Fineberg v. State Farm Fire & Casualty Co. , 113 N.C. App. 545 ( 1994 )

438 S.E.2d 754 (1994)

Irving FINEBERG, Plaintiff,
v.
STATE FARM FIRE AND CASUALTY CO., Defendant.

No. 9315SC164.

Court of Appeals of North Carolina.

February 1, 1994.

Steven Klein, La Jolla, CA, for plaintiff appellant.

Yates, McLamb & Weyher, by R. Scott Brown and O. Craig Tierney, Jr., Raleigh, for defendant appellee.

ARNOLD, Chief Judge.

The sole question presented by plaintiff's appeal is whether the trial court erred in granting summary judgment in favor of the defendant. The trial court granted summary judgment on the basis that plaintiff failed to comply with all conditions precedent under his insurance policy in failing to submit to an examination under oath. The trial court relied in part on this Court's opinion in Baker v. Independent Fire Insurance Company, 103 N.C.App. 521, 405 S.E.2d 778 (1991), in making its determination. In Baker, the insured's case against the insurer was dismissed because the insured failed to submit to an examination under oath, as required by policy terms. This Court affirmed the dismissal, noting that plaintiff had failed to comply with a condition precedent of the policy.

Like the policy in Baker, defendant's policy requires the insured to submit to an examination under oath. In addition, compliance with all policy requirements is a condition precedent to bringing suit against the insurer under the policy. Compliance with a condition in a fire insurance policy, such as the examination under oath provision, has "been held to be a condition precedent to suing on a fire policy." Baker, 103 N.C.App. at 522, 405 S.E.2d at 778. The objective of this particular provision is "to enable the insurance company to obtain information to determine the extent of its obligation and to protect itself from false claims." Chavis v. State Farm Fire and Casualty Co., 79 N.C.App. 213, 215, 338 S.E.2d 787, 789, rev'd on other grounds, 317 N.C. 683, 346 S.E.2d 496 (1986). Moreover, failure to comply with these conditions precedent bars recovery as well as the right to bring suit under the policy. See 5A John A. Appleman and Jean Appleman, Insurance Law and Practice § 3549 (1970 & Supp.1993) (citing jurisdictions which hold that failure to submit to an examination under oath constitutes material breach and is a defense to an action on the policy).

In this case, it is clear that plaintiff has failed to comply with a stated condition precedent. Plaintiff urges this Court, however, to create an exception to the mandatory nature of this condition and apply a good cause exception like that found in N.C.Gen.Stat. § 58-44-50 (1991). G.S. § 58-44-50 excuses untimely filing of proof of loss, another condition precedent, where good cause is shown. We decline to create such an exception, believing instead that the legislature's enactment of that specific exception indicates an intent to limit the general proliferation of exceptions in this area.

We also disagree with plaintiff's contention that this case is closer to Lee v. State Farm Fire and Casualty Company, 70 N.C.App. 575, 320 S.E.2d 413 (1984), than Baker. In Lee, this Court reversed the trial court's summary judgment order after finding that genuine issues of fact existed regarding whether plaintiff did in fact comply with the conditions precedent of the fire insurance policy. Unlike Lee, it is clear plaintiff did not comply with the condition and that plaintiff only seeks relief from the mandatory nature of the condition. Furthermore, in Lee this Court stated that "[s]ince the insurance policy clearly requires compliance with all of its requirements in order for plaintiff to maintain this action, plaintiff's failure to comply with any one of the conditions ... as a matter of law would be sufficient grounds for upholding the order." Id. at 578, 320 S.E.2d at 415.

Finally, we are not persuaded by plaintiff's arguments that the first recorded investigative interview constituted an examination under oath for purposes of compliance. See 5A Appleman, supra § 3549 (stating that an insured's recorded statements not given under oath are insufficient to meet the examination under oath requirement).

Accordingly, the order of the trial court is affirmed.

Affirmed.

WELLS and EAGLES, JJ., concur.