{ "id": 8553976, "name": "BRADLEY FREIGHT LINES, INC., A Corporation v. POPE, FLYNN & COMPANY, INC., A Corporation", "name_abbreviation": "Bradley Freight Lines, Inc. v. Pope, Flynn & Co.", "decision_date": "1979-07-17", "docket_number": "No. 7828SC941", "first_page": "285", "last_page": "292", "citations": [ { "type": "official", "cite": "42 N.C. App. 285" } ], "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": "80 S.E. 408", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "164 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656611 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/164/0122-01" ] }, { "cite": "189 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575673 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0582-01" ] }, { "cite": "97 Cal. Rptr. 164", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "19 Cal. App. 3d 803", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4403310 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/cal-app-3d/19/0803-01" ] }, { "cite": "148 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "267 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559432 ], "year": 1966, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0392-01" ] }, { "cite": "109 S.E. 632", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "182 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657164 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/182/0599-01" ] }, { "cite": "185 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "13 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553578 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/13/0375-01" ] }, { "cite": "72 A.L.R. 3d 747", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1972, "opinion_index": 0 }, { "cite": "438 F. 2d 423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2206424 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/438/0423-01" ] }, { "cite": "531 F. 2d 1261", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1074581 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/531/1261-01" ] } ], "analysis": { "cardinality": 703, "char_count": 14769, "ocr_confidence": 0.812, "pagerank": { "raw": 3.564119045939559e-07, "percentile": 0.8859533895605497 }, "sha256": "76142ea93b7a442638b2a881e5493ff24d8484d0c52f3686953d9cade172c76e", "simhash": "1:2a56a5ebad4ea706", "word_count": 2401 }, "last_updated": "2023-07-14T15:00:09.609845+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Clark and Erwin concur." ], "parties": [ "BRADLEY FREIGHT LINES, INC., A Corporation v. POPE, FLYNN & COMPANY, INC., A Corporation" ], "opinions": [ { "text": "CARLTON, Judge.\nDefendant first assigns as error the failure of the trial court to grant defendant\u2019s motions for directed verdict made at the close of the plaintiff\u2019s evidence and at the close of all the evidence.\nProcedurally, defendant contends that the statute of limitations bars plaintiff\u2019s claim, as the voluntary dismissal taken by the plaintiff in the earlier action did not specifically refer to G.S. 1A-1, Rule 41(a) and thus the present claim is not \u201csaved\u201d by that statute. Defendant\u2019s position is that the voluntary dismissal without prejudice must refer to Rule 41(a) in order to gain the rule\u2019s benefit of a one year extension within which to file the same lawsuit.\nRule 41(a)(1) provides as follows:\n(a) Voluntary dismissal; effect thereof. \u2014\n(1) By Plaintiff; by Stipulation. \u2014Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim. If an action commenced with the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. (Emphasis added.)\nNeither our nor the appellant\u2019s research discloses any authority for the defendant\u2019s contention that to gain the benefit of Rule 41(a)\u2019s \u201csaving\u201d provision, there must be a specific reference to Rule 41 in the dismissal. The fact that plaintiff\u2019s notice of dismissal in this case did not refer to the specific rule of its origin would appear to have no legal significance. As Rule 41 is the only procedural rule which addresses voluntary dismissals, no confusion as to the effect of the dismissal could possibly have resulted from this omission. In analogous situations, other courts have emphasized that the content of a notice of dismissal controls, not a wrong label. See 5 Moore\u2019s Federal Practice, \u00b6 41.02[2], p. 41-21; Williams v. Ezell, 531 F. 2d 1261 (5th Cir. 1976); Neifeld v. Steinberg, 438 F. 2d 423 (3d Cir. 1971). We think this reasoning should be extended to encompass situations such as the case at bar where a label omission is the alleged error. The voluntary dismissal without prejudice entitled the plaintiff to reinstate his claim within one year from the date of the notice, that being 7 December 1976. Plaintiff filed his complaint in the present action on 13 July 1977, well within the one-year limitation extension period. The present action is therefore not barred by the statute of limitations and defendant\u2019s argument is without merit.\nThe defendant appellant also contends that the present action is not the \u201csame claim\u201d as the earlier action within the meaning of Rule 41(a)(1), and therefore a directed verdict for defendant would have been proper. Defendant argues that the earlier action was an action for breach of contract and the present action is one which makes no reference to breach of contract, but is solely bottomed on the theory of negligent advice. However, the record discloses that recovery based on negligent advice was advanced as a theory in plaintiff\u2019s complaint in the earlier action. This assignment of error is therefore overruled.\nSubstantively, defendant argues that a cause of action based on negligent advice against an insurance agent has never been recognized in this State and should not now be recognized. While we agree with defendant that no North Carolina case basing recovery expressly on the theory of negligent advice of an insurance agent can be found, we do not agree that plaintiff\u2019s claim falls short of a valid cause of action.\nAs a general rule, an insurance agent who, with a view to compensation, undertakes to procure insurance for another owes the duty to his principal to exercise good faith and reasonable diligence, and any negligence or other breach of duty on his part which operates to defeat the insurance coverage procured or causes the principal to be underinsured will render the agent liable for the resulting loss. Anno: 72 A.L.R. 3d 747; Johnson v. George Tenuta and Co., 13 N.C. App. 375, 185 S.E. 2d 732 (1972); Elam v. Smithdeal Realty Ins. Co., 182 N.C. 599, 109 S.E. 632 (1921). In Wiles v. Mullinax, 267 N.C. 392, 395, 148 S.E. 2d 229, 232 (1966), Justice Sharp, now Chief Justice, writing for our Supreme Court stated: \u201cWhere an insurance broker becomes liable to his customer for failure to provide him with the promised insurance, the latter, at his election, may sue for breach of contract or for negligent default in the performance of a duty imposed by contract.\u201d (Emphasis added.)\nProceeding in tort against the insurer is therefore clearly actionable in North Carolina. In Johnson v. Tenuta and Co., supra, Judge Parker emphasized that insured\u2019s remedies are not limited to breach of contract, but can be based on actionable negligence as well.\nCases from other jurisdictions characterize a cause of action for negligent advice as one for negligent misrepresentation. In Greenfield v. Insurance, Inc., 19 Cal. App. 3d 803, 97 Cal. Rptr. 164 (1971), the defendant insurance brokerage firm was held to have negligently misrepresented to the plaintiff insured the extent of policy coverage. The plaintiff scrap iron dealer specifically requested business interruption insurance covering mechanical breakdown of an automobile shredder from the defendant insurance brokerage firm which had handled the plaintiff\u2019s insurance needs for 10 years. The brokerage firm informed the plaintiff, after contacting an insurance company, that it had obtained the type of coverage requested. The policy, however, specifically excluded loss caused by mechanical breakdown. The California court found that the defendant had violated its duty to exercise reasonable care in seeking coverage and that the plaintiff had justifiably relied on the firm\u2019s representation of coverage.\nIn the case sub judice, we hold that plaintiff alleged a valid cause of action in negligence against the defendant. Plaintiff\u2019s evidence tended to show the relationshp between the parties and a resulting duty on the part of the defendant. The evidence tended to show a breach of that duty by the defendant in negligently conveying false assurances to the plaintiff concerning the extent of insurance coverage on substituted vehicles that were not specifically endorsed. Plaintiff\u2019s evidence, taken in the light most favorable to the plaintiff and given the benefit of every reasonable inference which can be drawn therefrom, was sufficient to withstand defendant\u2019s motions for directed verdict. See, 11 Strong, N.C. Index 3d, Rules of Civil Procedure, \u00a7 50, p. 326; Younts v. State Farm Insurance Co., 281 N.C. 582, 189 S.E. 2d 137 (1972).\nDefendant next assigns as error the trial court\u2019s admission of a letter into evidence which had not been properly authenticated. The letter, dated 7 April 1971, was a reply from Carolina Casualty in response to a report sent by the plaintiff, wherein Carolina Casualty denied liability to the plaintiff on the insurance policy.\nA letter, received in due course which purports to be in response to a letter previously sent by the receiver, is prima facie genuine and is admissible in evidence without other proof of its authenticity. 2 Stansbury, N.C. Evidence \u00a7 236, p. 216 (Brandis rev. ed. 1973); Echerd v. Viele, 164 N.C. 122, 80 S.E. 408 (1913). This assignment of error is overruled.\nWe have reviewed defendant\u2019s remaining assignments of error and find them to.be without merit.\nIn the trial below, we find\nNo error.\nJudges Clark and Erwin concur.", "type": "majority", "author": "CARLTON, Judge." } ], "attorneys": [ "Morris, Golding, Blue & Phillips, by William C. Morris, Jr., for defendant appellant", "Reynolds, Nesbitt, Crawford & Mayer, by Joseph C. Reynolds and William M. Patton, for plaintiff appellee." ], "corrections": "", "head_matter": "BRADLEY FREIGHT LINES, INC., A Corporation v. POPE, FLYNN & COMPANY, INC., A Corporation\nNo. 7828SC941\n(Filed 17 July 1979)\n1. Rules of Civil Procedure \u00a7 41\u2014 voluntary dismissal \u2014reference to rule unnecessary\nThere was no merit to defendant\u2019s contention that to gain the benefit of the \u201csaving\u201d provision of G.S. 1A-1, Rule 41(a), there must be a specific reference to Rule 41 in plaintiffs voluntary dismissal.\n2. Insurance \u00a7 2.2\u2014 negligent advice of agent \u2014 cause of action proper \u2014 sufficiency of evidence\nPlaintiff could properly bring a cause of action based on negligent advice against an insurance agent, and plaintiffs evidence was sufficient to withstand defendant\u2019s motions for directed verdict where it tended to show a breach of duty by defendant in negligently conveying false assurances to the plaintiff concerning the extent of insurance coverage on substituted vehicles that were not specifically endorsed.\n3. Evidence \u00a7 29.1\u2014 letter \u2014authenticity\nA letter received in due course which purports to be in response to a letter previously sent by the receiver is prima facie genuine and is admissible in evidence without other proof of its authenticity.\nAPPEAL by defendant from Lewis, Judge. Judgment entered 16 May 1978 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 15 June 1979.\nThis lawsuit is a result of a motor vehicle accident which occurred in the State of Iowa on 9 September 1970. Plaintiff, a Tennessee trucking corporation doing business in North Carolina, one of whose trucks was involved in the accident, was the defendant in an Iowa lawsuit brought as a result of the accident. Plaintiff\u2019s insurer, Carolina Casualty Insurance Co., Inc., refused to defend the plaintiff in the Iowa lawsuit, claiming that its insurance coverage under a policy between the plaintiff and Carolina Casualty Insurance Co. did not extend to substituted vehicles that had not received a special endorsement from the insurance agency, the defendant in this case. The plaintiff\u2019s damaged vehicle in the accident was a substituted vehicle which had not received a special endorsement in accordance with the insurance policy.\nIn the Iowa lawsuit, judgment was rendered against this plaintiff and damages were assessed at $35,232.73. Carolina Casualty refused to pay said judgment. The plaintiff subsequently entered into a compromise settlement of the Iowa judgment, whereby the plaintiffs in the Iowa lawsuit were paid $15,000 in settlement of the case with an assignment of all claims. Carolina Casualty, pursuant to Interstate Commerce Commission requirements, paid to the plaintiff in the Iowa case the sum of $10,000.\nCarolina Casualty then instituted a lawsuit against the plaintiff in the District Court of Buncombe County which resulted in a consent judgment, whereby the plaintiff paid Carolina Casualty $3,000 in settlement of the monies paid by Carolina Casualty to the Iowa plaintiff.\nPlaintiff later instituted an action against Carolina Casualty, American Underwriters, Inc., and Pope, Flynn & Company, the defendant in the present action. In that case, it was adjudged and decreed that the truck involved in the Iowa accident was not covered under the terms of the insurance policy and that Carolina Casualty was not liable. The court allowed a voluntary dismissal without prejudice as to Pope, Flynn & Company and Carolina Casualty on 7 December 1976.\nOn 13 July 1977, plaintiff filed complaint in the present action alleging that the defendant, by and through its president, John S. Flynn, negligently advised the plaintiff that substitution of vehicles not listed on any insurance policy for vehicles covered by an insurance policy which were at the time nonoperative was authorized and that no special endorsement on the policy was required.\nAt the trial, evidence for the plaintiff tended to show that defendant had acted as plaintiff\u2019s insurance agent for several years and that plaintiff depended on the defendant for insurance advice. On 20 August 1970, Mr. Flynn, president of defendant insurance agency, delivered an insurance policy to Mr. J. C. Cope, president of the plaintiff corporation. Mr. Cope had previously inquired of Mr. Flynn as to whether a policy could be purchased by the plaintiff which would eliminate the necessity of reporting to the agency whenever substitutions of owned vehicles not listed in the policy were made. At the time of the delivery of this policy, Mr. Flynn told Mr. Cope \u201cthat we [the plaintiff] didn\u2019t have to report in to him [the defendant] each time we wanted to substitute.\u201d On 9 September 1970 a substituted truck, whose substitution went unreported to the agency, was involved in the Iowa accident. A letter from Carolina Casualty to the plaintiff denying liability was introduced.\nOn 21 September 1972, Mr. Cope discussed the Iowa lawsuit with Mr. Flynn. Mr. Cope asked for a confirmation letter from Mr. Flynn concerning the assurances that had been given as to substituted vehicles. Mr. Flynn provided such a letter as follows:\n\u201cThe question was asked in regards to the operation of a tractor and trailer used for substitute when another trailer is broken down and in the garage for repairs. He informed me that it is perfectly in order to substitute a unit when one of the units properly covered is under repair. There was no restriction attached as to the unit being hired or owned unit. It is our understanding that the Policyholder could substitute and was so advised. Very truly your [sic], Pope, Flynn & Company, Inc., John S. Flynn,\u201d signed, \u201cJohn S. Flynn, President.\u201d Copy to Bill Fairey.\nAt the close of plaintiff\u2019s argument, defendant moved for a directed verdict. The motion was denied, at which time the defendant renewed his motion which was again denied. The defendant presented no evidence.\nThe jury answered three issues submitted to it as follows:\n1. Did the plaintiff, Bradley Freight Lines, Inc. incur loss or losses as a result of the defendant\u2019s negligent advice, as alleged in the Complaint, that a substituted vehicle was covered under the Carolina Casualty Company Policy # 144833?\nAnswer: Yes\n2. Did the plaintiff, Bradley Freight Lines, Inc., by its own negligence contribute to its loss or losses?\nAnswer: No.\n3. What amount, if any, is the plaintiff, Bradley Freight Lines, Inc., entitled to recover of the defendant, Pope, Flynn & Company, Inc.?\nAnswer: $24,868.28.\nDefendant appeals.\nMorris, Golding, Blue & Phillips, by William C. Morris, Jr., for defendant appellant\nReynolds, Nesbitt, Crawford & Mayer, by Joseph C. Reynolds and William M. Patton, for plaintiff appellee." }, "file_name": "0285-01", "first_page_order": 313, "last_page_order": 320 }