An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-349

NORTH CAROLINA COURT OF APPEALS

Filed: 16 January 2007

KELLY D. BOYD and
LILLIAN CALLOWAY,
Administrators of the
Estate of CAROL B. DORN
        Plaintiffs,
                
        v.                    Carteret County
                            02 CVS 458                            
NATIONWIDE MUTUAL INSURANCE
COMPANY and BARBARA DARDEN
d/b/a DARDEN INSURANCE AGENCY,
        Defendants.

    Appeal by plaintiffs from a judgment entered 9 August 2005 by Judge Paul L. Jones in Carteret County Superior Court. Heard in the Court of Appeals 18 October 2006.

    Bowen, Berry, & Powers, LLC, by Woodberry L. Bowen, for plaintiff-appellants.

    Cox and Tillery, P.A., by J. Thomas Cox, Jr., for defendant- appellees.

    BRYANT, Judge.

    Administrators for the estate of Carol B. Dorn (plaintiffs) appeal from a 9 August 2005 judgment granting summary judgment to Nationwide Mutual Insurance Company and Barbara Darden, d/b/a, Darden Insurance Agency (defendants).
    In the summer of 1998, Nationwide Insurance Company advised their insureds with property located within 1000 feet of the water on the North Carolina coast that they would no longer provide insurance for windstorm and hail damage for those properties and would not renew existing insurance policies. On 26 August 1998,Nationwide sent a letter to Ms. Dorn giving her notice that her policy for insurance would be cancelled on 8 October 1998. The letter gave her notice of cancellation, told her that she did not meet the insurability standards at Nationwide, advised her to get coverage through another company, and gave her contact numbers and addresses if she had any questions about the plan. Ms. Dorn denied having received this letter. Subsequently, Nationwide sent a form to be signed by Ms. Dorn and Barbara Darden (her Nationwide agent) that excluded windstorm or hail coverage on her policy. The “WINDSTORM OR HAIL REJECTION FORM,” states:    

        The undersigned policyholder or applicant      acknowledges and understands that he/she has rejected coverage for the peril of windstorm or hail. This rejection of coverage for these perils will apply to any renewal, reinstatement, substitute, amended, altered, modified, transfer or replacement policy with this company or with any affiliated company. This rejection of coverage for these perils is valid and binding on all insureds and persons claiming benefits under the policy/application. The undersigned also acknowledges that the property is located in an area eligible for coverage for the peril of windstorm or hail from North Carolina Insurance Underwriting Association. Failure by the undersigned to apply for or obtain coverage for the peril of windstorm or hail through the Association does not alter the rejection of this coverage in connection with the policy/application.

Ms. Dorn went into Darden's office, spoke to an agent, and signed the rejection form after reading it. Ms. Dorn thereafter received an application for wind and hail coverage from the North CarolinaJoint Underwriting Association and she went into Darden's office to discuss the application. While in the office, she did not sign the application for wind and hail coverage from the North Carolina Joint Underwriting Association; however she did sign the “WINDSTORM OR HAIL REJECTION FORM,” so that she could continue her homeowners' policy with Nationwide. Ms. Dorn testified the agent stated Ms. Dorn could get windstorm and hail coverage elsewhere, but that she could not have such coverage through Nationwide. The agent did inform Ms. Dorn that her policy would have a “wind deletion.”
    Following the signing of the rejection form excluding windstorm and hail coverage, Nationwide sent Ms. Dorn a new Homeowners's Policy Declaration indicating the changes made to her policy on 8 October 1998. On the first declarations page after the change in coverage, it indicated in bold print in the section labeled “The Following Change(s) Have Been Made to Your Policy” that “THIS POLICY DOES NOT PROVIDE COVERAGE FOR THE PERILS OF WINDSTORM OR HAIL.” Thereafter, Nationwide sent Ms. Dorn two other declaration pages on 25 May 1999 and 29 June 1999 indicating the same windstorm and hail exclusion.
    In May of 1999 Ms. Dorn took out a second mortgage on her home with Citifinancial. An agent of Citifinancial, Kay Daughtry, said she contacted Darden Insurance Agency and was told by the receptionist, Glendya White, that the property was fully insured with no exclusions. This contention is denied by Darden who asserts they never make such blanket statements and further asserts there is no insurance policy in existence which provides coveragewithout any exclusions. As to this contact the record reflects that Citifinancial was immediately faxed a Memorandum of Insurance from Darden that indicates the existence of an insurance policy on Ms. Dorn's property and which contains the disclaimer: “A formal Declarations page superseding this Memorandum will be mailed which will provide complete updated coverages and premium details.” The only specific reference in the memorandum to wind and hail coverage is in the wind and hail deductible portion which indicates “N/A” for “not applicable.” The memorandum did not list any exclusion or describe any specific types of coverage that pertained to Ms. Dorn's policy. However, according to defendants, the full declarations pages were sent to Citifinancial and did list the Windstorm Exclusion. Ms. Dorn testified that she never saw the fax that went to Citifinancial.
    Ms. Dorn sent a check to Nationwide in early September 1999, a week before Hurricane Floyd hit, in order to obtain flood insurance. On 15 September 1999 a windstorm associated with Hurricane Floyd destroyed Ms. Dorn's house. Nationwide received the loss notice from Ms. Dorn, assigned an adjuster to review the damage, confirmed that it was caused by a windstorm and advised Ms. Dorn the loss was not covered under the insurance policy. Ms. Dorn's loss was determined not to be covered because the application for flood insurance was sent after the check and coverage cannot be requested within thirty days of an insurable event.     Ms. Dorn commenced this action on 15 April 2002 for breach of contract, negligence, negligent misrepresentation, constructive fraud, breach of fiduciary duty and unfair and deceptive trade practices, as a result of the denial of coverage for windstorm damage. The complaint was later amended to include claims for bad faith and contract reformation. On 27 July 2005, following the death of Ms. Dorn, the personal representatives of Ms. Dorn's estate filed an Order to Substitute Parties in the action. On 9 August 2005, defendants were granted summary judgment on the grounds that coverage for windstorm and hail were excluded from Ms. Dorn's policy in October 1998. From this order, plaintiffs appeal.

____________________________

    On appeal, the dispositive issue is whether the trial court erred in granting defendants' motion for summary judgment. Plaintiffs argue the trial court erred in granting defendants' motion for summary judgment because genuine issues of material fact existed as to whether Ms. Dorn: received a copy of the insurance policy; requested windstorm coverage after signing the exclusion form, and; was advised by her insurance agent not to obtain windstorm coverage.
    The standard of review on appeal from a summary judgment ruling is to review the whole record to determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Moore v. CoachmenIndustries, Inc., 129 N.C. App. 389, 393-94, 499 S.E.2d 772, 775 (1998). “The moving party bears the burden of showing the lack of [a] triable issue of fact.” Id. at 394, 499 S.E.2d at 775. “The evidence is to be viewed in the light most favorable to the nonmoving party.” Id.
    Plaintiffs argue that Ms. Dorn did not receive a copy of her original policy and therefore did not have an opportunity to read the terms of the policy. However, the provision in Ms. Dorn's policy that excludes windstorm and hail coverage was not in the original policy. The exclusions were made pursuant to (1) the cancellation notice of her original insurance policy, (2) the “WINDSTORM OR HAIL REJECTION FORM” that she signed, and (3) the three declarations pages indicating the exclusions which had been sent to Ms. Dorn after the policy had been altered. It is undisputed that Ms. Dorn received all of these notices that her original policy was altered. Further, Nationwide, through its agent Darden, faxed a memorandum to Citifinancial outlining the terms of their insurance coverage on Ms. Dorn's property.
    It is further undisputed by the parties that Ms. Dorn signed the “WINDSTORM OR HAIL EXCLUSION FORM,” while present in her local Nationwide office. In her deposition testimony, Ms. Dorn stated she asked an agent if she “had to have” the coverage that was referenced in the “Beach Plan” policy offered by the North Carolina Joint Underwriters Association. Ms. Dorn did not state that she requested windstorm and hail coverage from Nationwide, nor that she inquired what “windstorm” coverage was or that she asked specificquestions about the coverage included in her policy. The agent did not make any representations defining windstorm coverage under the policy. Ms. Dorn admitted that the agent explained that signing the form would result in a “wind deletion.” Ms. Dorn testified she thought a wind deletion meant coverage excluded damage from “maybe a southerly whatever, easter, southeaster might come by and do what they did to me before. I had no idea that it covered _ that wind [deletion] covered [everything from] A to Z[.]” Ms. Dorn testified she based this belief on her own past insurance claim when a tornado damaged the exterior paint on her home. Pursuant to Baggett v. Summerlin Ins. and Realty, Inc., 354 N.C. 347, 554 S.E.2d 336 (2001), there is no duty to “obligate the insurer or its agent to procure a policy for the insured which had not been requested.” Plaintiffs make no claim that Ms. Dorn was ever told she would be covered in the event of a windstorm by any agent of Nationwide.
    Finally, plaintiffs argue that the agent for Nationwide admitted that Ms. Dorn would have followed her advice and purchased the Beach Plan protection had the agent explained Ms. Dorn risked losing her entire home to a hurricane or tornado. However, despite such an allegation, plaintiffs did not allege Ms. Dorn had been told property damage from tornados and hurricanes would be covered under her Nationwide policy after 8 October 1998. Instead, plaintiff's allege Ms. Dorn was given an application by her Nationwide agent for the Beach Plan protection, which Ms. Dorn did not sign. In fact, when Ms. Dorn did not sign the application forthe Beach Plan protection, the agent did inform Ms. Dorn that her policy would have a “wind deletion.”
    Taking all the statements made by Ms. Dorn as true, there are no genuine issues of material fact for a jury to determine with respect to plaintiffs' claims. Based on our review of the whole record including the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, taken in the light most favorable to Ms. Dorn, we find no genuine issue of material fact exists as to plaintiffs' claims. Therefore, we affirm the trial court's granting of defendants' motion for summary judgment.
    Affirmed.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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