Pruitt v. Great American Insurance Company

86 S.E.2d 401 (1955) 241 N.C. 725

Woodrow P. PRUITT
v.
GREAT AMERICAN INSURANCE COMPANY, New York, and The Wachovia Bank and Trust Company.

No. 238.

Supreme Court of North Carolina.

March 30, 1955.

W. H. McElwee, Jr., North Wilkesboro, for plaintiff, appellee.

Trivette, Holshouser & Mitchell, North Wilkesboro, and Joyner & Howison, Raleigh, for defendant, appellant, Great American Ins. Co., New York.

PARKER, Justice.

There are no allegations of fraud or of mutual mistake. Therefore, "the written policy is conclusively presumed to express the contract it purports to contain." Floars v. Aetna Life Insurance Co., 144 N.C. 232, 56 S.E. 915, 916: See also State Distributing Corp. v. Travelers Indemnity Co., 224 N.C. 370, at page 374, 30 S.E.2d 377. Lacking such allegations this suit is upon the Certificate of Insurance as written. Burton v. Life & Casualty Ins. Co., 198 N.C. 498, 152 S.E. 396.

Under an almost identical fact situation the Supreme Court of Alabama in Union Marine & General Ins. Co. v. Holmes, 249 Ala. 294, 31 So. 2d 303, 305, held that such provision as to countersigning did not make the contract ambiguous as to the period of coverage. In the Alabama Case the insurance policy contained the following provisions: "Item 2. Policy period: From February 7, 1943 to February 7, 1944 at 12:01 a. m., standard time, at the address of the insured, as stated herein. * * * In witness whereof, the company has caused this policy to be executed and attested, but this policy shall not be valid unless countersigned on the declaration page by a duly authorized agent of the company * * * Countersigned: February 8, 1943 at Birmingham, Alabama * * *." The automobile insured under said policy of insurance was destroyed by collision or upset on 7 February 1944 at 4:45 p. m. The Supreme Court of Alabama said: "Defendant's primary liability, if liable at all, for the damages claimed must rest upon the commitments expressed in the contract, as limited therein. Great American Ins. Co. v. Dover, 219 Ala. 530, 122 So. 658. Therefore, conceding that the countersigning of the policy was essential to the completed execution thereof, it is clear that the delayed countersigning did not extend the period of liability, the limitation of which was stated in the face of the contract. Nor did it inject into the contract an ambiguity as to the period of the coverage. The counter signature in fact and law merely confirmed said stated limitation and gave retroactive force to the policy as of the time it was executed by the defendant company. ``To "countersign" is to sign in addition to the signature of another in order to attest the authenticity of the other.' Royal Exchange Assurance of London v. Almon, 202 Ala. 374, 80 So. 456, 458; Hartford Fire Ins. Co. v. King, 106 Ala. 519, 17 So. 707; New York Life Ins. Co. v. Tolbert, 10 Cir., 55 F.2d 10; Mead v. Davidson, 3 Ad. & El. 303, 111 Eng. Reprint 428, 4 L.J. K.B. (N.S.) 193."

In Dillon v. General Exchange Ins. Corporation, Tex.Civ.App.1933, 60 S.W.2d 331, the facts were these: On 19 March 1931, plaintiff purchased an automobile, and at the same time paid to the seller, Chevrolet Co., for the use and benefit of the defendant Insurance Co. the required premium for one year's protection against loss by fire, theft, etc. In consideration of this premium the Insurance Co. issued the policy sued on. The policy recites on its face that the effective date of same is 19 March 1931 and the expiration date 19 March 1932. The policy also showed on its face, "``this policy shall not be valid unless countersigned by the duly authorized agent of the Company at San Antonio, Texas.'" It was countersigned on 31 March 1931. On the night of 20 March 1932 plaintiff's automobile was destroyed by fire. The Court said: "Appellant's contention is that regardless of the fact that the policy contained the expressed stipulation that it expired at noon March 19, 1932, it was nevertheless in effect on the night of March 20, 1932, because the policy also contained the stipulation that it was not valid unless countersigned by the duly authorized agent of the company at San Antonio, Tex., and that the policy was actually countersigned on March 31, 1931, that appellant had paid for one year's insurance, that he was therefore entitled to one full year's insurance, and that the policy not having been countersigned until March 31, 1931, should not have expired until March 31, 1932. We do not agree with this contention. The insurance company had a lawful right to make this policy effective from a prior date, regardless of the provision that same was not valid unless countersigned by the agent designated. This stipulation had to do with the authenticity of the policy rather than the time from which it should become effective. The policy did not provide that it was not valid until countersigned, but unless countersigned. Until might be construed as referring to time, but unless does not refer to time. Bankers Lloyds v. Montgomery, Tex.Civ.App., 42 S.W.2d 285; Schwartz v. Northern Life Ins. Co., 9 Cir., 25 F.2d 555; Anderson v. Mutual Life Ins. Co., 164 Cal. 712, 130 P. 726, Ann.Cas. 1914B, 903."

Under almost identical facts with the present case the Supreme Court of Tennessee held in McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 832, 22 A.L.R. 2d 980, that a provision in the Certificate of Insurance that this certificate "shall not be valid unless countersigned by a duly authorized representative of this company" merely confirmed the contract as stated, so that the period of coverage ran from the date stated in the policy as that of the inception of risk, rather than from the date of countersignature six days later, and insured could not recover for a loss to his automobile which occurred three days after the expiration of the period of coverage as stated in the policy.

The fact that an insurance policy provides: "This certificate shall not be valid unless countersigned by a duly authorized agent of the company" was held not to alter the inception and expiration dates as set forth on the policy in the following cases: Simons v. American Fire Underwriters of American Indemnity Co., 203 S.C. 471, 27 S.E.2d 809; Oklahoma Farm Bureau Mut. Ins. Co. v. Brown, 208 Okl. 317, 255 P.2d 919. See also Annotation 22 A.L.R. 2d 984.

Plaintiff contends in his brief that Davis v. Home Ins. Co., 125 S.C. 381, 118 S.E. 536, has identical facts with the case here. Counsel for the Indemnity Company contended in the Case of Simons v. American Fire Underwriters of American Indemnity Co., supra, which was before the Supreme Court of South Carolina in 1943, twenty years after the Davis case, that the Davis case controlled the Simons case. The South Carolina Supreme Court said [203 S.C. 471, 27 S.E.2d 811]: "* * * but in this we think the appellant is mistaken. In the Davis case the controversy arose over the fact that the loss occurred within the twelve months period for which the premium had been paid by the insured, but after twelve months from the effective date of the policy as expressed therein. In other words, the effective date stated in the policy was an earlier date than the actual date of the countersigning of the policy. And the policy contained an express provision that it should be valid only when countersigned by the duly authorized agent of the Company. Because of this provision the policy was held effective to cover the loss. In the policy now before the Court, the provision is: ``* * * but this policy shall not be valid unless countersigned by a duly authorized representative of this Company.' (Emphasis added.) It was in fact so countersigned, and there is nothing in the instrument as introduced in evidence to deprive the insured of the right to rely upon the terms of the policy as far the question of its taking effect is concerned." In this case the facts were these: On 6 March 1941, at about 7:00 o'clock p. m., Simons requested the local agent of the Indemnity Co. to cover his automobile with collision and other insurance, and deliver the policy to the Commercial Credit Corporation. The agent said he would cover plaintiff. About 10:00 a. m. on 7 March 1941 the agent issued and countersigned a collision policy covering plaintiff's automobile for a "Policy Period: From March 7, 1941 to March 7, 1942, 12:01 a. m. Standard Time * * *" At the time the agent issued and countersigned the policy, the agent did not know plaintiff had had a collision with his automobile about 1:30 a. m. on 7 March 1941. The court held that the Indemnity Co. was liable as plaintiff's damage occurred within the period covered by the policy.

Where a provision in a policy of insurance provides that it shall not be valid until countersigned by the company's agent, there is authority to the effect that this is a condition precedent to the validity of the policy. Burner v. American Ins. Co., 221 Mo.App. 1193, 300 S.W. 556; National Union Fire Ins. Co. v. California Cotton Credit Corp., 9 Cir., 1935, 76 F.2d 279. Webster's New Collegiate Dictionary, the latest edition of the Merriam-Webster series of dictionaries, defines Until as "up to the time that or when." The same authority defines Unless thus, "if not; supposing that not; except that." According to Webster's definitions, Until refers to time: Unless does not. American Jurisprudence discusses the meaning of the word Until in Vol. 52, Article Time, Sec. 25. See also: Annotation 16 A.L.R. 1090.

This action is upon the Certificate of Insurance as written. The Certificate of Insurance plainly states that it is "subject to the limits of liability, exclusions, conditions and other terms of the Master Policy." The Master Policy explicitly states that the insurance issued upon plaintiff's automobile attached "as of the time of execution of the conditional sale, mortgage or lien agreement, but only if reported to this Company within thirty (30) days thereafter." The conditional sale agreement was executed on 16 August 1952, and the Certificate of Insurance was countersigned, issued and delivered to plaintiff within 30 days after 16 August 1952. There is nothing in the language of the Certificate of Insurance here that the period of coverage will be extended by a delayed countersigning. It seems clear and plain from these provisions that it was the intention of the Insurance Co. to assume liability before the Certificate of Insurance was countersigned. Appleman, Insurance Law and Practice, Vol. 7, Sec. 4266, states: "An insurer has the right to assume obligations antedating the policy date, if it so elects and the contract is founded on a consideration. Under such circumstances, the insurer is liable for losses antedating the policy, provided there is no fraud or concealment by the insured." The countersigning had to do with the authenticity of the Certificate of Insurance rather than with the inception of the risk: it did not create an ambiguity as to the period of coverage. As was said by the South Dakota Supreme Court in Stratton v. United States Fire Ins. Co. of New York, 71 S.D. 422, 25 N.W.2d 239, 240: "We cannot disregard the plain and unequivocal terms of the policy, and make a new contract for the parties."

In the case here the Certificate of Insurance in the plaintiff's possession explicitly and plainly states that the expiration date was at 12:01 a. m., 16 February 1954. It expired on that date according to its terms. Union Marine & General Ins. Co. v. Holmes, supra; Dillon v. General Exchange Ins. Corporation, supra; McKee v. Continental Ins. Co., supra; Simons v. American Fire Underwriters of American Indemnity Co., supra; Oklahoma Farm Bureau Mut. Ins. Co. v. Brown, supra; Dohlin v. Dwelling House Mut. Ins. Co., 122 Neb. 47, 238 N.W. 921; Appleman, Insurance Law and Practice, Sec. 4268; Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 3541; Annotation 22 A.L.R. 2d 984. See also: Boone v. Standard Accident Ins. Co. of Detroit, 192 Va. 672, 66 S.E.2d 530; Gulledge v. World Ins. Co. of Omaha, 8 Cir., 199 F.2d 158, 35 A.L.R. 2d 791.

It may not be amiss to refer to the Form of the Standard Fire Insurance Policy in this State. G.S. § 58-176 sets forth a standard form for a fire insurance policy. At the end of the form there is this language: "In Witness Whereof, this Company has executed and attested these presents; but this policy shall not be valid unless countersigned by the duly authorized Agent of this Company at the agency hereinbefore mentioned." G.S. § 58-177 (d) provides: "Binders or other contracts for temporary insurance may be made, orally or in writing, for a period which shall not exceed 60 days * * *." It would seem that the North Carolina Standard Fire Policy means that the inception of the risk is not delayed until the policy is countersigned. See Lea v. Atlantic Fire Ins. Co., 168 N.C. 478, 84 S.E. 813.

The plaintiff cites in his brief in support of his argument Cheek v. Pilot Life Insurance Co., 215 N.C. 36, 1 S.E.2d 115; Turlington v. Metropolitan Life Insurance Co., 193 N.C. 481, 137 S.E. 422; Ross v. New York Life Insurance Co., 124 N.C. 395, 32 S.E. 733; Ormond v. Fidelity Life Association, 96 N.C. 158, 1 S.E. 796. Those cases dealt with provisions in insurance policies fundamentally different from the one here. For instance, in the Cheek case the consummation of the contract of insurance depended upon the approval of the home office.

The plaintiff contends that there was no meeting of the minds and the contract did not come into existence until the Certificate was countersigned. To agree with that argument would require us to ignore the provision that the insurance attached "as of the time of execution of the conditional sale * * * agreement, but only if reported to this company within thirty (30) days thereafter."

For the reasons stated above, the judgment of the Trial Court is

Reversed.

BARNHILL, C. J., took no part in the consideration or decision of this case.