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1. Insurance_house destroyed by fire_issue of fact as to origin_summary judgment, directed verdict properly denied
There was a genuine issue of material fact about the origin of a fire which destroyed a house, and summary judgment and a directed verdict for defendant insurer were properly denied in a contested insurance claim.
2. Insurance_house destroyed by fire_vandalism exclusion_issue of fact as to origin of
fire_summary judgment, directed verdict inappropriate
Summary judgment and directed verdict for defendant insurer were properly denied in an insurance claim in which defendant argued that an exclusion for vandalism and malicious mischief applied. There was no conclusive evidence as to the origins of the fire; no appellate opinion was issued on whether arson constitutes vandalism under exclusionary clauses.
3. Insurance_house destroyed by fire_exclusion for neglect_issue of fact
There was a question of fact, so that summary judgment and a directed verdict for defendant insurer were properly denied, in an insurance claim arising from the burning of a house where defendant contended that the policy excluded coverage for neglect.
4. Insurance_house destroyed by fire_exclusion of inadequate or faulty
maintenance_condemnation--issue of fact
Summary judgment and a directed verdict for defendant insurer were properly denied in an action on an insurance policy for a house destroyed by fire. Defendant insurer contended that an exclusion for insufficient maintenance applied, relying on an admission that the house had been condemned. Regardless of the truth of the admission, it was a question for the jury.
5. Insurance_house destroyed by fire_damages_directed verdict denied
The proper measure of damages was a question for the jury in an insurance case arising from the burning of a house following incidents of vandalism, and a directed verdict for defendant insurer was properly denied.
6. Insurance_house destroyed by fire_value_opinion of manager
The trial court did not err in an action on an insurance policy for a house destroyed fire by allowing an opinion on the value of a house from the realtor who was the rental manager. Testimony about the value prior to a series of vandalism incidents before the fire, coupled with estimates of the cost of repair, was clearly relevant. Any inconsistency goes to credibility and is appropriate for cross-examination, but does not bear on admissibility.
7. Evidence_testimony contradicting admission_supplemental response to admission
The trial court did not err by admitting evidence that contradicted an admission by plaintiff where a supplemental response to the request for admissions had been filed fifteen minutes after the original. The court allowed defendant to raise the issue to the jury and instructed on the admission.
8. Appeal and Error_preservation of issues--instructions as given_requested
The issue of the instructions as given was not properly preserved for appeal where defendant did not object. The court did not err by not giving defendant's requested instructions because they did not represent a correct statement of the law.
9. Insurance_prejudgment interest_North Carolina Insurance Guaranty Association
The identity of the North Carolina Insurance Guaranty Association as a statutory creation relieves it of liability for prejudgment interest.
G. Hugh Moore, for plaintiff.
Baucom, Claytor, Benton, Morgan & Wood, P.A., by James F. Wood, III; and Nelson Mullins Riley & Scarborough, LLP, by Christopher J. Blake, Joseph W. Eason, and Leslie Lane Mize, for defendants.
George S. Papadopoulos (plaintiff) brought a breach of contract action against State Capital Insurance Company (State Capital). While the action was pending, an order of liquidation with a finding of insolvency was entered against State Capital; the North Carolina Insurance Guaranty Association (the NCIGA) wassubstituted as defendant in the action with the consent of all parties (State Capital and the NCIGA, collectively defendant). On 7 April 2005, Judge James F. Ammons, Jr. entered an order denying defendant's motion for summary judgment, and on 10 October 2005, following a jury trial, Judge Jack A. Thompson entered final judgment against defendant and denied defendant's motion for judgment notwithstanding the verdict. It is from these orders that defendant now appeals. Plaintiff cross-appeals from the judgment entered 10 October 2005 by Judge Jack A. Thompson. After a thorough review of the record, we find no error.
Plaintiff owned a house in Sanford, North Carolina. In 1986, plaintiff moved to Massachusetts, hiring Wayne Spivey (Spivey), an experienced real estate broker, to manage the property as a rental. In August 2000, the property's tenants moved out. Shortly thereafter, Spivey discovered that the house had been vandalized. Spivey contacted plaintiff, the police, and the local agent of State Capital, which insured the property. A repairman was called and an estimate received; however, further vandalism, including a broken window, was discovered before the repairs could be accomplished. Spivey again contacted plaintiff, a repairman, and the police; plaintiff then contacted State Capital, which sent an adjuster to examine the house. Once again, before any repairs could be made, the house was vandalized, with burns and additional broken windows. Spivey yet again contacted the repairman, who told him that the repair cost would be an additional three or four hundred dollars. At this point, Connie Cockerham (Cockerham), anagent for State Capital, told Spivey not to bother getting yet another estimate from the repairman, but simply to have the work done.
After the vandalism of the house, plaintiff submitted a claim for $3,500.00; he was paid $2,700.00 by State Capital in satisfaction of that claim. As a result of the vandalism, the City of Sanford contacted plaintiff via its city code inspector, Carlton Anglin (Anglin). Anglin informed plaintiff of several violations, and placed a sign reading Under Minimum Housing on the house. (See footnote 1) In addition, a hearing was scheduled for 20 November 2000. A fire destroyed the house before that hearing was held.
On 12 November 2000, the police called Spivey to the house after they discovered a smoldering blanket inside it. Later that night, Spivey was again called to the house; this time the entire house was ablazed, and it burned to the ground. Spivey contacted plaintiff. Plaintiff authorized Spivey to have the debris removed, and Spivey did so. The removal cost $4,000.00, and was performed with the consent of Cockerham, who told plaintiff that he should pay for it, but that it was covered under his insurance policy.
Cockerham never indicated to plaintiff that there was a possibility the claim might be denied; to the contrary, she told him in January 2001 that she had calculated the value of the house to be $90,148.00, and that that amount, when combined with the costof debris removal and loss of rent, would essentially max out his policy limits. Plaintiff contacted Cockerham to see if anything was required of him to finalize the claim. The first indication that he had that there was any coverage issue at all was when he was so informed by Cockerham on 20 March 2001. Surprised by this new information, plaintiff memorialized their conversation in a letter sent to Cockerham that day. (See footnote 2) Plaintiff again spoke with Cockerham on 21 June 2001, at which point Cockerham informed plaintiff that although no final decision had been made, the company was leaning towards providing coverage. Approximately one week later, plaintiff heard from defendant's trial counsel. Upon State Capital's denial of his claim, plaintiff filed suit for breach of contract.
Defendant first contends that the trial court erred in denying its motion for summary judgment. This argument is essentially repeated in defendant's contention that the trial court committed reversible error in denying defendant's motions for directed verdict and judgment notwithstanding the verdict. Accordingly, we will address these contentions together.
The standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Litvak v. Smith, ___ N.C. App. ___, ___, 636 S.E.2d 327, 329 (2006)(quoting Gattis v. Scotland Cty. Bd. of Educ., 173 N.C. App. 638, 639, 622 S.E.2d 630, 631 (2005)). On appeal our standard of review for a judgment notwithstanding the verdict is the same as that for a directed verdict; that is, whether the evidence was sufficient to go to the jury. Overton v. Purvis, 162 N.C. App. 241, 244, 591 S.E.2d 18, 21 (2004) (quoting Whitaker v. Akers, 137 N.C. App. 274, 277, 527 S.E.2d 721, 724 (2000)) (internal quotations omitted). When considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence, and resolving [a]ny conflicts and inconsistencies in the evidence . . . in favor of the non-moving party. Jernigan v. Herring, 179 N.C. App. 390, 392-93, 633 S.E.2d 874, 876-77 (2006) (citations omitted). Furthermore, the motion must be denied [i]f there is more than a scintilla of evidence supporting each element of the non-moving party's claim. . . . Id. at 392-93, 633 S.E.2d at 877.
Defendant relied on four separate grounds for summary judgment at trial. Specifically, defendant claimed (1) that plaintiff's house was not damaged by an occurrence as defined by the policy; (2) that the policy excluded coverage for vandalism and malicious mischief to vacant properties; (3) that the policy excluded coverage for loss due to plaintiff's neglect; and (4) that the policy excluded coverage for faulty, inadequate, or defective maintenance. Defendant essentially reiterates these claims on appeal.  Defendant first claims that the insurance contract requires that the fire be caused by an occurrence as defined by the contract, and that in this case the fire was caused by arson. Occurrence is defined in the contract as an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in . . . 'property damage.' Although defendant claims that [t]he evidence was uncontroverted that [p]laintiff's house was destroyed by arson, which is an intentional act, nowhere does defendant provide examples of this evidence. Nor does defendant cite to pages in the transcript, or otherwise point the Court towards a source at which might verify its claim. In fact, plaintiff contradicts this claim, stating in his brief that there is absolutely no evidence that the fire was intentionally set by plaintiff or anyone else. Moreover, the report prepared by defendant's investigator states that [d]ue to the degree of destruction to the risk, a specific origin and cause of this fire could not be determined. It appears, therefore, that this is a genuine issue of material fact, which would preclude summary judgment. Likewise, because plaintiff, as the non-moving party, is entitled to resolution of any conflicts and inconsistencies in his favor, a directed verdict is also inappropriate.
 Defendant next argues that the policy excluded coverage for vandalism and malicious mischief to vacant buildings. Specifically, defendant points to that part of the policy that reads: we do not insure . . . loss caused by . . . (f) vandalismor malicious mischief, theft or attempted theft if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. Once again, the Court notes that there is no conclusive evidence as to the origins of the fire. As such, neither summary judgment nor a directed verdict is appropriate on this issue. We therefore decline to issue an opinion on whether arson constitutes vandalism for purposes of exclusionary clauses in this State.
Additionally, as plaintiff points out in his brief, the provision cited by defendant is located in a Special Form providing Extended Coverage. While there is also a vacancy exclusion found in the main policy, it applies only to risks located in Protection Classes 9, 9S or 10; plaintiff's house was classified as Protection Class 4.
 Defendant next contends that the policy excluded coverage for loss due to plaintiff's neglect. Specifically, the contract reads:
We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
Judges MCGEE and BRYANT concur.
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