{
  "id": 8526821,
  "name": "JOHN PETE FEDORONKO and JERRY FEDORONKO, JR., Co-Executors of the Estate of Elsie Peterson Fedoronko Hardwick v. AMERICAN DEFENDER LIFE INSURANCE COMPANY and FIRST CITIZENS BANK AND TRUST COMPANY",
  "name_abbreviation": "Fedoronko v. American Defender Life Insurance",
  "decision_date": "1984-07-17",
  "docket_number": "No. 835SC1009",
  "first_page": "655",
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  "last_updated": "2023-07-14T19:17:04.613219+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Arnold and Eagles concur."
    ],
    "parties": [
      "JOHN PETE FEDORONKO and JERRY FEDORONKO, JR., Co-Executors of the Estate of Elsie Peterson Fedoronko Hardwick v. AMERICAN DEFENDER LIFE INSURANCE COMPANY and FIRST CITIZENS BANK AND TRUST COMPANY"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant\u2019s Appeal\nDefendant contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict. The parties stipulated to plaintiffs\u2019 prima facie case; the issue thus became defendant\u2019s affirmative defense of suicide.\nDefendant\u2019s motion for judgment notwithstanding the verdict must be judged by the same standard applicable to its motion for directed verdict. Dickinson v. Pake, 284 N.C. 576, 584, 201 S.E. 2d 897, 902-03 (1974). Since defendant had the burden of proving suicide, its motion for directed verdict should have been granted only if the credibility of its evidence was manifest as \u00e1 matter of law, and if the evidence so clearly established the fact of suicide that no reasonable inferences to the contrary could be drawn. North Carolina National Bank v. Burnette, 297 N.C. 524, 536-37, 256 S.E. 2d 388, 395 (1979).\nThe Burnette Court identified three recurrent situations where the credibility of a movant\u2019s evidence is manifest: (1) where the non-movant establishes the proponent\u2019s case by admitting the truth of the basic facts upon which the claim of the proponent rests; (2) where the controlling evidence is documentary and its authenticity is not challenged; and (3) where there are only latent doubts as to the credibility of oral testimony and the opposing party has not impeached or contradicted such testimony. Id. at 537-38, 256 S.E. 2d at 396. None of these situations appears in the case at bar. Plaintiffs did not admit that testator committed suicide, they denied it. The controlling evidence is largely oral testimony and circumstantial, not direct documentary evidence. Finally, the evidence is sufficiently contradictory to support an inference other than suicide. The position of the insured\u2019s body, and the neatly folded blanket on top, were unusual for a suicide. There was no evidence that a pistol found in the room with decedent was the weapon that killed her. The medical examiner believed homicide was a possible cause of death. Although no charges were brought, the sheriff continued to investigate the death as a homicide for over two years. No suicide note was found, and the insured\u2019s children testified that she was in good spirits when they visited a few days before her death.\nThe insured\u2019s husband claimed his Fifth Amendment privilege against self-incrimination in response to questions about whether he killed his wife. His silence constituted some additional evidence counter to defendant\u2019s theory of suicide. While invocation of the Fifth Amendment may not be considered as evidence against the husband, the privilege is personal to him and is not available to defendant.\nThe privilege of the witness is to prevent testimony which might be used against him in a subsequent criminal suit, and not to keep out probative evidence or any inferences to be drawn from the claim of privilege which might be relevant to the issues in the matter before the court. So, while the claim of privilege may not be used against defendant [or a witness] in a subsequent criminal prosecution, an inference that his testimony would have been unfavorable to him is available to his opponent in a civil cause in which defendant [or a witness] pleads the privilege ....\n98 C.J.S. Witnesses \u00a7 455, at 308 (1957) (footnotes omitted).\nOur research has not disclosed any North Carolina cases deciding this question. A similar situation, however, was settled long ago. Where a witness refused to answer a question concerning a prior conviction, and had the right not to answer, the witness\u2019s silence could be brought to the attention of the jury in order to discredit him. State v. Garrett, 44 N.C. (Busb.) 357 (1853). The relevant principle to be derived is that a witness\u2019s silence can provide the basis for an inference by the factfinder, even though it cannot be used as evidence from which to find him guilty.\nThe aforementioned evidence for the plaintiffs tended to contradict defendant\u2019s evidence of suicide. Consequently, the trial court properly denied defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nPlaintiffs\u2019 Appeal\nPlaintiffs contend the judgment should have included both a fifteen percent rate of interest from the date of the insured\u2019s death and attorney fees. They argue that the credit life insurance policies were intended to secure the insured\u2019s debt to First Citizens in the event of her death; that defendant\u2019s refusal to pay resulted in their being subjected to a fifteen percent interest rate and attorney fees in First Citizens\u2019 action on the debt; and that the attorney fees and fifteen percent interest rate were damages within the contemplation of the parties when the insurance contract was made, since defendant should have foreseen that they would result from its breach.\nNorth Carolina long has held that a successful litigant may not recover attorney fees, whether as costs or as an item of damages, unless such a recovery is authorized expressly by statute. Stillwell Enterprises, Inc. v. Interstate Equipment Co., 300 N.C. 286, 289, 266 S.E. 2d 812, 814 (1980). Plaintiffs have cited no statute that would allow them to recover attorney fees, and we know of none. The court thus correctly declined to award attorney fees to plaintiffs.\nPlaintiffs\u2019 contentions regarding the rate of interest and the date from which it accrued are controlled by G.S. 58-205.3(a):\nEach insurer admitted to transact life insurance in this State which, without the written consent of the beneficiary, fails or refuses to pay the death proceeds or death benefits in accordance with the terms of any policy of life or accident insurance issued by it in this State within 30 days after receipt of satisfactory proof of loss because of the death, whether accidental or otherwise, of the insured shall pay interest, at a rate not less than the then current rate of interest on death proceeds left on deposit with the insurer computed from the date of the insured\u2019s death, on any moneys payable and unpaid after the expiration of such 30-day period.\n(Emphasis supplied.) The trial court erroneously awarded the legal rate of interest of eight percent found in G.S. 24-1. The cause thus must be remanded for award of an interest rate \u201cnot less than the then current rate of interest on death proceeds left on deposit with the insurer.\u201d The interest must run from 15 May 1981, the date of the insured\u2019s death.\nThe result is:\nIn defendant\u2019s appeal, affirmed.\nIn plaintiffs\u2019 appeal, affirmed in part, reversed in part, and remanded.\nJudges Arnold and Eagles concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Moore & Biberstein, by R. V Biberstein, Jr., for plaintiffs.",
      "Smith, Moore, Smith, Schell & Hunter, by Ted R. Reynolds and Maria J. Mangano, for defendant American Defender Life Insurance Company."
    ],
    "corrections": "",
    "head_matter": "JOHN PETE FEDORONKO and JERRY FEDORONKO, JR., Co-Executors of the Estate of Elsie Peterson Fedoronko Hardwick v. AMERICAN DEFENDER LIFE INSURANCE COMPANY and FIRST CITIZENS BANK AND TRUST COMPANY\nNo. 835SC1009\n(Filed 17 July 1984)\n1. Insurance g 37.2\u2014 life insurance \u2014 suicide\u2014sufficiency of evidence\nIn an action to recover the proceeds of insurance policies which defendant refused to pay on the ground that insured had committed suicide within one year of issuance of the policies, the trial court did not err in denying defendant\u2019s motions for directed Verdict and judgment n.o.v., since plaintiffs denied that insured had committed suicide; the controlling evidence was largely oral testimony and circumstantial, not documentary, evidence; the position of insured\u2019s body, and the neatly folded blanket on top, were unusual for a suicide; there was no evidence that a pistol found in the room with insured was the weapon that killed her; the medical examiner believed homicide was a possible cause of death; although no charges were brought, the sheriff continued to investigate the death as a homicide for over two years; no suicide note was found; the insured\u2019s children testified that she was in good spirits when they visited her a few days before her death; and the insured\u2019s husband claimed his Fifth Amendment privilege against self-incrimination in response to questions about whether he killed his wife.\n2. Constitutional Law \u00a7 74; Evidence 8 34.1\u2014 silence of witness \u2014 basis for inference by factfinder\nA witness\u2019s silence can provide the basis for an inference by the fact-finder, even though it cannot be used as evidence from which to find him guilty.\n3. Insurance 8 27.1; Attorneys 8 7\u2014 credit life insurance \u2014 rate of interest on proceeds held by insurer \u2014 attorney fees\nWhere plaintiffs\u2019 action to recover on two credit life insurance policies was determined in their favor, the trial court did not err in declining to award plaintiffs attorney fees, since no statute authorized such an award; however, the trial court did err in awarding interest of 8\u00b0/o pursuant to G.S. 24-1, since the rate of interest was controlled by G.S. 58-205.3(a) and should have been \u201cnot less than the then current rate of interest on death proceeds left on deposit with the insurer.\u201d\nAppeal by plaintiffs and defendant American Defender Life Insurance Company (hereinafter defendant) from Brown, Judge. Judgment entered 11 March 1983 in Superior Court, PENDER County. Heard in the Court of Appeals 7 June 1984.\nPlaintiffs sued defendant to recover the proceeds of two credit life insurance policies. Defendant had issued the policies to insure plaintiffs\u2019 testate, but had refused to pay the proceeds when she died. Defendant claimed the insured had committed suicide within one year of issuance of the policies, thereby barring payment of proceeds under the terms of the policies. The insured had acquired the credit life insurance policies to insure availability of funds with which to pay two loans made to her by the other defendant, First Citizens Bank and Trust Company.\nFirst Citizens obtained a judgment for the full amount of both debts, plus fifteen percent interest from 9 July 1981 and attorney fees. Plaintiffs do not challenge on appeal the judgment in favor of First Citizens.\nUpon a jury verdict that the insured did not commit suicide, the trial court also entered judgment in favor of plaintiffs and against defendant for the face amount of both credit life insurance policies, plus eight percent interest from 10 July 1981. Plaintiffs and defendant appeal from this judgment.\nMoore & Biberstein, by R. V Biberstein, Jr., for plaintiffs.\nSmith, Moore, Smith, Schell & Hunter, by Ted R. Reynolds and Maria J. Mangano, for defendant American Defender Life Insurance Company."
  },
  "file_name": "0655-01",
  "first_page_order": 683,
  "last_page_order": 687
}
