Opinion
No. 79
Filed 12 January 1982
BEFORE Judge Preston presiding at the 9 June 1980 Session of WAKE Superior Court plaintiff moved for summary judgment. Judge Preston allowed the motion, and the Court of Appeals affirmed in an opinion by Judge Webb in which Judges Hedrick and Hill concurred. 51 N.C. App. 447, 276 S.E.2d 469 (1981). We allowed defendant's petition for further review on 9 July 1981.
Young, Moore, Henderson Alvis, by Walter Brock Jr., Attorney for plaintiff-appellees.
Franklin Smith, Attorney for defendant appellant.
This is an action to recover $10,340 paid by plaintiff to defendant on a crop hail insurance policy on the ground that coverage under the policy had been suspended at the time of the loss because defendant breached the "other insurance" clause in the policy.
The clause provides: "OTHER INSURANCE It is hereby agreed that if other insurance is written on the insured interest in the above described crops this Company will be notified in writing of the amounts of such other insurance, including Federal Crop Insurance Corporation Coverage. It is further agreed that unless or until so notified of such other insurance the coverage under this policy shall be suspended."
The facts are not in dispute. Plaintiff issued its policy to become effective on 21 May 1978. Thereafter defendant applied for and was issued a second crop hail insurance policy by another insurer to become effective on 8 June 1978 on a portion of the same crop insured by plaintiff. Defendant did not give notice to plaintiff of this second policy. The hail loss occurred on 9 July 1978. Defendant filed proofs of loss with both insurers. In answer to a question on plaintiffs' proof of loss form defendant asserted that he had no other crop hail insurance on the crop in question except that provided by the "Federal Government." Plaintiff paid defendant $10,340 for his loss. Thereafter plaintiff discovered the second crop hail insurance policy and brought this action to recover what it had paid under its policy.
Apparently the second insurer has also repudiated its policy, but the reason does not clearly appear in the record.
After reviewing the record and briefs, and hearing oral arguments on the questions presented, we conclude that the petition for further review was improvidently granted. Our order granting further review is, therefore, vacated. The decision of the Court of Appeals affirming the judgment of Wake Superior Court remains undisturbed and in full force and effect.
Discretionary review improvidently granted.