St. Paul Fire & Marine Ins. Co. v. W. P. Rose Supply Co., 738DC525
| Decision Date | 29 August 1973 |
| Docket Number | No. 738DC525,738DC525 |
| Parties | ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. W. P. ROSE SUPPLY COMPANY. |
| Court | North Carolina Court of Appeals |
C. K. Brown, Jr., Raleigh, for plaintiff appellant.
Smith & Everett, by James N. Smith, and James D. Womble, Jr., Goldsboro, for defendant appellee.
Insured's counsel took the position that the claim against the Tort-feasor could not be split and maintained suit for the total damages. His view is supported by Hardware Mutual Fire Insurance Co. v. Sheek, 272 N.C. 484, 158 S.E.2d 635. There the court said: Similarly, in Phillips v. Alston, 257 N.C. 255, 125 S.E.2d 580, the court said:
In Nationwide Mutual Insurance Co. v. Spivey, 259 N.C. 732, 131 S.E.2d 338, the court approved a suit by an insured against a Tort-feasor wherein the insured had limited his claim to the uncompensated part of his loss. In Spivey the court said, With respect to the Insured in the present case, therefore, without regard to whether it might have limited its claim against the Tort- feasor to its uncompensated loss, it could and did properly sue for the entire loss. The Insurer would have been a proper, but not necessary party. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231.
Insurer urges that its right of subrogation requires that Insured's partial recovery against the Tort-feasor he prorated between Insured and Insurer in the ratio that their respective loss bears to the cash received. Insurer also argues that its share should be calculated without regard to expenses for counsel that Insured incurred in the prosecution of the suit against the Tort-feasor which resulted in the recovery of the funds in dispute.
In Powell & Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426, the court sa...
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