American Mutual Liability Insurance v. Watson Seafood & Poultry Co.

MALLARD, Chief Judge.

Plaintiff contends that the trial court committed error in ruling that the “Retrospective Rating Plan” contained no provision for rate adjustment where the cancellation is by the insurer for reasons other than non-payment of premium.

In the pre-trial stipulations the parties agreed that on each of the policies there was an endorsement known as “Retrospective Premium Endorsement-Three Year-Plan D.” Although it is asserted that this endorsement was attached to the stipulations, it does not appear in this record; therefore, we do not know the contents of this stipulation. There was no stipulation relating to the “Retrospective Rating Plan,” about which plaintiff argues. “Stipulations duly made during the course of a trial constitute judicial admissions binding on the parties and dispensing with the necessity of proof, and unless limited as to time or application, such stipulations continue in force for the duration of the controversy. A party may not thereafter take an inconsistent position. * * *” 7 Strong, N. C. Index 2d, Trial, § 6. See also Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E. 2d 625 (1966).

It appears, however, that the trial judge construed the language contained in the “Retrospective Premium Endorsement-Three Year-Plan D” attached to and made a part of a copy of an insurance policy purporting to be a copy of #03-5. (There is no identifying mark to indicate that this instrument was introduced in evidence; however, it appears with the exhibits in this case.) The construction given it by the judge is supported by interpretations given to similar language by the Supreme Court of Colorado in the case of Travelers Ins. Co. v. Jeffries-Eaves, Inc., of Colo., 166 Colo. 220, 442 P. 2d 822 (1968), and by the Supreme Court of Minnesota in the case of Bituminous Casualty Corporation v. Swartout, 270 Minn. 216, 133 N.W. 2d 32 (1965). But inasmuch as we do not have the contents of the “Retrospective Premium Endorsement-Three Year-Plan D” (which was stipulated) before us, we are unable to know what its contents are; the questions plaintiff seeks to present concerning the “Retrospective Rating Plan” are not properly presented and are not decided.

There is a presumption in favor of the correctness of the judgment appealed from, and the burden is on an appellant to show prejudicial error. 1 Strong, N. C. Index 2d, Appeal and Error, § 46. After examining all assignments of error properly presented, we hold that plaintiff has not shown prejudicial error on this record.

Affirmed.

Judges Morris and Parker concur.