{
  "id": 8524863,
  "name": "CLIFFORD DANIEL LOCKWOOD v. BEN ALEXANDER PORTER, JR., CHARLES JONES and TRYON MANOR CORPORATION",
  "name_abbreviation": "Lockwood v. Porter",
  "decision_date": "1990-05-01",
  "docket_number": "No. 8926DC219",
  "first_page": "410",
  "last_page": "412",
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      "cite": "98 N.C. App. 410"
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    "name": "North Carolina Court of Appeals"
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      "reporter": "F.2d",
      "year": 1973,
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      "cite": "360 F.Supp. 223",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
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        31480
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      "year": 1972,
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  "last_updated": "2023-07-14T19:26:07.401162+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges COZORT and LEWIS concur."
    ],
    "parties": [
      "CLIFFORD DANIEL LOCKWOOD v. BEN ALEXANDER PORTER, JR., CHARLES JONES and TRYON MANOR CORPORATION"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nPlaintiff, driving a vehicle owned by Janice G. McGlen and insured by Aetna Casualty & Surety Company, suffered injuries as a consequence of a three-car collision caused by defendant Porter, an uninsured motorist. His suit as an unnamed insured under McGlen\u2019s policy against the alleged uninsured motorist for medical payments was answered by Aetna in its own name as G.S. 20-279.21(b)(3)a permits. In answering Aetna also moved for summary judgment based upon plaintiffs failure to comply with policy provisions mandating that:\nA person seeking any coverage must:\n1. Cooperate with us in the investigation, settlement or defense of any claim or suit.\n3. Submit, as often as we reasonably require, to physical exams by physicians we select. We will pay for these exams.\nFollowing a hearing on appellee\u2019s motion plaintiff\u2019s action was dismissed by summary judgment because the materials of both parties indicated without contradiction that plaintiff refused to appear for a doctor\u2019s appointment that Aetna scheduled under the foregoing policy provisions. In his affidavit plaintiff stated in substance that: Aetna made an appointment for him to be examined at 9:30 a.m. on 25 April 1984 by Dr. John Roper, an orthopedic physician; he failed to keep the appointment because he did not want to waste his time with a doctor who was not going to do anything for him and would report to Aetna that nothing was wrong with him when that was not so; and he thought the whole situation was a rip-off.\nThe foregoing facts give rise to the following legal conclusions: The cooperation clause was binding upon plaintiff as an additional insured operating an automobile with the permission of the insured. 8 J. Appleman, Insurance Law and Practice Sec. 4775 (1981). Aetna\u2019s right to have plaintiff examined by its physician is a material part of the insurance contract, and plaintiff\u2019s unjustified refusal to be so examined violated the cooperation clause of the policy and bars his action as a matter of law. Orozco v. State Farm Mutual Insurance Co., 360 F.Supp. 223 (S.D. Fla. 1972), aff\u2019d, 480 F.2d 923 (5th Cir. 1973). Though failure to cooperate under an insurance policy is an affirmative defense upon which Aetna has the burden of proof, MacClure v. Accident & Casualty Insurance Co. of Winterthur, Switzerland, 229 N.C. 305, 49 S.E.2d 742 (1948), the dismissal was nevertheless correct, since plaintiff\u2019s own sworn admission established the defense as a matter of law. Hedgecock v. Jefferson Standard Life Insurance Co., 212 N.C. 638, 194 S.E. 86 (1937).\nAffirmed.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Price, Smith and Bednarik, by Daniel J. Clifton and Michael J. Bednarik, for plaintiff appellant.",
      "Underwood Kinsey & Warren, by Richard L. Farley and Kenneth S. Cannaday, for appellee Aetna Casualty & Surety Company."
    ],
    "corrections": "",
    "head_matter": "CLIFFORD DANIEL LOCKWOOD v. BEN ALEXANDER PORTER, JR., CHARLES JONES and TRYON MANOR CORPORATION\nNo. 8926DC219\n(Filed 1 May 1990)\nInsurance \u00a7 101 (NCI3d)\u2014 automobile insurance \u2014 insurer\u2019s right to have plaintiff examined by doctor \u2014 plaintiff\u2019s refusal to cooperate \u2014 action for medical payments barred\nAn automobile insurer\u2019s right to have plaintiff examined by its physician was a material part of the insurance contract, and plaintiffs unjustified refusal to be examined violated the cooperation clause of the policy and barred plaintiff\u2019s action for medical payments as a matter of law.\nAm Jur 2d, Automobile Insurance \u00a7\u00a7 405, 406.\nAPPEAL by plaintiff from judgment entered 21 October 1988 by Cantrell, Judge, in MECKLENBURG County District Court. Heard in the Court of Appeals 10 October 1989.\nPrice, Smith and Bednarik, by Daniel J. Clifton and Michael J. Bednarik, for plaintiff appellant.\nUnderwood Kinsey & Warren, by Richard L. Farley and Kenneth S. Cannaday, for appellee Aetna Casualty & Surety Company."
  },
  "file_name": "0410-01",
  "first_page_order": 438,
  "last_page_order": 440
}
