Opinion
No. COA09-1157
Filed 15 February 2011 This case not for publication
Appeal by plaintiff from order entered 18 June 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 11 February 2010.
Baker Slaughter, P.A., by M. Troy Slaughter, for plaintiff-appellant. Robinson Elliott Smith, by William C. Robinson and Katherine A. Tenfelde, for defendant-appellee Nationwide Mutual Insurance Company. Twiggs, Beskind, Strickland Rabenau, P.A., by Jerome P. Trehy, Jr., for Amicus Curiae N.C. Advocates for Justice.
Brunswick County No. 08 CVS 3068.
Plaintiff Ortho Hart, Jr. ("Mr. Hart") appeals from an order denying his motion for summary judgment and granting defendant Nationwide Mutual Insurance Company's motion for summary judgment. Mr. Hart filed a declaratory judgment action in his capacity as the administrator of the estate of his adult son, Arthur Bentley Hart ("Arthur"), who was an insured under Mr. Hart's policy. Mr. Hart alleged that he was never provided an opportunity, as required by law, to increase his uninsured or underinsured motorist ("UM/UIM") coverage to $1 million, and that he was, therefore, entitled to $1 million coverage following a motor vehicle accident in which Arthur was killed. Nationwide, however, contends that because it did, in fact, give Mr. Hart an opportunity to increase his UM/UIM coverage, but Mr. Hart did not do so, UM/UIM coverage was subject to the same limits as Mr. Hart's liability coverage.
Based on our review of the record, Nationwide presented affirmative evidence that it sent Mr. Hart enclosures with his insurance renewal notices providing him with opportunities to increase his UM/UIM coverage, that these mailings were sent to Mr. Hart's proper address, that they were not returned, and that Mr. Hart acknowledged always receiving his renewal notices. Mr. Hart did not produce any evidence showing that Nationwide had not in fact sent these mailings, that Nationwide had not included the enclosures regarding UM/UIM coverage with the renewal mailings, or that he did not receive them. Because there was no material conflict in the evidence, the trial court did not err in denying Mr. Hart's motion and granting summary judgment in favor of Nationwide.
Facts
On 11 October 2008, Arthur was killed in a head-on collision with defendant Omar Perez. At the time, Arthur was driving a car owned and insured by Mr. Hart under a policy issued by Nationwide. The policy had a UM/UIM coverage limit of $50,000.00 per person and $100,000.00 per accident ("$50,000/$100,000"). Arthur, who lived with his father, was an insured driver under the policy.
Mr. Perez is not a party to this appeal.
On 2 December 2008, Mr. Hart, in his capacity as administrator of Arthur's estate, filed an action asserting wrongful death claims against Mr. Perez and seeking a declaratory judgment as to Nationwide. Specifically, the complaint sought, with respect to Nationwide, a declaration that (1) Arthur was an insured under the policy and (2) there was a $1 million limit for UM/UIM coverage, pursuant to N.C. Gen. Stat. § 20-279.21(b) (2007) — part of the Motor Vehicle Safety and Financial Responsibility Act of 1953 ("the Act") — because Nationwide never gave Mr. Hart an opportunity to purchase up to $1 million in UM/UIM coverage. A consent order bifurcating the wrongful death and declaratory judgment claims was entered on 13 February 2009.
Nationwide filed a motion for summary judgment in the declaratory judgment action on 21 May 2009. Subsequently, on 3 June 2009, Mr. Hart filed a motion for summary judgment against Nationwide. The motions were heard on 16 June 2009, and the court received affidavits, exhibits, and depositions from both parties.
Mr. Hart's evidence tended to show the following. Mr. Hart cannot read or write. Until the death of his wife Charlotte in 2007, he relied on her to handle the family's mail and financial affairs, including the checkbook, insurance, and renewal notices for the family's automobile insurance. When automobile insurance renewal notices came in the mail, Mrs. Hart gave the notices to Mr. Hart, and he paid the bills in person twice a year at the local Nationwide agency in Southport ("the agency"). Mr. Hart paid his bills in this manner for approximately 57 years. After Mrs. Hart's death, Arthur assumed responsibility for the household finances and gave Mr. Hart the renewal notices. Mr. Hart continued to pay the bills in the same manner as before and was well-known by the agency's employees.
As long as Mr. Hart had the policy, he never signed a North Carolina Rate Bureau promulgated UM/UIM selection/rejection form. He could not recall ever having seen a UM/UIM selection/rejection form. He did not recall receiving any mail from Nationwide in the early 1980s, in 1991, or in 2007 urging him to increase his UM/UIM policy limit. Neither his wife nor his son ever read to him or told him that he had received any offer from Nationwide to purchase additional UM/UIM coverage. In addition, during Mr. Hart's visits to the Nationwide agency, no one ever verbally offered him the opportunity to purchase UM/UIM coverage of up to $1 million.
Nationwide, on the other hand, presented evidence tending to show the following. In 1982, Nationwide sent a letter to Mr. Hart urging him to consider increasing his property damage, bodily injury liability, and UM/UIM coverage to $50,000/$100,000. Mr. Hart did not purchase the additional coverage. In 1985, however, Mr. Hart did increase his coverage to $50,000/$100,000 for both liability and UM coverage, which later became UM/UIM coverage.
In 1991 and early 1992, Nationwide implemented a protocol to respond to recent amendments to the Act. Prior to 1991, an insured could not purchase UIM coverage with limits greater than the policy's bodily injury liability limits. The Act was amended in 1991 to "allow an insured to select UIM coverage `in an amount not to be less than the financial responsibility amounts for bodily injury liability . . . nor greater than one million dollars'" and "created a significant new choice for insureds regarding their options for UIM coverage. Instead of offering only two choices, rejection of UIM coverage or UIM coverage at the same limits as bodily injury liability coverage, the statute, as amended, permits insureds to select any UIM coverage limit from $25,000 to $1,000,000." State Farm Mut. Auto. Ins. Co. v. Fortin, 350 N.C. 264, 267, 513 S.E.2d 782, 783 (1999) (quoting N.C. Gen. Stat. § 20-279.21(b)(4) (1993 Supp. 1998)).
From November 1991 to May 1992, Nationwide inserted a "stuffer" in its renewal billing mailings that included an additional information sheet advising policyholders that they now had the option to select combined UM/UIM coverage at variable limits up to $1 million. The stuffer also included a North Carolina Rate Bureau promulgated selection/rejection form. As part of this mailing program, Nationwide mailed to Mr. Hart with his renewal an offer for him to purchase UM/UIM coverage in an amount exceeding his liability limits up to $1 million. This mailing contained the selection/rejection form.
In 2007, Nationwide again sent a mailing to all policyholders with renewals dated on or after 26 August 2007 providing them with another opportunity to purchase up to $1 million UM/UIM coverage. As part of this initiative, Nationwide sent its customers an information sheet and another copy of the selection/rejection form. Nationwide sent the stuffer with the selection/rejection form in Mr. Hart's renewal packet. Mr. Hart always received his Nationwide mail at his home address, he always received his renewal notices, and he always paid his bills on time.
Following the hearing, the trial court entered an order on 18 June 2009 granting Nationwide's motion for summary judgment in the declaratory judgment action and denying Mr. Hart's motion for summary judgment. The order decreed that Nationwide provide $50,000/$100,000 UM/UIM coverage pursuant to Mr. Hart's policy. Mr. Hart timely appealed to this Court.
Discussion
There is no dispute that Mr. Hart's son, Arthur, was an insured driver under Mr. Hart's policy and that there is UIM coverage. It is also undisputed that Nationwide did not obtain from Mr. Hart a signed North Carolina Rate Bureau promulgated selection/rejection form. The question presented by Mr. Hart's declaratory judgment action is: To what UM/UIM coverage limits is Mr. Hart entitled given Nationwide's failure to obtain a signed selection/rejection form? Mr. Hart contends that because Nationwide did not give him an opportunity to select higher coverage, he is entitled to $1 million in coverage, while Nationwide contends that he is limited to the same levels as the liability coverage: $50,000/$100,000.
In 1992, the General Assembly amended the Act to provide that "[i]f the named insured does not reject underinsured motorist coverage and does not select different coverage limits, the amount of underinsured motorist coverage shall be equal to the highest limit of bodily injury liability coverage for any one vehicle in the policy." 1991 N.C. Sess. Laws ch. 837 § 9 (amending N.C. Gen. Stat. § 20-279.21(b)(4)). Our Supreme Court addressed the 1992 amendment in Fortin, 350 N.C. at 271, 513 S.E.2d at 786, holding that when an insurer did not obtain a valid selection or rejection of UIM coverage, the insured — because of the 1992 amendment — was entitled to UIM coverage equal to the highest limit of bodily injury liability coverage. Nationwide, in this case, points to Fortin as supporting its position.
Mr. Hart's argument arises out of Williams v. Nationwide Mut. Ins. Co., 174 N.C. App. 601, 621 S.E.2d 644 (2005), disc. review improvidently allowed, 360 N.C. 586, 634 S.E.2d 887 (2006). In Williams, the parties had stipulated that the insurance carrier had never offered the insured any opportunity to either reject UIM coverage or select different UIM coverage limits. Id. at 603, 621 S.E.2d at 645-46. This Court held that when a carrier totally failed to allow the insured to choose policy benefits as required by the Act, the UIM coverage limits enacted through the 1992 amendment and applied in Fortin did not apply:
A total failure on the part of the insurer to provide an opportunity to reject UIM coverage or select different UIM policy limits violates the requirement that these choices be made by the policy owner. Such a failure should not invoke the minimum UIM coverage limits established in N.C.G.S. § 20-279.21(b)(4) and shield the insurer from additional liability. So doing would violate the purpose of the statute to protect the insured and allow them to choose their policy benefits.
Williams, 174 N.C. App. at 605-06, 621 S.E.2d at 647. Instead, taking into account the remedial nature of the automobile insurance statutes, this Court determined that the policy provided UIM coverage with limits of $1,000,000 per person and $1,000,000 per accident, the maximum amount permitted by the Act. Id. at 606, 621 S.E.2d at 647.
Following Williams, the question remained regarding when the rule in Fortin applied and when the rule in Williams applied. In Nationwide Mut. Ins. Co. v. Burgdoff, ___ N.C. App. ___, ___, 698 S.E.2d 500, 503 (2010), this Court clarified that Williams does not come into play simply "whenever" a carrier fails to obtain a signed selection/rejection form from an insured. Rather, Williams controls only when "the insured was not provided with any opportunity at all to even consider UIM coverage." Burgdoff, ___ N.C. App. at ___, 698 S.E.2d at 503.
Consequently, the "dispositive issue" on summary judgment when an insurance carrier does not have a signed selection/rejection form "is whether there is a genuine issue of material fact as to `whether [the insured was] given the opportunity to reject or select different UIM coverage limits.'" N.C. Farm Bureau Mut. Ins. Co. v. Jenkins, ___ N.C. App. ___, ___, 700 S.E.2d 434, 438 (2010) (quoting Burgdoff, ___ N.C. App. at ___, 698 S.E.2d at 503)). If Nationwide did not give Mr. Hart an opportunity to increase his UM/UIM coverage to $1 million, then Mr. Hart is entitled to up to $1 million coverage under Williams. On the other hand, if Nationwide did give Mr. Hart the opportunity, then Mr. Hart is limited to the $50,000/$100,000 UM/UIM coverage under his policy, consistent with Fortin.
Mr. Hart first contends that the evidence that Nationwide submitted in opposition to his motion for summary judgment and in support of its own summary judgment motion — a series of affidavits — constituted inadmissible hearsay. He then argues that since Nationwide did not present any competent evidence in opposition to his motion, the trial court should have granted summary judgment in his favor.
Nationwide does not dispute that Mr. Hart objected to the affidavits on the grounds of hearsay before the trial court, but argues that the issue is not preserved under Rule 10 of the Rules of Appellate Procedure because Mr. Hart did not obtain a ruling on his objection. The version of the North Carolina Rules of Appellate Procedure applicable to this appeal provided in Rule 10(b)(1) (emphasis added): "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion." Nationwide insists that because Mr. Hart did not request a ruling from the trial court on his objection to the affidavits, the issue of the admissibility of the affidavits is not properly before this Court.
Under the recently amended Rules of Appellate Procedure, the former Rule 10(b) is now Rule 10(a). Because Mr. Hart filed his notice of appeal prior to 1 October 2009, the effective date of the amended rules, we refer to Rule 10(b). The substance of the amended rule is not, however, materially different from that of the former rule.
We note that it is common practice for trial judges to direct the prevailing party — in this case, Nationwide — to prepare the order, and most summary judgment orders are perfunctory in nature. Under Nationwide's position, appeal of evidentiary issues could be precluded simply by the prevailing party's following the traditional practice of submitting bare-bones orders granting summary judgment.
Nevertheless, we are bound by prior decisions of this Court applying Rule 10(b)(1) of the Rules of Appellate Procedure. See, e.g., Gilreath v. N.C. Dep't of Health Human Servs., 177 N.C. App. 499, 501, 629 S.E.2d 293, 294 (holding employee failed to preserve for appellate review claim that trial court erred in not granting her motion to strike several paragraphs from affidavits submitted in support of motion for summary judgment filed by defendant, where employee failed to obtain ruling on her motion to strike), disc. review denied and cert. denied, 360 N.C. 576, 635 S.E.2d 595, aff'd per curiam, 361 N.C. 109, 637 S.E.2d 537 (2006); Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 738, 594 S.E.2d 227, 230 (2004) (holding Court was unable to review issue concerning admission of affidavits since there was nothing in record indicating trial court's ruling on plaintiff's objection and motion to strike). In light of these decisions, parties with objections as to the admissibility of evidence submitted in connection with a summary judgment motion must specifically request on the record that the trial court include, in the summary judgment order, a ruling on the evidentiary issue.
Even if the issue were properly preserved, we would hold that while portions of the affidavits should have been excluded because the witness lacked personal knowledge of the material, most of the information was within the various witnesses' personal knowledge and was admissible under Rule 406 of the Rules of Evidence. We note that even on appeal, Mr. Hart has failed to identify specifically which portions of the affidavits he is contesting, but rather challenges the affidavits collectively. We, therefore, specifically address only the portions of the affidavits that are most important to Nationwide's showing.
See N.C.R. Civ. P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge. . . .").
Rule 406 provides in part that evidence "of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the . . . organization on a particular occasion was in conformity with the habit or routine practice." In Barber v. Babcock Wilcox Constr. Co., 98 N.C. App. 203, 207, 390 S.E.2d 341, 343 (1990), disc. review allowed, 328 N.C. 569, 403 S.E.2d 506 (1991), this Court held that under Rule 406, an employer's corporate safety specialist was competent to testify concerning the routine practice of the employer in removing asbestos from a job site, notwithstanding that the specialist was not actually present at the job site where the removal at issue occurred.
Here, in one of the affidavits, Ted Salisbury, an employee in Nationwide's underwriting department since 1978, stated that he was "personally familiar with the custom, habit and business practice of Nationwide back in 1991 and early 1992 in connection with complying with the amendments to N.C.G.S. § 20-279.21, specifically, relating to notification to policyholders of the availability of increased [UM/UIM] coverage up to and including limits of $1 million." According to Mr. Salisbury, this process included mailing a stuffer with every renewal billing packet for a six-month renewal cycle between 5 November 1991 and 4 May 1992. Mr. Hart's policy renewed in January 1992 and, therefore, was included within this mailing program. The stuffer was composed of (1) an informational page that explained to policyholders that UM/UIM coverage of up to $1 million was available and set out the policyholders' options and (2) the North Carolina Rate Bureau promulgated selection/rejection form.
In another affidavit, Sandra Gullie, who was a utility clerk in Nationwide's distribution area of the Raleigh, North Carolina, office in 1991 and 1992, explained that she participated in Nationwide's 1991-1992 mass mailing initiative in which Nationwide sent all of its policyholders the stuffer with information about new UM/UIM options and a selection/rejection form. Although Ms. Gullie had no independent knowledge about that particular mailing project or the contents of the mailing, she did have personal knowledge about the business custom, routine, and habit of Nationwide with regard to sending all billing, declarations pages, endorsements, and other communications to policyholders in that time period. Ms. Gullie described in detail this practice in her affidavit, explaining how documents were "carefully and accurately" generated, compiled into renewal packets, checked to make sure each packet included all necessary forms, packaged, and mailed. According to Ms. Gullie, the 1991-1992 UM/UIM stuffer was mailed "using the same practices to insure accuracy."
Nationwide also submitted the affidavit of Chas McCarthy, a Senior Consultant for NSC Document Solutions who "work[s] with Nationwide to ensure that mailings to customers such as renewals, warning letters and special projects are properly stuffed, addressed, postmarked and delivered to the post office with proper mailing addresses and information." Mr. McCarthy attached to his affidavit the memo adopted by Nationwide Services Company Document Solutions setting out corporate mail procedures for renewals generally, and, in the affidavit, he described the specific mailing procedures followed by Nationwide from August 2007 through 31 December 2008 when Nationwide included in all renewal packets another stuffer regarding UIM coverage, consisting of an information sheet explaining the availability of up to $1 million in UIM coverage and also the approved selection/rejection form.
In addition, Mr. McCarthy explained that the mailing procedures for the 2007 stuffers were the same for all North Carolina automobile renewals. The stuffers and renewal documents were printed "in-line," meaning that the stuffer information was printed with the renewal packets to insure that each renewal received the appropriate stuffer, rather than going through a separate process. The renewal documents, including the stuffers, were then inserted into an envelope at which point postage was affixed by a postage meter. The envelopes were then placed in marked bins and delivered to the post office. The envelopes included a return address for the insured's agent. Mr. McCarthy further stated that a failure to deliver a bin to the post office would lead to massive billing confusion, lack of proper premium retention, confusion for the Department of Motor Vehicles, and customer complaints. No such issues arose from the mailings.
These portions of the Salisbury, Gullie, and McCarthy affidavits portray the routine business practice Nationwide followed when doing mailings to policyholders in 1991 to 1992 and in 2007, particularly with respect to stuffers sent with renewals to notify policyholders of the availability of increased UM/UIM coverage. The affidavits satisfied the requirements of Rule 406 and, consistent with Barber, were admissible. See also State Farm Mut. Auto. Ins. Co. v. Ash, 181 Ariz. 167, 174, 888 P.2d 1354, 1361 (Ariz. Ct. App. 1994) ("State Farm presented evidence concerning the computer-mechanized method by which it sent policy renewal notices and explanatory brochures to its policyholders in 1981-82. This evidence was relevant and admissible pursuant to Rule 406, Arizona Rules of Evidence.").
Furthermore, the material portions of Andy Hall's affidavit, which addressed the 2007 mailing, were also admissible. Not only did Mr. Hall state in his affidavit that he is "familiar with Nationwide's usual and customary business practices of mailing letters to Nationwide policyholders," but he also described his "direct involvement" in the 12 December 2007 mailing of renewal documents to Mr. Hart. Mr. Hall "personally checked and verified the accuracy" of Mr. Hart's mailing — that mailing included a selection/rejection form. Mr. Hall also verified that Mr. Hart's parcel was properly addressed, stuffed, metered, and delivered for mailing. Because these statements are based on his personal knowledge, they were admissible as evidence that Nationwide sent Mr. Hart a selection/rejection form in 2007.
Mr. Hall's statements in his affidavit were also admissible under the business records exception to the hearsay rule. Rule 803(6) of the Rules of Evidence provides a hearsay exception for
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Knowledge obtained from the review of records falling within Rule 803(6) constitutes "personal knowledge" within the meaning of Rule 56(e). Gilreath, 177 N.C. App. at 503-04, 629 S.E.2d at 296. In his affidavit, Mr. Hall established that he had reviewed corporate documents kept in the ordinary course of business by Nationwide. Attached to his affidavit was a job ticket corresponding to Mr. Hart's mailing, which was recorded contemporaneously with the mailing to Nationwide customers and which was a record kept as part of the usual and customary business practices for Nationwide.
Mr. Hart next argues that even if Nationwide's affidavits were admissible, that evidence merely gave rise to an issue of fact regarding whether he was given an opportunity to select higher UM/UIM limits. We disagree.
In addition to Nationwide's evidence that it mailed Mr. Hart informational sheets and the North Carolina Rate Bureau promulgated selection/rejection forms with the renewal packets and that the renewal package was apparently delivered to Mr. Hart, Nationwide presented additional evidence from Mr. Hart's insurance agency tending to show that Mr. Hart actually received the mailings. Doyle Dennis, the owner of the agency, stated in his affidavit that Mr. Hart never complained of not receiving the renewal packages that were involved in the mailings of the UM/UIM stuffers. Dixie Jackson, an agency employee, also stated in her affidavit that Mr. Hart never complained of not receiving his mailings from
Nationwide, such as renewals and billing. These statements reflect Mr. Dennis' and Ms. Jackson's personal knowledge as to what Mr. Hart did or did not tell them and were, therefore, admissible.
Nationwide has also pointed to Mr. Hart's own deposition as suggesting that he received the mailings. Mr. Hart testified that he was never late in paying for the renewal of his policy — he always received Nationwide mail on time, received all renewal notices, and paid the renewals as soon as they arrived. He gave the inserts in the bill to his wife to read — if she wasn't interested in them or thought he would not be interested, she "[p]robably" threw the inserts away. When asked whether he or his wife spoke to anyone from Nationwide over the phone or at the agency after they received the letters with the selection/rejection forms, Mr. Hart responded, "Well, I don't know if we ever got any, so I couldn't answer that." He then testified that he did not "remember specifically getting it," but when asked whether he "can't say [he] didn't get it," he answered, "I can't. . . . I just don't know."
In arguing that an issue of fact still remains regarding whether Nationwide failed to give him an opportunity to increase his UM/UIM coverage, Mr. Hart points to the affidavit he filed after his deposition. He first highlights the fact that, when he went to the agency, no one at the agency ever verbally notified him about an opportunity to increase his UM/UIM coverage. There is, however, no requirement that the opportunity be given orally. Nationwide Prop. Cas. Ins. Co. v. Martinson, ___ N.C. App. ___, ___ n. 3, 701 S.E.2d 390, 398 n. 3 (2010) (holding that lack of verbal notification did not preclude summary judgment when policyholder was mailed notification because "[t]he Court in Burgdoff did not create a requirement that an insured [be] verbally informed of UM/UIM coverage limits" when Burgdoff concluded that verbal notification was sufficient).
Mr. Hart also points to the fact, asserted in the affidavit, that neither his wife nor his son ever read him any offer to increase his UM/UIM coverage or told him that such an offer came in the mail. Mr. Hart argues in his brief that "[i]t stands to reason" that if such information had been sent by Nationwide, his wife and son would have told him. Further, he argues in his brief, his wife and his son "were both fully aware that Mr. Hart paid the bill in person and arguably, they would have informed Mr. Hart of this information for him to discuss during his twice-a-year visits to the Nationwide office." There is, however, no testimony by Mr. Hart to support these assertions by counsel in the brief. Moreover, they are inconsistent with Mr. Hart's deposition testimony that his wife would not have told him about such information if she thought he would not be interested.
Finally, Mr. Hart contends that "[t]he evidence in this matter indicates that Mr. Hart was never made aware of such an offer." That assertion is beside the point. It does not establish that Nationwide did not give him an opportunity by mailing the insert in his renewal package or that he did not receive the insert. As he acknowledged in his deposition, he could well have received the insert, but his wife and son did not tell him about it. If Mr. Hart received the notice but did not read it or have it read to him, there was not a total failure to provide him with an opportunity to select higher limits.
In sum, Nationwide presented admissible evidence that, on two occasions, it mailed Mr. Hart information about the opportunity to select or reject higher coverage and that this information was likely received. With respect to the 2007 mailing, Nationwide presented evidence specifically related to Mr. Hart — that the insert was included in his renewal packet and that the mailing was sent to Mr. Hart's proper address. Nationwide also presented evidence that the mailings to Mr. Hart were received — they were not returned as undeliverable by the U.S. Postal Service, and Mr. Hart confirmed that he always received his renewal notices on time from Nationwide. Upon receiving the renewal notice, Mr. Hart would pay the renewal, and he had never been late, indicating that he had always received the renewal notices. Mr. Hart did not present any evidence that he did not in fact receive the notices. He admitted that he did not know whether he had received the notices and only presented evidence that neither his wife nor his son ever notified him about the notices. This evidence is not sufficient to give rise to an issue of fact as to whether Nationwide provided him an opportunity to increase his UM/UIM coverage.
Our conclusion in this case is supported by Martinson, which involved substantially similar circumstances. In Martinson, an operations manager at the local Nationwide agency was responsible for printing the insured's insurance application and selection/rejection forms. ___ N.C. App. at ___, 701 S.E.2d at 392. After the materials were printed, she checked to make sure the forms were in order, applied the proper postage, addressed the envelope to the insured's address, and placed the envelope in the mailbox. Id. at ___, 701 S.E.2d at 392. The envelope, which had a return address label, was never returned to the local agency. Id. at ___, 701 S.E.2d at 392.
In opposition to this evidence, the insured pointed to his wife's testimony that she and her husband were "very tidy" and handled their mail according to a regular routine. Id. at ___, 701 S.E.2d at 397. When asked how she knew that they never received the relevant envelope, she responded: "`Because I didn't see — because I don't ever remember receiving this.'" Id. at ___, 701 S.E.2d at 397. This Court held that these assertions "pertain[ed] to her receipt of the envelope, not whether it was actually sent." Id. at ___, 701 S.E.2d at 397-98.
The evidence that the selection/rejection form was mailed "prevent[ed the Court] from holding that a total failure to inform occurred. . . . Though [the insured's wife] claims that neither she nor her husband received the form, there is no evidence to contradict Nationwide's assertion that it was mailed. . . ." Id. at ___, 701 S.E.2d at 397. Consequently, the Court affirmed the order granting summary judgment for Nationwide and denying summary judgment for the insured. Id. at ___, 701 S.E.2d at 399. See also Ash, 181 Ariz. at 174, 888 P.2d at 1361 (holding that summary judgment was properly entered for carrier when carrier presented routine business practice evidence that written offer to increase UIM limits was sent to policyholder with renewal packet and evidence that policyholder paid all renewal premiums, while only opposing evidence was fact policyholder did not recall receiving offer: "[f]ailure to remember an alleged event supported by evidence of routine practice is not sufficient to raise a fact issue precluding summary judgment").
The evidence in this case is not comparable to that found sufficient to give rise to an issue of fact in Burgdoff. In Burgdoff, the carrier, in arguing that there was not a total failure to give the policyholder an opportunity to increase UIM coverage, relied solely on a conversation between the agent and the insured. The agent had testified that she told the insured about the opportunity in a specific conversation, but the insured testified that the subject was not discussed in that conversation. ___ N.C. App. at ___, 698 S.E.2d at 504. Because of this conflict in the evidence, the Court held that summary judgment was inappropriate. Id. at ___, 698 S.E.2d at 504.
Here, since there was no material conflict in the evidence, the trial court properly denied summary judgment for Mr. Hart and granted summary judgment for Nationwide. See N.C.R. Civ. P. 56(e) (noting party moving for summary judgment "must set forth specific facts showing that there is a genuine issue for trial"). We, therefore, affirm.
Affirmed.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).