Jamestown Mutual Insurance v. Nationwide Mutual Insurance
Jamestown Mutual Insurance v. Nationwide Mutual Insurance
Opinion of the Court
The facts briefly stated are as follows: On 8 February 1963 William Clark Hamrick was driving an automobile owned by Tedder Motor Company, with the view of purchasing it, when he was involved in an accident. As a result of the accident, Richard Wiseman Splown, John P. Compton, Mrs. Willie Bowles Lovelace, and Frances Sisk Holland made claims against William for personal injuries and property damages sustained in the accident. Nationwide, at the time, had in force a family automobile liability policy which it had issued to W. F. Hamrick, the father of William. Jamestown had in force a garage liability policy which it had issued to Thomas N. Tedder, d/b/a Tedder Motor Company. Both Jamestown and Nationwide investigated the
On 14 February 1984 Jamestown filed a declaratory judgment action against Nationwide in the Superior Court of Meck-lenburg County, seeking a determination of the rights, duties and liabilities as between the companies under the terms of their respective policies. Judgment was entered in favor of Jamestown. Nationwide appealed, and the judgment was affirmed by an opinion of this Court reported in 266 N.C. 430, 146 S.E. 2d 410. This decision established: (1) That Nationwide’s policy affords coverage to William with respect to claims arising out of the collision, and (2) that Jamestown’s policy does not afford coverage to William and that no claims by any of the injured parties arising out of this collision are valid against Jamestown. Under this decision Nationwide took over the defense of the Holland case, settled it, and paid to the limits of its policy the judgment in the Lovelace case.
Jamestown contends that in view of the decision in the declaratory judgment action, the trial court in this case properly found Jamestown was entitled to reimbursement from Nationwide for its expenses involved in this matter for investigation, settlement, and defense of the claims against Nationwide’s insured William.
A careful examination of the record discloses that the material findings of fact by the trial judge are amply supported by the evidence. Findings of fact which are supported by competent evidence, even though there is evidence contra, are conclusive on appeal. Jamestown Mutual Ins. Co. v. Nationwide Mutual Ins. Co., 266 N.C. 430, 146 S.E. 2d 410; Mitchell v. Barfield, 232 N.C. 325, 59 S.E. 2d 810; Distributing Corp. v. Seawell, 205 N.C. 359, 171 S.E. 354. The assignments of error to the court’s findings of fact are overruled.
Nationwide further assigns as error the failure of the trial court to find the facts as tendered by Nationwide. Exceptions to the refusal of the trial judge to find certain facts will not be sustained when some of the findings requested are immaterial and the evidence in regard to others is conflicting, or appellant fails to introduce evidence in the record that would sustain such findings. Jamestown Mutual Ins. Co. v. Nationwide Mutual Ins. Co., supra; Pittman v. Snedeker, 264 N.C. 55, 140 S.E. 2d 740; 1 Strong’s N. C. Index 2d, Appeal and Error § 28, p. 160. Applying these rules, the record discloses no error in the court’s failing to adopt the findings of fact tendered by Nationwide.
Nationwide further contends the trial court erred as a matter of law in allowing Jamestown to recover under the subrogation provisions of Jamestown’s policy or under subrogation by operation of law. It is well settled that an insurer who wrongfully refuses to defend a suit against its insured is liable to the insured for sums expended in payment or settlement of the claim, for reasonable attorneys’ fees, for other expenses of defending the suit, for court costs, and for other expenses incurred because of the refusal of the insurer to defend. Nixon v. Insurance Co., 255 N.C. 106, 120 S.E. 2d 430; Anderson v. Insurance Co., 211 N.C. 23, 188 S.E. 642; Annot., 49 A.L.R. 2d 694 (1956); 44 Am. Jur. 2d, Insurance § 1547 (1969).
This appeal poses the question: Can the plaintiff insurance company recover sums paid out in settlement of the claims
Upon Nationwide’s refusal to defend William in this .action, Jamestown, at the request of William, undertook to do ,so and settled two of the claims against William, tried the Lovelace case and obtained a stay of execution on the judgment until the ultimate liability to pay it could be determined, and provided a defense in the Holland case from the time of the in
Nationwide contends, however, that Jamestown was a mere volunteer or intermeddler under no legal duty to defend in this case, and as such is not entitled to recover under the principle of subrogation. As stated in 50 Am. Jur., Subrogation § 23 (1944) : “The right of subrogation is not necessarily confined to those who are legally bound to make the payment, but extends as well to persons who pay the debt in self-protection, since they might suffer loss if the obligation is not discharged.”
Generally, the doctrine of equitable subrogation may be invoked if the obligation of another is paid by the plaintiff for the purpose of protecting some real or supposed right or interest of his own. Boney v. Central Mutual Ins. Co. of Chicago, 213 N.C. 563, 197 S.E. 122; Moring v. Privott, 146 N.C. 558, 60 S.E. 509; Davison v. Gregory, 132 N.C. 389, 43 S.E. 916; 22 N. C. L. Rev. 167 (1944). In Boney, the Home Insurance Agency took an order for an automobile liability policy from Thomas-Howard Company and confirmed placement with the Central Mutual Insurance Company of Chicago. Later, when Thomas-Howard Company had a liability claim made against it, Central Mutual denied coverage and Home Insurance Agency stepped in and provided a defense. It later turned out that Central Mutual had coverage and on appeal the Court asked this question: “Was claimant such a pure volunteer as to be deprived of the right of subrogation?” In answer, the Court said:
“ ‘Cases in our own reports illustrate the doctrine that though the party who makes the payment may, in fact, have no real or valid legal interest to protect, he may yet be subrogated when he acts in good faith, in the belief that*222 he had such interest.’ Publishing Co. v. Barber, supra [165 N.C. 478, 81 S.E. 694]....
* * *
“It is sufficient to invoke the doctrine of subrogation if (1) the obligation of another is paid; (2) ‘for the purpose of protecting some real or supposed right or interest of his own.’ 60 C. J., Subrogation, Sec. 113.”
In the instant case Jamestown defended because Nationwide refused to do so. Jamestown defended in good faith as Jamestown would have been liable had it been adjudged that Nationwide’s policy did not provide coverage for William. Under these circumstances, Jamestown was not such a pure volunteer as to be deprived of the right of subrogation. Boney v. Central Mutual Ins. Co. of Chicago, supra; Publishing Co. v. Barber, 165 N.C. 478, 81 S.E. 694.
Finally, Nationwide contends that a portion of expenses incurred by Jamestown in connection with the settlements and defense of claims against William were paid more than three years prior to the institution of this action (31 October 1967) and are barred by the three-year statute of limitations, G.S. 1-52(1).
“Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability. . . . When the statute of limitations begins to run it continues until stopped by appropriate judicial process.” Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E. 2d 570; Peal v. Martin, 207 N.C. 106, 176 S.E. 282; Washington v. Bonner, 203 N.C. 250, 165 S.E. 683; 5 Strong’s N. C. Index 2d, Limitation of Actions § 4.
In the present case Jamestown was under no disability and could have instituted suit against Nationwide at the time it paid those items which it contends Nationwide should have paid. The rights and obligations of Jamestown and Nationwide under their respective policies could have been determined in such action as well as in a declaratory judgment action. Jamestown having delayed more than three years after payment to bring action for collection of some of such items is now barred by the three-year statute as to those paid more than three years prior to the institution of this action.
Modified and Affirmed.
Reference
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- JAMESTOWN MUTUAL INSURANCE COMPANY v. NATIONWIDE MUTUAL INSURANCE COMPANY
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