{ "id": 8553275, "name": "HENRY J. KLEIN, Administrator for NATALIE LISIEWICZ KLEIN, Substitute Plaintiff v. AVEMCO INSURANCE COMPANY", "name_abbreviation": "Klein v. Avemco Insurance", "decision_date": "1975-07-02", "docket_number": "No. 7510DC154", "first_page": "452", "last_page": "456", "citations": [ { "type": "official", "cite": "26 N.C. App. 452" } ], "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": "353 F. 2d 687", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 848495 ], "year": 1965, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/f2d/353/0687-01" ] }, { "cite": "212 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554652 ], "year": 1975, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0725-01" ] }, { "cite": "13 S.E. 236", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1891, "opinion_index": 0 }, { "cite": "108 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651116 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/nc/108/0472-01" ] }, { "cite": "43 S.E. 837", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "opinion_index": 0 }, { "cite": "132 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658953 ], "year": 1903, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/132/0283-01" ] }, { "cite": "84 S.E. 817", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "168 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660960 ], "year": 1915, "pin_cites": [ { "page": "499-500" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0499-01" ] } ], "analysis": { "cardinality": 494, "char_count": 9983, "ocr_confidence": 0.576, "pagerank": { "raw": 2.2855468742716727e-07, "percentile": 0.785664144898023 }, "sha256": "82c08dcb4499e6d136286d140a1364376a0185659860dab21eefb3bd981851f6", "simhash": "1:a6a360e9a4b0bbc1", "word_count": 1684 }, "last_updated": "2023-07-14T16:59:13.418266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Hedrick concur." ], "parties": [ "HENRY J. KLEIN, Administrator for NATALIE LISIEWICZ KLEIN, Substitute Plaintiff v. AVEMCO INSURANCE COMPANY" ], "opinions": [ { "text": "MORRIS, Judge.\nIt is first contended that since plaintiff paid seven of the ten premium installments, the policy should be considered as remaining in effect for seven-tenths of the year, or 255 days, which would mean the policy continued in force until 28 September 1973, well past 28 July 1973, the date when the airplane was damaged. Plaintiff urges that even without considering the last payment, the policy should be considered as having remained in force for six-tenths of the year, or 219 days, which would mean the policy continued in effect until 23 August 1973. We disagree.\n\u2018\u2018It is elemental law that the payment of the premium is requisite to keep the policy of insurance in force. If the premium is not paid in the manner prescribed in the policy, the policy is forfeited. Partial payment, even when accepted as a partial payment, will not keep the policy alive even for such fractional part of the year as the part payment bears to the whole payment. (Citation omitted.)\u201d (Emphasis supplied.) Clifton v. Insurance Co., 168 N.C. 499, 499-500, 84 S.E. 817 (1915).\nPlaintiff next argues that by the acceptance of the last two payments and its past conduct as to late payments, defendant waived its right to insist on immediate payment of the premium installments and to require a forfeiture of the policy for delay in payment. We find no merit in this contention.\nWith respect to the last two payments actually received by the defendant, we note that the payment sent by plaintiff on 10 July 1973 was for the premium payment due in June. Defendant had earned the full amount of that payment. Similarly, defendant had earned a portion of the payment sent by plaintiff on 27 July 1973, since, under the terms of the cancellation notice, coverage was in effect until 22 July 1973. Plaintiff was entitled to and did receive a refund amount of $35.10, which represented unearned premiums subsequent to 22 July 1973.\nTurning to the question of whether defendant\u2019s past conduct as to late payments amounted to a waiver, we note that paragraph 20 of the policy, which is entitled \u201cCancellation for Non-payment of Installment Premium \u2014 All Coverages,\u201d in pertinent part, provides as follows:\n\u201cUpon the failure of the named insured to pay any installment of the premium, the insurance shall cease and terminate, provided at least ten (10) days notice is mailed by the company to the named insured at the address shown in this policy stating when thereafter such cancellation shall become effective.\u201d\nAll of the evidence in the case at bar shows that the defendant sent the plaintiff notice of cancellation of the policy in accordance with the above terms each time plaintiff was delinquent in the payment of premiums. In each instance the policy was reinstated only after the receipt of the necessary premiums. Defendant was in no way obliged to reinstate the policy at any time after plaintiff\u2019s default in the payment of premiums, and, in our opinion, plaintiff may not now complain when defendant has elected to cancel the policy for the nonpayment of premiums.\nFurthermore, we conclude that, having the right to cancel the policy when premiums were not paid when due, defendant clearly had the right to state the conditions under which the policy could be kept in force. Here the conditions were payment of the full unpaid balance of $191.50 by cashier\u2019s check or money order before 22 July 1973. Plaintiff did not comply with these conditions and may not now complain.\nOur Supreme Court has held that:\n\u201c Tf after a breach of the conditions of the policy the insurers, with a' knowledge of the facts constituting it, by their conduct lead the insured to believe that they still recognize the validity of the policy and consider him as protected by it, and induce him to incur expense they will be deemed to have waived the forfeiture and will be estopped from setting it up as a defense.\u2019 \u201d Perry v. Ins. Co., 132 N.C. 283, 288, 43 S.E. 837 (1903), citing Grubbs v. Ins. Co., 108 N.C. 472, 13 S.E. 236 (1891), and 23 Am. St. 62.\nHere the notice of cancellation on 22 July 1973 was clear and unambiguous. Defendant in no way induced or led plaintiff to believe the policy would be kept in force after 22 July 1973 in any manner other than payment of the full unpaid balance of premiums.\nPlaintiff\u2019s only remaining contention is that the judgment entered by the trial court is improper because it contains no findings of fact or conclusions of law. As we noted in Wall v. Wall, 24 N.C. App. 725, 729, 212 S.E. 2d 238, 241 (1975),\n. . it is not necessary for the trial judge in passing on motions for summary judgment to make findings of fact. The following from General Teamsters, Chauffeurs & Helpers U. v. Blue Gab Co., 353 F. 2d 687, 689 (7th Cir. 1965), may be instructive:\n\u2018The making of additional specific findings and separate conclusions on a motion for summary judgment is ill advised since it would carry an unwarranted implication that a fact question was presented.\u2019 \u201d\nFor the foregoing reasons the decision of the trial court granting defendant\u2019s motion for summary judgment is hereby affirmed.\nAffirmed.\nChief Judge Brock and Judge Hedrick concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Vaughan S. Winborne for plaintiff appellant.", "Smith, Anderson, Blount & Mitchell, by C. Ernest Simons, Jr., for defendant appellee." ], "corrections": "", "head_matter": "HENRY J. KLEIN, Administrator for NATALIE LISIEWICZ KLEIN, Substitute Plaintiff v. AVEMCO INSURANCE COMPANY\nNo. 7510DC154\n(Filed 2 July 1975)\n1. Insurance \u00a7 147\u2014 airplane insurance \u2014 partial payment of premium due \u2014 effect\nWhere insured failed to make an installment payment on an airplane insurance policy premium when due and the insurer sent insured a notice that the policy would be cancelled if the entire unpaid balance were not paid by a certain time, payment by the insured of the amount of a regular installment payment did not keep the policy alive for the fractional part of the year which the payment bears to the whole payment.\n2. Insurance \u00a7 147\u2014 airplane insurance \u2014 waiver of right to cancel \u2014 acceptance of late payments\nDefendant insurer did not waive its right to cancel an airplane insurance policy for failure of insured to pay a premium installment in apt time by its reinstatement of the policy on other occasions when insured made late premium payments.\n3. Insurance \u00a7 147\u2014 airplane insurance \u2014 right to cancel \u2014 condition of keeping policy in effect\nWhere defendant insurer had the right to cancel a policy of airplane insurance for nonpayment of a premium installment when due, and insured failed to make an installment payment when due, the insurer had the right to require the insured to pay the full unpaid balance of the premium in order to keep the policy in effect.\n4. Rules of Civil Procedure \u00a7 56\u2014 summary judgment \u2014 no necessity for findings of fact\nThe trial court need not make findings of fact in passing on a motion for summary judgment.\nAppeal by plaintiff from Barnette, Judge. Judgment entered 13 December 1974 in District Court, Wake County. Heard in the Court of Appeals 17 April 1975.\nPlaintiff filed a complaint on 1 November 1973 alleging that she purchased an airplane insurance policy from the defendant; that the policy was in effect on 28 July 1973, when the airplane crashed and was damaged in an amount exceeding $5,000, and that the defendant refused to compensate plaintiff for the damage to her airplane.\nDefendant answered denying that the policy was\u2019 in effect on 28 July 1973 and asking that plaintiff\u2019s cause of action be dismissed. Subsequently, defendant filed a motion for summary judgment alleging there was no genuine issue as to any material fact, and defendant was entitled to a judgment as a matter of law. In support of the motion defendant submitted the affidavit of William B. Shoemaker, its Supervisor of Accounts Receivable. In this affidavit Shoemaker stated that on 11 July 1973 defendant sent plaintiff a notice stating her policy would be cancelled on 22 July 1973 unless a premium payment of $191.50 was received by that date; that on 16 July 1973 defendant received a payment of $38.30, but that no other payments were received before 22 July 1973 and the policy was then cancelled.\nPlaintiff died while the action was pending, and, on motion, her administrator was substituted as plaintiff.\nIn opposition to defendant\u2019s motion for summary judgment plaintiff filed an affidavit, a deposition and several exhibits, which tended to show that the airplane had been insured with the defendant for several years; that on 16 January 1973 the policy was renewed for a period of one year for a total premium of $383, to be paid in ten monthly installments of $38.30 each, beginning 16 January 1973; that most of the monthly payments were not made on time; that in March and in May of 1973 defendant sent plaintiff cancellation notices threatening to cancel the policy unless the premiums were paid immediately; that these cancellation notices were followed by reinstatement notices when the payments were received; that by June of 1973 plaintiff had paid five monthly installments, and five monthly installments totalling $191.50 remained unpaid; that on 11 July 1973 defendant sent plaintiff a cancellation notice stating that her policy would be cancelled on 22 July 1973 if $191.50, the \u201cfull unpaid balance due\u201d was not paid by that date; and finally that plaintiff already had made her sixth monthly payment of $38.30 on 10 July 1973 and she paid her seventh installment of $38.30 on 27 July 1973.\nThe affidavit of defendant\u2019s employee Shoemaker, showed further that inasmuch as the \u201cfull unpaid balance due\u201d was not paid by 22 July 1973, plaintiff\u2019s policy was cancelled as of that date; that unearned premiums of $150 were credited to the policy, and finally that the unearned premium less the balance of payments due in the amount of $114.90 resulted in a refund of $35.10, which was mailed to plaintiff on 5 September 1973.\nThe trial court granted summary judgment for the defendant and plaintiff appealed.\nVaughan S. Winborne for plaintiff appellant.\nSmith, Anderson, Blount & Mitchell, by C. Ernest Simons, Jr., for defendant appellee." }, "file_name": "0452-01", "first_page_order": 480, "last_page_order": 484 }