165 F.3d 19 (4th Cir. 1998), 97-2185, National Enterprises, Inc. v. South Carolina Ins. Co.

Docket Nº:97-2185.
Citation:165 F.3d 19
Party Name:NATIONAL ENTERPRISES, INCORPORATED, Plaintiff-Appellee, v. SOUTH CAROLINA INSURANCE COMPANY, Defendant-Appellant, v. Jon F. CARMAIN; Linda B. Carmain, Third Party Defendants.
Case Date:October 29, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 19

165 F.3d 19 (4th Cir. 1998)





Jon F. CARMAIN; Linda B. Carmain, Third Party Defendants.

No. 97-2185.

United States Court of Appeals, Fourth Circuit

October 29, 1998

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (CA-96-1381-3-10)

William B. Woods, Donna Seegars Givens, Woods & Givens, Lexington, South Carolina, for Appellant.

David W. Robinson, II, D. Clay Robinson, Robinson, McFadden & Moore, P.C., Columbia, South Carolina, for Appellee.

Before WIDENER and HAMILTON, Circuit Judges, and HALL, Senior Circuit Judge.



The South Carolina Insurance Company (SCIC) appeals from the district court's order awarding summary judgment to National Enterprises, Inc., (NEI) on its action to recover under a flood insurance policy issued by SCIC. For the reasons that follow, we affirm.

The relevant facts are undisputed. In 1980, Jon and Linda Carmain purchased a cottage in Nags Head, North Carolina, which they financed through Atlantic Permanent Federal Savings and Loan. SCIC issued a flood insurance policy on the property. After the property was destroyed by storms in late 1991 and early 1992, the Carmains made no further mortgage payments on the note which, by that time, had been assigned to Trustbank and later to the Resolution Trust Corporation (RTC). In 1993, the Carmains sued SCIC to recover on the flood insurance policy and obtained a default judgment which SCIC ultimately paid.

In 1995, NEI acquired the mortgage and note and brought this action against SCIC to recover under the flood insurance policy. The district court found that under the plain terms of the policy, NEI was the primary insured and thus entitled to full payment. Rejecting each of SCIC's defenses, the district court awarded summary judgment in favor of NEI. SCIC appeals, raising six claims.

We review a grant of summary judgment de novo. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). Summary judgment is appropriate only when the court, viewing the record as a whole and in the light most favorable to the non-moving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

First, SCIC contends that NEI is not entitled to payment of the proceeds because it was not an "insured person" under the terms of the policy. The policy provides that "persons insured" include "any mortgagee ... named in the application and declaration page." SCIC claims that because NEI's name does not appear in the Declaration Pages for 1991 and 1992, it was not an "insured person." The policy states that any loss "shall be payable to the aforesaid as mortgagee (or trustee) as interest may appear under all present or future mortgages upon the property described in which the aforesaid may have an interest." The amendment to the declaration page issued by SCIC for the year January 22, 1991 through January 22, 1992, lists Trustbank as mortgagee. We agree with the district court's conclusion that, when NEI purchased the note and mortgage from the RTC, it acquired the interests of its...

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