{ "id": 8550312, "name": "HYDE INSURANCE AGENCY, INC. v. DIXIE LEASING CORPORATION", "name_abbreviation": "Hyde Insurance Agency, Inc. v. Dixie Leasing Corp.", "decision_date": "1976-11-17", "docket_number": "No. 7628SC439", "first_page": "490", "last_page": "494", "citations": [ { "type": "official", "cite": "31 N.C. App. 490" } ], "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": "215 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "26 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550092 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc-app/26/0138-01" ] }, { "cite": "188 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "281 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574517 ], "year": 1972, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0191-01" ] }, { "cite": "193 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554606 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0740-01" ] }, { "cite": "156 S.E. 492", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "200 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618782 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/200/0210-01" ] } ], "analysis": { "cardinality": 447, "char_count": 10133, "ocr_confidence": 0.678, "pagerank": { "raw": 9.525418434641831e-08, "percentile": 0.5244942851880554 }, "sha256": "10b12daedf66d119ecc3bfc0c7f3a069c00c7079035a75b3fe48c48f613f1f89", "simhash": "1:d4221ffb02471e45", "word_count": 1631 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Arnold concur." ], "parties": [ "HYDE INSURANCE AGENCY, INC. v. DIXIE LEASING CORPORATION" ], "opinions": [ { "text": "HEDRICK, Judge.\nDefendant first contends the trial court erred in declaring that the only triable issue was whether there had been a modification of the contract between the parties, and that the burden was on the defendant to establish the modification. Plaintiff alleged in its complaint that defendant owed it $7,851 in premiums upon a contract to provide insurance coverage. The parties stipulated that plaintiff provided automobile liability, workmen\u2019s compensation, and general liability insurance coverage beginning 7 September 1973 at an annual premium of $46,035. The parties also stipulated that the amount of premium due when calculated on a short-term basis as required by North Carolina insurance regulations was $7,851. Defendant asserted in its answer, however, that it was not liable for the greater short-term premium because the original contract was modified by an agreement between the parties. The pleadings and stipulations clearly establish that the only triable issue was the alleged modification of the contract. Obviously defendant has both the burden of going forward with the evidence and the ultimate burden of proof on this issue. Russell v. Hardwood Co., 200 N.C. 210, 156 S.E. 492 (1931) ; Tile and Marble Co. v. Construction Co., 16 N.C. App. 740, 193 S.E. 2d 338 (1972).\nDefendant next contends the court erred in directing a verdict for the plaintiff on the issue of whether there had been a modification of the contract to provide for daily proration of the annual premium upon cancellation. The evidence pertinent to the resolution of this issue, except where quoted, is summarized as follows:\nIn August 1973 defendant, a truck leasing company, entered into negotiations with the plaintiff for the purchase of automobile, workmen\u2019s compensation, and general liability insurance. Wallace Hyde, plaintiff\u2019s president, and Bill McElroy handled the negotiations for plaintiff. Pursuant to the negotiations plaintiff provided defendant with insurance coverage through Travelers Insurance Co. beginning 7 September 1973 at an annual premium of $46,035. Subsequently, on or about 9 September 1973, defendant received a premium quotation of $26,000 from Allstate Insurance Co. for identically the same coverage provided by plaintiff. Defendant\u2019s president, Cecil C. Bridges, informed McElroy of this fact and indicated his intention to cancel his policy with the plaintiff. McElroy asked Bridges for an opportunity to meet Allstate\u2019s premium. Bridges testified, \u201cI did not cancel the Travel\u00e9rs coverage with him at that time because I was giving him an opportunity to meet the quote.\u201d As to what the coverage would cost in the interim, Bridges testified, \u201cHe [McElroy] said it would be a small amount of money on a 'prorated basis. In fact, I questioned him specifically about a price, and he wouldn\u2019t quote a price in dollars. He just said it would be a pro rata basis.\u201d (Emphasis added.) On cross examination Bridges testified that McElroy \u201cdidn\u2019t promise to cut the charges.\u201d Defendant cancelled the insurance with plaintiff and accepted Allstate\u2019s proposal on 27 September 1973, the first day Allstate would enter into a binding agreement with defendant to provide the coverage. Bridges assumed that by \u201cprorated basis\u201d McElroy meant \u201cdaily prorated basis,\u201d and did not know there was a \u201cshort rate\u201d basis of proration until the policies had already been cancelled.\nDefendant argues that when considered in the light most favorable to it, the foregoing evidence is sufficient to support a jury finding that the parties entered into an agreement to modify the insurance contract. Plaintiff, on the other hand, argues that no agreement was made because there was no meeting of the minds, and if an agreement was made, it is unenforceable for lack of consideration. Plaintiff\u2019s arguments are without merit.\nPlaintiff argues that there was no meeting of the minds because its agent meant \u201cshort rate\u201d basis of proration when he used the word \u201cpro rata\u201d and defendant\u2019s agent interpreted it to mean \u201cdaily proration.\u201d Restatement of Contracts \u00a7 238 (b) (1932) provides:\n\u201c [W] here a party manifests his intention ambiguously, knowing or having reason to know that the manifestation may reasonably bear more than one meaning, and the other party believes it to bear one of those meanings, having no reason to know it may bear another, that meaning is given to it .... \u201d\nSee also 3 Corbin on Contracts \u00a7 537 (1960). We hold that there is sufficient evidence to support a finding by the jury that McElroy knew when he used the words \u201cpro rata,\u201d it could mean that the premium would be figured either on the short-rate basis of proration or on the daily basis of proration, and that defendant interpreted it to mean daily basis of proration, having no reason to know that it might mean short-rate basis of proration.\n\u201cThere is consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not.\u201d Investment Properties v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972) (citations omitted).\nDefendant had the right to cancel the insurance with plaintiff at any time. We hold that its forebearance to do so upon plaintiff\u2019s request that it be given an opportunity to re-estimate its premium is sufficient consideration to support a binding agreement.\nFor the reasons stated, the judgment directing a verdict for plaintiff is reversed, and the cause is remanded to the superior court for a trial on the single issue of whether the parties entered into a binding agreement to modify the contract with respect to the insurance premiums.\nReversed and remanded.\nJudges Morris and Arnold concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes, Hyde & Davis by Albert L. Sneed, Jr., for plaintiff appellee.", "McGuire, Wood, Erwin & Crow by Charles R. Worley for defendant appellant." ], "corrections": "", "head_matter": "HYDE INSURANCE AGENCY, INC. v. DIXIE LEASING CORPORATION\nNo. 7628SC439\n(Filed 17 November 1976)\n1. Insurance \u00a7 8\u2014 early cancellation of policy \u2014 method of prorating annual premium \u2014 modification of contract \u2014 burden of proof\nIn an action to recover premiums due under a contract to provide defendant with certain insurance coverage for one year after defendant cancelled the insurance before the expiration of a year, the pleadings and stipulations established that the only triable issue was whether the parties had modified the contract to provide for proration of the annual premium on a daily basis, rather than the higher \u201cshort rate\u201d proration basis prescribed by N. C. insurance regulations, in the event of early cancellation, and defendant had the burden of establishing such modification.\n2. Insurance \u00a7 8\u2014 early cancellation of policy \u2014 method of prorating annual premium \u2014 modification of policy \u2014 sufficiency of evidence\nEvidence that plaintiff insurer\u2019s agent told defendant that the interim cost of insurance would be on a \u201cpro rata basis\u201d was sufficient to support submission of an issue as to whether the parties modified the insurance contract to provide for proration of the annual premium on a daily basis, rather than the higher \u201cshort rate\u201d basis prescribed by N. C. insurance regulations, in the event of early cancellation, since the jury could find that plaintiff\u2019s agent knew when he used the word \u201cpro rata\u201d that it could mean the premium would be figured either on the short-rate basis or on the daily basis of proration, and that defendant, having no reason to know that it might mean short-rate basis of proration, interpreted it to mean daily basis of pro-ration.\n3. Insurance \u00a7 8\u2014 early cancellation of policy \u2014 method of prorating annual premium \u2014 modification of policy \u2014 consideration\nDefendant\u2019s agreement to delay cancellation of insurance to give plaintiff agency an opportunity to re-estimate its premium for such coverage constituted sufficient consideration for an agreement that, upon early cancellation of the policy, the annual premium would be prorated on a daily basis rather than on the higher \u201cshort-rate\u201d basis prescribed by N. C. insurance regulations.\nAppeal by defendant from Martin, Judge (Harry C.). Judgment entered 11 Febrnuary 1976 in Superior Court, BUNCOMBE County. Heard in Court of Appeals 12 October 1976.\nThis is a civil action wherein the plaintiff, Hyde Insurance Agency, Inc., seeks to recover from defendant, Dixie Leasing Corp., insurance premiums allegedly due on a contract to provide defendant with certain insurance coverage for one year, upon cancellation by defendant before the expiration of one year.\nThis case was appealed to this Court and heard on 8 May 1975, and our opinion is reported in Insurance Agency v. Leasing Corp., 26 N.C. App. 138,' 215 S.E. 2d 162 (1975). On that first appeal the defendant asserted that it was not liable to plaintiff for the higher short-term premium rate prescribed by North Carolina insurance regulations in the event of cancellation during the first year, because the parties modified the contract to provide for proration of the annual premium on a daily basis in the event of early cancellation. The trial court granted summary judgment for plaintiff upon the theory that such a modification was unenforceable as against public policy. Summary judgment for plaintiff was reversed by this Court, and the cause was remanded to the superior court for trial on the single issue of whether the parties had entered into an agreement to modify the original contract with respect to the payment of premiums. For a more detailed analysis of all the facts and circumstances involved in this case and this appeal see Chief Judge Brock\u2019s opinion in Insurance Agency v. Leasing Corp., supra.\nUpon remand, the trial court concluded that the only issue for trial was whether the parties entered into a binding agreement to modify the original contract. The court held that the burden of going forward with the evidence in proof of this issue was on the defendant, and at the close of its evidence directed a verdict in favor of plaintiff. Defendant appealed.\nVan Winkle, Buck, Wall, Starnes, Hyde & Davis by Albert L. Sneed, Jr., for plaintiff appellee.\nMcGuire, Wood, Erwin & Crow by Charles R. Worley for defendant appellant." }, "file_name": "0490-01", "first_page_order": 518, "last_page_order": 522 }