F & D Co. v. Aetna Insurance , 53 N.C. App. 92 ( 1981 )

HEDRICK, Judge.

Plaintiffs sole assignment of error is set out in the record as follows:

That the Court erred in finding as a fact and concluding as a matter of law that this action was barred by a limitation period set forth in the policy of insurance, and further erred by entering Judgment based upon such finding and conclusions.

Plaintiff contends that because Paragraph 11(a) under “General Conditions” in the policy in question provides that actions by the insured against the insurer must be brought “within the twelve months next following the date of the physical loss or damage” giving rise to the action, the policy provides for a shorter period within which the insured can bring suit against the insurer than is permitted by G.S. § 58-31, and thus Paragraph 11(a) is void. We do not agree.

G.S. § 58-31 in pertinent part provides:

No company or order, domestic or foreign, authorized to do business in this State under this Chapter, may make any condition or stipulation in its insurance contracts concerning the court of jurisdiction wherein any suit or action thereon may be brought, nor may it limit the time within which such suit or action may be commenced to less than one year after the cause of action accrues .... All conditions and stipulations forbidden by this section are void. [Emphasis supplied.]

We are of the view that under the policy in question, a cause of action against the insurer would accrue at the time the physical loss or damage giving rise to the action occurred, and thus the limitation provision of the policy, Paragraph 11(a) under “General Conditions,” is not in conflict with G.S. § 58-31. Paragraph 8(a) under “General Conditions” requires that the insured give “immediate written notice” to the insurer in the event of an occurence which may render the insurer liable under the policy. Paragraph 10 under “General Conditions” merely requires that the insurer pay for a loss within thirty days after being given written proof of the loss and proof that the insured has an interest in the insured property; neither that paragraph nor any of the other provisions of the policy contain a requirement that the insured file a written proof of loss before the insured could recover on the policy. In addition, the policy provisions mention no waiting periods before the insured can bring suit against the insurer.

Our attention is drawn to the cases of Modlin v. Insurance Co., 151 N.C. 35, 65 S.E. 605 (1909); Heilig v. Insurance Co., 152 N.C. 358, 67 S.E. 927 (1910); Millinery Co. v. Insurance Co., 160 N.C. 130, 75 S.E. 944 (1912); and Meekins v. Insurance Co., 231 N.C. 452, 57 S.E. 2d 777 (1950), which purportedly stand for the proposition that a cause of action against the insurer for a loss under the policy does not accrue until the insurer has received written proof of loss and has refused to pay the loss. Without passing on the merits of this proposition, we simply note that these four cases are clearly distinguishable from the case at bar in that the insurance policies involved in those cases, unlike the policy in question here, contained provisions requiring that the insured submit a written proof of loss as a condition to recovery under the policy.

Since the parties stipulated that plaintiff did not commence this action until more than one year after the date of loss, we conclude that the trial court properly entered judgment for defendant and dismissed plaintiffs action on the basis that plaintiffs action was barred by Paragraph 11(a) under “General Conditions” of the policy in question. Plaintiffs assignment cf error cannot be sustained.

The judgment appealed from is

Affirmed.

Judge Martin (Harry C.) concurs. Judge Wells dissents.