272 S.E.2d 394 (N.C.App. 1980), 8010DC348, Standard Supply Co., Inc. v. Reliance Ins. Co.
|Citation:||272 S.E.2d 394, 49 N.C.App. 616|
|Party Name:||The STANDARD SUPPLY COMPANY, INC. v. RELIANCE INSURANCE COMPANY; George W. Eaves; and Eaves Insurance Agency, Inc.|
|Case Date:||December 02, 1980|
|Court:||Court of Appeals of North Carolina|
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Reynolds & Howard by E. Cader Howard, Raleigh, for plaintiff.
Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendant Reliance Ins. Co.
Young, Moore, Henderson & Alvis by Joseph C. Moore, Jr., and Walter Brock, Jr., Raleigh, for defendants Eaves.
[49 N.C.App. 619] Plaintiff first assigns as error the granting of defendants Eaves Agency's and George Eaves' motions for directed verdict. Taking plaintiff's evidence to be true and giving plaintiff the most favorable interpretation of the evidence, it remains that plaintiff, as a matter of law, has failed to make out a case of actionable negligence against Eaves Agency or Eaves individually. Plaintiff asserts that there was evidence of failure to provide plaintiff with the renewed policy, and that since Eaves had a duty to furnish plaintiff with the policy, this breach of duty constitutes negligence on their part. While accepting, arguendo, that there was evidence as to failure to furnish the policy to plaintiff, there is no showing of any causal relationship between such omission and plaintiff's subsequent loss, i. e., plaintiff's evidence lacked the ingredient of proximate cause essential in establishing actionable negligence. Plaintiff argues that had it received the policy, it would have then been on notice of the exclusion and could have acted to procure a different type of coverage, presumably without the exclusion. Plaintiff's witnesses-the principal officers in the corporation-testified, however, that they had never read the predecessor policies (which were duplicative of the renewal policy) and that even if they had received the renewal policy, they would not have read it.
Neither can we accept plaintiff's argument that defendants Eaves were negligent in not informing Reliance that the dwelling house was unoccupied. The evidence clearly shows that Reliance ordered its own investigation of the status of the property and that its investigator reported the property to be "not vacant". Plaintiff's failure to respond to Eaves' request for the name of plaintiff's tenant cannot be translated into an act of negligence on the part of Eaves. Eaves had no duty, independent of Reliance, to inspect the property or to determine whether the property was occupied.
Plaintiff next assigns as error the failure of the trial court to direct a verdict in its favor against Reliance. The heart of plaintiff's claim against Reliance lies in the theory of waiver, based upon the...
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