State ex rel. Ingram v. North Carolina Farm Bureau Insurance Agency, Inc. , 1981 N.C. App. LEXIS 2150 ( 1981 )

HILL, Judge.

The crux of this case is whether the trial court was correct in concluding that the defendant did not procure insurance within the meaning of G. S. 58-53.3 and in granting the defendant’s motion for involuntary dismissal.

The trial judge made the following findings of fact and conclusions of law:

1. The plaintiff, John Randolph Ingram, is the duly elected Commissioner of Insurance for the State of North Carolina, and, pursuant to authority of N.C.G.S. § 58-9(5), is authorized and empowered, through the Attorney General of North Carolina, to institute civil actions for a violation of Chapter 58, North Carolina General Statutes.

2. The defendant, North Carolina Farm Bureau Insurance Agency, Inc., [hereinafter Agency] is a corporation organized and existing under and by virtue of the laws of the State of North Carolina.

3. Prior to 1972 Sequoia Insurance Company issued to American Agricultural Insurance Company, Inc. an “Errors and Omissions” master group insurance policy number EL-20-10-11.

4. Neither the Sequoia Insurance Company or the American Agricultural Insurance Agency, Inc. are licensed to do business in North Carolina.

5.During the period January 1,1972, to December 31, 1978, and prior thereto, either Charles Houck or Paul Lancaster, both employees of the North Carolina Farm Bureau Mutual Insurance Company, Inc. (not a party to this action) received inquiries from sales agents of the North Carolina Farm Bureau Mutual Insurance Company, Inc., regarding the availability of errors and omissions insurance coverage for their agencies located in various parts of North Carolina.

6. Upon receiving the inquiries from the sales agents either Mr. Houck or Mr. Lancaster would, upon request, forward to said sales agents information regarding errors and omissions insurance coverage available from American Agricultural Insurance Agency, Inc.

7. During the period of time from January 1,1972, to December 31,1978, the defendant had no paid employees, salespersons or claim adjusters nor was there any evidence that anyone involved with the defendant was a licensed agent for the defendant, Sequoia Insurance Company, or American Agricultural Insurance Agency, Inc.

8. During the period of time from January 1,1972, to December 31, 1978, neither the defendant nor anyone involved with defendant had the power or authority to bind coverage or countersign policies of errors and omissions insurance on behalf of American Agricultural Insurance Agency, Inc. [hereinafter AAIAI] or Sequoia Insurance Company under policy number EL-20-10-11.

9. During the period of time from January 1, 1972, to December 31, 1978, the defendant did not adjust any claims under errors and omissions insurance policy number EL-20-10-11.

10. During the period of time from January 1,1972, to December 31,1978, the defendant did not receive written applications for insurance under errors and omissions policy number EL-20-10-11.

11. During the period of time from January 1,1972, to December 31,1978, the defendant was not selling, binding coverage, or attempting to solicit the purchase of errors and omissions coverage under policy number EL-20-10-11.

12. While the defendant, through a manager or administrator, transmitted premiums and other data concerning the errors and omissions coverage between sales agents of the North Carolina Farm Bureau Mutual Insurance Company, Inc. and [AAIAI], defendant’s role was administrative or ministerial in nature. (Emphasis added.)

Based on the above findings of facts the court makes the following conclusions of law:

1. During the period of time of January 1, 1972, to December 31,1978, the defendant did not procure insurance, under policy number EL-20-10-11 on any risk located in North Carolina with an insurance company not licensed to do business in North Carolina.

2. The defendant is not liable for the premium tax imposed by N.C.G.S. § 58-53.3 for any premiums which might have been paid for errors and omissions insurance coverage under policy number EL-20-10-11.

Appellee contends that in the context of an involuntary dismissal, the trial court’s findings of fact are conclusive if supported by any competent evidence, “even though there is evidence to the contrary.” Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 320, 182 S.E.2d 373 (1971).

We do not quarrel with appellee’s statement of the law, but do question the trial judge’s conclusions. A conclusion or inference of law by the trial court is reviewable, even though the trial court denominates it a finding of fact. Warner v. W & O, Inc., 263 N.C. 37, 40, 138 S.E.2d 782 (1964).

Finding of Fact No. 12 acknowledges that the defendant, through a manager or administrator, transmitted premiums and data concerning the errors and omissions coverage between the sales agents of the North Carolina Farm Bureau Mutual Insurance Company, Inc., and AAIAI. The “finding” goes on to conclude that defendant’s role was merely administrative or ministerial. Hence, we must look to the record to see whether the acts of defendant in transmitting premiums and data were such acts as constitute procurement. We conclude they were.

We do not find the word “procure” defined in the insurance statutes. Webster’s International Dictionary defines the word as meaning “... to take care of, to bring about, to obtain.”

We find “procure” defined in the case of Marcus v. Bernstein, 117 N.C. 31, 34, 23 S.E. 38 (1895), a non-insurance case, as meaning

‘to contrive, to bring about, to effect, to cause.’ Webster Diet. Procure means action ....

The record shows that Agency was formed for the purpose of placing those types of insurance or those particular risks of insurance which North Carolina Farm Bureau insurance agents cannot place with the North Carolina Farm Bureau Insurance Company (hereinafter Company). Agency has officers, but no employees, so that any work done by Agency is done by employees of Company. For the use of their employees, Company charges Agency a management fee.

Agency administered the errors and omissions program in North Carolina, receiving a broker’s commission constituting 5% of the premiums collected. Prior to 1975, Mr. Houck administered the errors and omissions program. Subsequent to that date, Mr. Lancaster, Associate Director of Sales for Company, administered the plan. The salaries of both Houck and Lancaster were paid by Company.

The record further shows that Agency received data about the program from AAIAI, including application and renewal forms, and forwarded them to prospective applicants. Although the trial judge found that Agency did not receive written applications for insurance, we find evidence in the record that insureds sent applications for renewals of insurance to the defendant. More importantly for purposes of our analysis, the record unequivocally shows Agency billed the insureds and collected premiums from them. In turn, Agency was billed for premiums by AAIAI, received premium calculation sheets from AAIAI, wrote checks for premiums collected, less 5% commission retained, and forwarded the checks to AAIAI.

The record shows that on occasion Agency received many certificates from AAIAI written on its master policy with Sequoia and forwarded the certificates of insurance to the agents covered. On occasion, Agency returned certificates to AAIAI, calling attention to errors or charges. On other occasions, Agency acknowledged to agents receipt of their requests for information regarding the cost of an errors and omissions policy and described to the applicants the available plans with instructions that, “If you want the insurance, either Plan #1 or Plan #2, all you need to do is let me know, and specify the plan desired.”

The performance of defendant Agency, as outlined, involves action, and action is an element of procurement. The trial judge erred in his conclusion that defendant did not procure errors and omissions insurance with an insurance company not licensed to do business in North Carolina, and, therefore, was not liable for the premium tax imposed by G. S. 58-53.3.

We have examined the remaining assignments of error, but do not address them since they may not arise on a subsequent trial of the case.

The decision of the trial court is

Reversed and remanded.

Judge WELLS concurs. Judge Arnold dissents.