Hobson Const. Co., Inc. v. Great American Ins. Co.
| Decision Date | 04 December 1984 |
| Docket Number | No. 8328SC1211,8328SC1211 |
| Citation | 71 N.C.App. 586,322 S.E.2d 632 |
| Parties | HOBSON CONSTRUCTION COMPANY, INC., Richard D. Wood and Margaretta Wood v. GREAT AMERICAN INSURANCE COMPANY. |
| Court | North Carolina Court of Appeals |
William E. Greene, Asheville for plaintiff-appellant Hobson Const. Co., Inc.
Van Winkle, Buck, Wall, Starnes & Davis by Larry C. Harris, Jr. and Robert H. Haggard, Asheville, for plaintiffs-appellants Richard D. Wood and Margaretta Wood.
Roberts, Cogburn, McClure & Williams by Isaac N. Northup, Jr., and Landon Roberts, Asheville, for defendant-appellee Great American Ins. Co.
A declaratory judgment action is designed to establish in an expeditious fashion the rights, duties and liabilities of parties in situations usually involving an issue of law or the construction of a document where the facts involved are largely undisputed. Its purpose is to settle uncertainty in regard to the rights and status of parties where there exists a real controversy of a justiciable nature. Wright v. McGee, 206 N.C. 52, 173 S.E. 31 (1934). All orders, judgments and decrees in an action for declaratory judgment may be reviewed as other orders, judgments and decrees. G.S. 1-258. Declaratory judgment is appropriate for the construction of insurance contracts and in determining the extent of coverage under an insurance policy. Insurance Co. v. Simmons, Inc., 258 N.C. 69, 128 S.W.2d 19 (1962). The trial court properly undertook to interpret and apply the insurance policy in question to the facts here.
In this appeal, appellants assign the following five issues as error:
(1) Refusal of the trial court to find as fact and conclude as a matter of law that the Woods sustained "property damage" as that term is defined in the policy of insurance in question by virtue of the Woods' loss of use of the concrete arch dam for its intended purpose.
(2) Refusal of the trial court to find as fact and conclude as a matter of law that repeated flowing of impounded water under the foundation of the dam was an "occurrence" as that term is defined in the policy of insurance in question.
(3) Refusal of the trial court to find as fact and conclude as a matter of law that Hobson contracted with Great American for "completed operations coverage" and that the "occurrence" arose out of a "completed operations hazzard" as that term is defined by the policy of insurance in question.
(4) Refusal of the trial court to find as fact and conclude as a matter of law that certain exclusions contained within the policy of insurance in question are inconsistent, ambiguous, and susceptible of two interpretations, thereby affording coverage that would obligate Great American to satisfy the Woods' judgment against Hobson.
(5) The trial court's signing and entry of the judgment in this matter. Appellee responds saying that there has been no showing of the "property damage" alleged by appellants to have arisen out of the loss of use of uninjured or undestroyed tangible property. We agree with appellee. Further, we find this issue dispositive of the appeal since appellants must prevail on this first issue in order for us to reach the remaining four issues.
We note that the insured here, the plaintiff-appellant Hobson, has the burden of bringing itself within the insuring language of the policy. Once it has been determined that the insuring language embraces the particular claim or injury, the burden then shifts to the insuror to prove that a policy exclusion excepts the particular injury from coverage. Nationwide Mutual Fire Ins. Co. v. Allen, 68 N.C.App. 184, 314 S.E.2d 552 (1984). Our examination of the record before us reveals that Hobson has failed to show that the loss complained of is embraced within the...
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...of law or the construction of a document where the facts involved are largely undisputed." Hobson Constr. Co., Inc. v. Great Am. Ins. Co., 71 N.C. App. 586, 588–89, 322 S.E.2d 632, 634 (1984).Abbington's fifth claim is confusing. If Abbington claims that defendants' payoff letters violate N......
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