counsel that it hires on behalf of the insured to ignore the existence of counterclaims. The assumption of the insured\u2019s defense necessarily entails an obligation not to conduct the defense in a manner that will prejudice the insured\u2019s rights. Failure to advise the insured of the existence of a counterclaim that, if not asserted, will be lost should constitute a breach of that obligation.\nAs a practical matter, therefore, when hiring defense counsel, the insurer should advise counsel that it will not bear the costs of prosecuting a counterclaim, but it should not attempt to limit the attorney in connection either with investigating and evaluating possible counterclaims or with giving the insured advice with respect to such claims. If it does, it should be deemed to have breached its duty to defend and, assuming the insured had a meritorious compulsory counterclaim that was lost as a result of the insurer\u2019s action, the insurer should be liable for the value of the barred claim.\u201d\nId. at 679-80, 384 S.E.2d at 46 (emphasis added) (quoting A. Windt, supra \u00a7 4.39).\nHere, there can be no question that Unitrin was not liable for the costs of prosecuting Michael Bain\u2019s claims against Koury and Bellow. Further, Unitrin could not interfere with Michael Bain\u2019s privately-retained counsel\u2019s investigation and prosecution of those affirmative claims. Unitrin could not, therefore, limit Michael Bain\u2019s decision to incur expenses, including expert witness fees, that he and his privately-retained counsel deemed reasonable and necessary for pursuing his claims for relief.\nThe question remains, however, whether plaintiffs have presented any basis for considering the expert fees \u201cdefense costs.\u201d Unitrin\u2019s policy provided: \u201c[W]e will pay all defense costs we incur.\u201d In construing this same language our Supreme Court held that \u201c \u2018[d]efense costs\u2019 refer to costs associated with the process of defending a claim such as attorney fees, deposition expenses, and court costs including such items as subpoena and witness fees.\u201d Sproles v. Greene, 329 N.C. 603, 611, 407 S.E.2d 497, 502 (1991). The issue is, therefore, whether Dr. Barrett\u2019s expenses were a cost associated with the process of defending the property damage counterclaim.\nIn support of its motion for summary judgment, Unitrin points to the fact that Dr. Barrett was hired prior to the filing of the underlying action by counsel whom Michael Bain had privately retained to represent him in connection with his personal injury claims. Mr. Brotherton, the attorney Unitrin hired to defend Michael Bain in connection with the property damage counterclaim, stated in his affidavit: \u201c[A]t no time during my representation of David Michael Bain in the defense of the counterclaim was I consulted about hiring Dr. Rolin Barrett, Sr. as an expert witness to defend the counterclaim pending against David Michael Bain.\u201d\nWith respect to the need for an expert witness to defend the property damage counterclaim, Mr. Brotherton stated: \u201c[I]n my representation of David Michael Bain in the defense of the counterclaim pending against him, I would not have hired an expert to help defend against the counterclaim.\u201d He explained that it was his opinion that he could have successfully defended the counterclaim without Dr. Barrett\u2019s testimony.\nAccording to Mr. Brotherton, he never set up a meeting to discuss the case with Dr. Barrett, and the first time he met with him was at his deposition. Mr. Brotherton attended the deposition, but only briefly questioned Dr. Barrett. He asked, \u201cDr. Barrett, I didn\u2019t hire you to do anything in this case, did I?\u201d Dr. Barrett responded, \u201cThat\u2019s correct. You did not.\u201d According to Mr. Brotherton, at trial, he did not elicit \u201cany testimony from Dr. Rolin Barrett, Sr. with respect to his findings in this matter.\u201d\nIn arguing that Dr. Barrett\u2019s expenses were a defense cost incurred by Unitrin, plaintiffs did not submit any evidence that disputed Mr. Brotherton\u2019s affidavit. Specifically, they do not dispute that Dr. Barrett was retained prior to the existence of the counterclaim for the purpose of serving as an expert witness in support of Michael Bain\u2019s personal injury claims and that Mr. Brotherton was not consulted regarding whether Dr. Barrett should be used in conjunction with the defense of Koury\u2019s property damage claim. They also have presented no evidence that expert testimony was reasonably necessary to defend the counterclaim.\nInstead, plaintiffs first argue that Unitrin never explicitly stated that it believed Dr. Barrett\u2019s assistance was unnecessary for the counterclaim. Mr. Brotherton\u2019s question at Dr. Barrett\u2019s deposition did precisely that, however.\nPlaintiffs also argue that because Mr. Brotherton allowed the privately-retained counsel to control the action and took no active steps to control the defense of the counterclaim, Unitrin intentionally relinquished or waived control of the defense of the counterclaim and cannot now assert that Dr. Barrett\u2019s testimony was unnecessary to the counterclaim. Plaintiffs cite no North Carolina authority or any authority at all involving similar circumstances to support this position. Because this action was originally filed as a personal injury claim against Koury and its employee, and Unitrin\u2019s duty to defend only arose upon the filing of Koury\u2019s counterclaim for property damage to its truck, we see no basis for concluding that Unitrin\u2019s attorney, by allowing the privately-retained attorney to continue to take the lead in the action, waived the right to argue that certain expenses primarily related to the affirmative claims were not necessary to defend the counterclaim.\nThe defense mounted should be in proportion to the claim. If the insurer insisted on taking the lead in the action, then we would have the tail (the smaller value property damage claim) wagging the dog (the personal injury claims) and a risk of the insured claiming that the insurer had violated the \u201crule\u201d set out in Duke University prohibiting the insurer from interfering with the prosecution of the affirmative claims. The consequence, under Duke University, could be a determination that the insurer had breached its duty to defend and, if the retained attorney\u2019s actions caused the insured to lose his affirmative claims, that the insurer was liable for the value of those claims. 95 N.C. App. at 680, 384 S.E.2d at 46. We decline to hold, under the circumstances of this case, that Unitrin\u2019s actions waived any argument that Dr. Barrett\u2019s testimony was not necessary to the defense of the counterclaim.\nPlaintiffs next contend that Dr. Barrett\u2019s testimony was associated with the defense of the counterclaim because (1) Mr. Brotherton attended Dr. Barrett\u2019s deposition, (2) Dr. Barrett\u2019s trial testimony had the effect of supporting the defense of the counterclaim, and (3) Mr. Brotherton \u201cincorporated and adopted the testimony and opinions of Dr. Barrett\u201d in his closing argument. Mere attendance at the deposition cannot be deemed use of Dr. Barrett\u2019s testimony in defense of the counterclaim when plaintiffs have presented no evidence that Mr. Brotherton participated in that deposition other than to establish that he had not retained Dr. Barrett to assist with the defense of the counterclaim.\nWith respect to the trial testimony, plaintiffs appear to acknowledge that the mere fact that evidence supported Mr. Brotherton\u2019s position on the counterclaim was not sufficient to establish that Unitrin incurred the cost without also a showing that Mr. Brotherton used the testimony in the defense. In opposition to Unitrin\u2019s motion for summary judgment, plaintiffs submitted the affidavit of Michael Bain. He acknowledged in that affidavit that Mr. Brotherton did not participate in examining or cross-examining any of the witnesses, which would include Dr. Barrett. In support of their contention that Mr. Brotherton did rely upon Dr. Barrett at trial, plaintiffs point to Michael Bain\u2019s assertion that Mr. Brotherton relied upon the testimony in his closing argument: \u201cWhile I do not recall everything Mr. Brotherton said during his closing argument during the trial, Mr. Brotherton argued, among other things, that Dr. Barrett\u2019s opinions should be adopted and he did not in any way disavow Dr. Barrett\u2019s testimony.\u201d\nOn appeal, plaintiffs properly do not argue that the failure to disavow the testimony gave rise to a duty to pay for it. Such a disavowal would likely constitute a breach of the duty to defend. Plaintiffs do, however, expand upon Mr. Bain\u2019s statement and argue not just that Mr. Brotherton argued \u201cthat Dr. Barrett\u2019s opinions should be adopted\u201d by the jury, but that Mr. Brotherton \u201cincorporated and adopted the testimony and opinions of Dr. Barrett.\u201d The sole support for this argument is the single statement included in Mr. Bain\u2019s affidavit.\nWe cannot tell from Mr. Bain\u2019s affidavit what Mr. Brotherton actually said about Dr. Barrett or his opinions. At best, the affidavit indicates that Mr. Brotherton argued to the jurors that they should find Dr. Barrett\u2019s testimony credible. The affidavit does not necessarily go as far as plaintiffs\u2019 brief. The record, however, contains nothing more specific. Plaintiffs did not submit a transcript of Mr. Brotherton\u2019s closing argument; there is no deposition or other discovery asking Mr. Brotherton to summarize or describe his closing argument. While the record contains the transcript of Dr. Barrett\u2019s deposition in the underlying action, plaintiffs have not provided us with his trial testimony or other evidence of what he said at trial, so we cannot know precisely what opinions Mr. Brotherton urged the jury to adopt. Without being able to read Dr. Barrett\u2019s trial testimony and Mr. Brotherton\u2019s closing arguments, we have no way of determining to what extent Unitrin relied upon or used Dr. Barrett\u2019s services in the defense of the counterclaim and, therefore, cannot determine whether those services should count as a defense cost for which Unitrin is responsible.\nIn sum, plaintiffs seek to hold Unitrin liable for expert witness fees for an expert plaintiffs retained to support Michael Bain\u2019s claims for personal injury. The undisputed evidence is that the expert witness was hired prior to the existence of the counterclaim giving rise to Unitrin\u2019s duty to defend; the counterclaim was only for property damage to a truck; Unitrin\u2019s retained counsel was never consulted about using the expert witness; Unitrin\u2019s retained counsel did not believe it was necessary to have ah expert witness to defend the property damage claim; Unitrin\u2019s retained counsel believed that he could prevail on the property damage claim in the absence of expert testimony; Unitrin\u2019s retained counsel did not participate in the deposition of the expert witness other than to establish that counsel had not hired the witness to assist on the counterclaim; and Unitrin\u2019s retained counsel did not question the expert witness at trial.\nThe sole evidence offered by plaintiffs in support of their claim that the expert witness expenses were associated with the defense of the claim for property damage to the truck is that Unitrin\u2019s retained counsel made some unspecified statement that the jury should adopt the expert witness\u2019 opinions. We hold that the reference in Mr. Bain\u2019s affidavit, standing alone, is insufficient evidence that Mr. Brotherton used Dr. Barrett\u2019s testimony in a manner that effectively made it a defense cost incurred by Unitrin.\nAlternatively, plaintiffs contend that Unitrin is equitably estopped from claiming that Dr. Barrett\u2019s services are not a defense cost. \u201cEquitable estoppel arises when one party, by his acts, representations, or silence when he should speak, intentionally, or through culpable negligence, induces a person to believe certain facts exist, and that person reasonably relies on and acts on those beliefs to his detriment.\u201d Gore v. Myrtle/Mueller, 362 N.C. 27, 33, 653 S.E.2d 400, 405 (2007).\nIn Duke University, 95 N.C. App. at 672, 384 S.E.2d at 42, this Court held that in the absence of evidence that Duke University (the insured) had relied on conduct by its insurer indicating it would pay for some, if not all, of Duke\u2019s legal defense, the insurer was not equitably estopped from pleading the statute of limitations. The Court explained that \u201c \u2018[i]n order to warrant the application of the doctrine of estoppel, it must be shown that the conduct of the party against whom waiver of the . . . limitation is claimed is such as to cause the adverse party to change his position by lulling him into false security, and causing him to delay or waive assertion of his rights to his damage.\u2019 \u201d Id. at 672-73, 384 S.E.2d at 42 (quoting 18A Rhodes, Couch on Insurance 2d \u00a7 75:183, at 177 (1983)).\nIn this case, plaintiffs have failed to demonstrate that they relied upon any statement or conduct of Unitrin or Mr. Brotherton. Plaintiffs hired Dr. Barrett in connection with Michael Bain\u2019s lawsuit against Koury and Bellow well before the filing of the counterclaim and before Unitrin had any duty to defend. Indeed, Dr. Barrett had completed his actual investigation before the counterclaim was filed and Unitrin became involved in the case. Plaintiffs have pointed to no evidence that they were lulled by Unitrin into a false sense of security in connection with the expenses being incurred with respect to Dr. Barrett. They have not shown that they would have acted any differently with respect to Dr. Barrett if Unitrin or Mr. Brotherton had expressly stated that Unitrin would not reimburse plaintiffs for expert witness fees incurred.\nMoreover, at Dr. Barrett\u2019s deposition, Mr. Brotherton confirmed on the record that he had not retained Dr. Barrett for any purpose. Any reliance after that date would not have been reasonable. We, therefore, hold that plaintiffs have not presented sufficient evidence of the elements of equitable estoppel to survive a motion for summary judgment.\nFinally, plaintiffs argue that Unitrin was unjustly enriched by receiving the benefit of Dr. Barrett\u2019s services without having to pay for them. It is well settled, however, that a claim for unjust enrichment is \u201ca claim in quasi contract or a contract implied in law\u201d and, therefore, \u201c[i]f there is a contract between the parties the contract governs the claim and the law will not imply a contract.\u201d Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988). See also Atl. & E. Carolina Ry. Co. v. Wheatly Oil Co., 163 N.C. App. 748, 753, 594 S.E.2d 425, 429 (\u201cThe doctrine of unjust enrichment is based on \u2018quasi-contract\u2019 or contract \u2018implied in law\u2019 and thus will not apply here where a contract exists between two parties.\u201d), disc. review denied, 358 N.C. 542, 599 S.E.2d 38 (2004); Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 165, 510 S.E.2d 690, 694 (reversing trial court\u2019s decision to allow unjust enrichment claim on grounds that two contracts \u201cgovern[ed] the relationship between the parties with regard to payment and services rendered\u201d and, therefore, \u201can action for breach of contract, rather than unjust enrichment, is the proper cause of action\u201d), disc. review denied, 350 N.C. 379, 536 S.E.2d 70 (1999).\nHere, the parties\u2019 relationship, including Unitrin\u2019s liability for any costs of the action under its duty to defend, was governed by the Unitrin insurance policy. Since a contract exists between the parties governing the claim, no claim for unjust enrichment can arise. Accordingly, the trial court properly granted summary judgment as to this claim as well.\nAffirmed.\nJudges ROBERT C. HUNTER and STEPHENS concur.\n. Plaintiffs cite an unpublished opinion from the United States District Court for the Western District of Texas, Landmark Am. Ins. Co. v. Ray, 2006 U.S. Dist. LEXIS 95517, 2006 WL 4092436 (W.D. Tex. Dec. 21, 2006). Ray, however, involved the more traditional context of the insured being sued and then asserting counterclaims. The lawsuit itself triggered the duty to defend, but the carrier not only did not provide counsel for four months, but then the carrier\u2019s counsel did not actively participate in the action, allowing privately-retained counsel to take responsibility for the case. The court found that the carrier had not provided the insured with any substantive defense. Id., *26, 2006 WL 4092436, *7. The privately-retained counsel ultimately spent 49% of his time on matters related to both the defense and the counterclaim, 47% of his time solely on counterclaim-related tasks, and 4% of his time on solely defense-related tasks. Id., *16, 2006 WL 4092436, *5. The district court ordered the carrier to reimburse the insured for those fees and expenses that the court deemed defense-related or necessary to both the defense and the counterclaims. Id., *34-*35, 2006 WL 4092436, *10. Here, in contrast, the lawsuit was initiated by the insured; the expenses were incurred for the affirmative claims, which predominated over the property damage counterclaim; there was no contention during the underlying action that Unitrin was breaching its duty to defend the much more limited property damage counterclaim; and plaintiffs have made no showing that the expert services were a necessary part of defending the counterclaim.\n. The Bain affidavit also states: \u201cMr. Brotherton talked with Dr. Rolin Barrett prior to and during the trial of this matter about his opinions in the case.\u201d Since Mr. Bain does not indicate how he obtained personal knowledge regarding these conversations between Mr. Brotherton and Dr. Barrett, this portion of the affidavit is inadmissible. See N.C.R. Civ. P. 56(e) (\u201cSupporting and opposing affidavits shall be made on personal knowledge, . . . and shall show affirmatively that the affiant is competent to testify to the matters stated therein.\u201d).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Forman Rossabi Black, RA., by Amiel J. Rossabi and Michael C. Taliercio, for plaintiffs-appellants.", "McAngus Goudelock & Courie, by John T. Jeffries and James D. McAlister, for defendant-appellee." ], "corrections": "", "head_matter": "DAVID MICHAEL BAIN and DAVID H. BAIN, Plaintiffs v. UNITRIN AUTO AND HOME INSURANCE COMPANY, Defendant\nNo. COA09-1524\n(Filed 15 March 2011)\n1. Insurance\u2014 duty to defend \u2014 defense costs\nThe trial court did not err in granting summary judgment in favor of defendant insurance company on plaintiffs\u2019 claim for reimbursement for expert witness fees where plaintiffs failed to offer any evidence that the expert fees were defense costs.\n2. Insurance\u2014 duty to defend \u2014 equitable estoppel \u2014 no evidence of reliance\nDefendant insurance company was not equitably estopped from claiming that the services of an expert witness who was hired by plaintiffs in conjunction with their negligence claim were not defense costs. Plaintiffs failed to demonstrate that they relied upon any statement or conduct of defendant or its attorney.\n3. Insurance\u2014 duty to defend \u2014 defense costs \u2014 unjust enrichment \u2014 contract\nPlaintiffs\u2019 claim that defendant was unjustly enriched by receiving the benefit of plaintiffs\u2019 expert witness\u2019s services without having to pay for them was overruled. The doctrine of unjust enrichment did not apply where, as here, a contract between the parties existed.\nAppeal by plaintiffs from order entered 14 September 2009 by Judge Edgar B. Gregory in Guilford County Superior Court. Heard in the Court of Appeals 28 April 2010.\nForman Rossabi Black, RA., by Amiel J. Rossabi and Michael C. Taliercio, for plaintiffs-appellants.\nMcAngus Goudelock & Courie, by John T. Jeffries and James D. McAlister, for defendant-appellee." }, "file_name": "0398-01", "first_page_order": 406, "last_page_order": 417 }