{
  "id": 8526698,
  "name": "JAMES W. LATTA v. FARMERS COUNTY MUTUAL FIRE INSURANCE COMPANY",
  "name_abbreviation": "Latta v. Farmers County Mutual Fire Insurance",
  "decision_date": "1984-04-03",
  "docket_number": "No. 8311DC446",
  "first_page": "494",
  "last_page": "498",
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      "cite": "305 N.C. 366",
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  "analysis": {
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  "last_updated": "2023-07-14T17:10:21.361774+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Arnold and Braswell concur."
    ],
    "parties": [
      "JAMES W. LATTA v. FARMERS COUNTY MUTUAL FIRE INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) of the Rules of Civil Procedure, \u201c. . . summary judgment will be granted \u2018if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.\u2019 \u201d Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982) (citations omitted). The burden is upon the moving party to demonstrate that either (1) an essential element of the opposing party\u2019s claim is nonexistent, or (2) the opposing party will be unable to produce sufficient evidence to support an essential element of its claim. Id. \u201cIf the moving party meets this burden, the nonmoving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so.\u201d (Citations omitted.) Id.\nWe first consider the trial court\u2019s ruling granting summary judgment in favor of defendant. It is an established principle of insurance law that an insurer must return premiums where, without fault or fraud by the insured, no risk to the insurer ever attaches under the policy. In such a case, the premiums have been paid upon a consideration which has failed. 15 Appleman, Ins. L. & P. \u00a7 8358 (1944 & 1982 Supp.), 43 Am. Jur. 2d Insurance \u00a7 918 (1982 & 1983 Supp.). If risk attaches at any time but the policy is later cancelled or suspended, courts disagree whether a pro-rata refund of premiums is required. Compare 6 Couch on Insurance 2d, \u00a7 34:9 (1961 & 1983 Supp.), 43 Am. Jur. 2d Insurance \u00a7\u00a7 386, 399 (1982 & 1983 Supp.).\nIn this case, plaintiff asserts that risk never attached under defendant\u2019s policy because plaintiff already had Federal Crop Insurance and because plaintiff never notified defendant of his Federal Crop Insurance. Defendant\u2019s burden in its motion for summary judgment was to demonstrate that no material issue of fact remained concerning whether risk attached. This defendant failed to do. Defendant concedes in its brief that the effect of its \u201cother insurance\u201d clause is to suspend coverage until the insured notifies it of the existence of other insurance. See also N.C. Grange Ins. Co. v. Johnson, 51 N.C. App. 447, 276 S.E. 2d 469, disc. rev. granted, 303 N.C. 315, 281 S.E. 2d 652 (1981), disc. rev. dismissed, 304 N.C. 721, 285 S.E. 2d 812 (1982), holding that the presence of an \u201cother insurance\u201d clause renders that policy void ab initio where the insured has other insurance. Defendant has failed to produce a forecast of evidence tending to show that plaintiff did not possess Federal Crop Insurance when he applied for a policy with defendant, or that defendant was ever notified of plaintiff s Federal Crop Insurance, thereby enabling risk to attach under the contract. Defendant states only that the contract was never cancelled and that it was \u201cready, able and willing\u201d to perform provided that plaintiff complied with the contract provisions. This argument is inapposite, since plaintiff seeks reimbursement on the grounds that risk never attached under the policy.\nDefendant contends that plaintiff is trying unfairly to \u201chave it both ways\u201d by retaining the ability to choose either to (a) pay a premium, incur a loss, give notice of other insurance and collect under the policy or (b) pay a premium, incur no loss, give no notice and obtain a refund. This argument ignores the fact that under defendant\u2019s own interpretation of its \u201cother insurance\u201d clause defendant\u2019s liability does not attach until after it receives notice of an insured\u2019s other insurance. Because plaintiff failed to give defendant notice of his existing Federal Crop Insurance coverage, defendant was never at risk under its policy with plaintiff. For the reasons stated, we hold that the trial judge erred in granting summary judgment in favor of defendant.\nWe turn now to plaintiffs argument that the trial judge erred in denying plaintiffs motion for summary judgment. Once again, we agree with plaintiff. Plaintiffs forecast of evidence showed that risk never attached under the policy, and defendant failed to rebut this evidence. Therefore, no material issue of fact remained for trial. Because we hold that summary judgment should have been granted in favor of plaintiff, we need not reach plaintiffs other assignment of error.\nThe judgments of the trial court are reversed and this cause is remanded to the trial court with instructions for entry of summary judgment for plaintiff.\nReversed and remanded.\nJudges Arnold and Braswell concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Bain & Marshall, by Edgar R. Bain, for plaintiff.",
      "Stewart and Hayes, P.A., by Gerald W. Hayes, Jr. and Joseph L. Tart, for defendant."
    ],
    "corrections": "",
    "head_matter": "JAMES W. LATTA v. FARMERS COUNTY MUTUAL FIRE INSURANCE COMPANY\nNo. 8311DC446\n(Filed 3 April 1984)\nInsurance \u00a7 140.2\u2014 crop insurance \u2014other insurance clause \u2014 summary judgment for defendant insurance company improper\nIn an action in which plaintiff sought to recover premiums paid to defendant in which plaintiff alleged that defendant had been unjustly enriched by retaining premiums paid to provide insurance for plaintiffs tobacco crop when no risk attached under the policy, the trial court erred in granting summary judgment for defendant and should have granted summary judgment for plaintiff. Defendant\u2019s evidence did not contest plaintiffs assertions that risk never attached under defendant\u2019s policy because plaintiff already had Federal Crop Insurance and because plaintiff never notified defendant of his Federal Crop Insurance, and no material issue of fact remained for trial.\nAPPEAL by plaintiff from Lyon, Judge. Judgment entered 29 November 1982 in Harnett County District Court. Heard in the Court of Appeals 8 March 1984.\nPlaintiff seeks to recover premiums paid to defendant, alleging that defendant has been unjustly enriched by retaining $1,584.00 in premiums paid to provide insurance for plaintiffs 1979 tobacco crop when no risk attached under the policy. In his complaint and affidavits, plaintiff asserts that he applied and paid for a policy of hail insurance with defendant. The application contained a statement to the effect that plaintiff had no other insurance on the crops covered in the application and that the application contained the following provision:\nIt is hereby agreed that if other insurance is written on the insured interest in the above described crops this Company will be notified in writing of the amounts of such other insurance, including Federal Crop Insurance Corporation Coverage.\nIt is further agreed that unless or until so notified of such other insurance the coverage under this policy shall be suspended.\nPlaintiff was unaware of the \u201cother insurance\u201d clause in his contract suspending coverage of insureds who have or obtain Federal Crop Insurance coverage until notice of such other coverage is given to the insurer. Plaintiff further asserts that defendant knew plaintiff had Federal Crop Insurance, but failed to notify plaintiff of the effect of the \u201cother insurance\u201d clause.\nDefendant, in its answer and supporting affidavits, asserts that plaintiff entered into the insurance contract voluntarily and was free to reject its terms if he wished. Defendant never can-celled the contract and was at all times \u201cready, able and willing\u201d to perform, provided plaintiff complied with the terms of the agreement.\nFrom the trial court\u2019s ruling, granting defendant\u2019s and denying plaintiffs motion for summary judgment, plaintiff appeals.\nBain & Marshall, by Edgar R. Bain, for plaintiff.\nStewart and Hayes, P.A., by Gerald W. Hayes, Jr. and Joseph L. Tart, for defendant."
  },
  "file_name": "0494-01",
  "first_page_order": 526,
  "last_page_order": 530
}
