Hyde Ins. Agency, Inc. v. Dixie Leasing Corp.

• Decision Date: 04 June 1975
• Docket Number: No. 7528SC150,7528SC150
• Court: North Carolina Court of Appeals
• Parties: HYDE INSURANCE AGENCY, INC. v. DIXIE LEASING CORPORATION.

Page 162

215 S.E.2d 162

26 N.C.App. 138

HYDE INSURANCE AGENCY, INC. v. DIXIE LEASING CORPORATION.

No. 7528SC150.

Court of Appeals of North Carolina.

June 4, 1975.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis by Albert L. Sneed, Jr., Asheville, for plaintiff.

McGuire, Wood, Erwin & Crow by James P. Erwin, Jr., and Charles R. Worley, Asheville, for defendant.

BROCK, Chief Judge.

After the hearing on plaintiff's motion for summary judgment under Rule 56, the trial judge proceeded to make what he termed 'Findings of Fact.' Summary judgment should be entered only where there is no genuine issue as to any material fact. If findings of facts are necessary to resolve an issue as to a material fact, summary judgment is improper. There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact. Although findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. The 'Findings of Fact' entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on this appeal and are irrelevant to our decision. See Lee v. King, 23 N.C.App. 640, 643, 209 S.E.2d 831 (1974); Eggimann v. Board of Education, 22 N.C.App. 459, 464, 206 S.E.2d 754 (1974); 6 Moore's Federal Practice 56.02(11) (2d ed. 1974).

It should be noted at the outset that this is not a controversy between an insurer and an insured. The insurer, Travelers Insurance Company, is not a party to this action. The controversy here is between what appears to be a corporate insurance agent or broker and an insured.

Plaintiff contends it is entitled to recover the short rate premium because defendant cancelled the policy. Defendant contends it is obligated to pay only the pro rata daily rate of the annual premium in accordance with plaintiff's agreement. Plaintiff contends that, if it should be determined that plaintiff made such an agreement, an agreement to accept less than the short rate premium is unenforceable because it is forbidden by statute. The trial judge ruled with the plaintiff. We reverse.

The prohibition against discrimination in rates, as provided by G.S. §§ 58--44.3, 58--44.5, 58--54.4(8)c, 58--131.18, 58--248.2, and 97--104.2, is directed to insurers, agents, brokers, and other representatives of insurers. Only one of the above sections of the statutes, G.S. § 58--44.5, mentions the insured. It provides that an insured shall not Knowingly receive or accept a prohibited reduction of premium. There is nothing in the record presently before us which suggests that defendant knew the premium rate promised by plaintiff was a prohibited rate. The sanctions provided by statutes for violations of the antirebate provisions are directed to the insurers, agents, brokers, or other representatives. The statutes do not declare that contracts in violation of the antirebate provisions are void. See Headen v. Insurance Co., 206 N.C. 270, 173 S.E. 349 (1934); McNeal v. Insurance Co., 192 N.C. 450, 135 S.E. 300 (1926); Gwaltney v. Assurance Society, 132 N.C. 925, 44 S.E. 659 (1903).

'The fact that an antirebate statute has been violated does not vitiate the contract of insurance, nor entitle the insurer to obtain a reformation of the contract. In the absence of a legislative expression of intent to the contrary, an insurer cannot--at least, as against an innocent insured who is not in pari delicto--accept and retain benefits, and then plead as a defense its own violation of a statute prohibiting the granting of discriminations as to rates, as by setting up that such contract is void for discrimination. For the courts are not disposed to go beyond the expressed intention of the legislature and declare a forfeiture of policies when the legislature has not done so. In other words, the insurer cannot say that the contract of insurance is void because of a violation of an antirebate statute for the purpose of defeating the insured, and thus take advantage of its own wrong.' 5 Couch on Insurance 2d § 30:64 (2d ed. 1960) (Footnotes omitted.).

In the case presently before us, the defendant has fully performed its part of the alleged contract by allowing plaintiff to continue coverage as requested by plaintiff and has offered to pay at the rate agreed to by plaintiff. The benefit to plaintiff was an opportunity to compete with the coverage offered to defendant by Allstate Insurance Company. Plaintiff's ultimate inability to offer competitive coverage does not alter the fact that defendant forewent the opportunity to cancel plaintiff's coverage at the time it first notified plaintiff to cancel its coverage.

The Supreme...