Tatham v. Liverpool, London & Globe Insurance
107 S.E. 450 · 181 N.C. 434 · 1921 N.C. LEXIS 97
June 3, 1921
Headnotes
Generated summaries- Headnote 1
Both policies contained a clause stating suit must be filed within twelve months after the fire. The loss occurred in June 1918 and suit was filed seventeen months later. Courts have repeatedly upheld similar time‑bars in fire‑insurance contracts.
- Headnote 2
Plaintiffs argued that the insurer’s agreement to an appraisal induced delay, but the record contained no unmistakable waiver of the contractual time‑limit.
- Headnote 3
The policies at issue contained the clause, “No suit … unless commenced within twelve months next after the fire,” which the court held to be enforceable as an express contractual term.
- Headnote 4
Both policies were issued under Chapter 109 of the North Carolina Public Laws, and the clause was described as “expressly prescribed and sanctioned by the statute law of the State then in force.”
- Headnote 5
The court required a waiver to be unmistakable; mere conduct or alleged inducement is insufficient, as reflected in Hayes v. Ins. Co.
- Headnote 6
The loss occurred on 1 June 1918, but suit was filed on 25 October 1919—nearly seventeen months later—clearly beyond the policy’s deadline and in violation of its terms.
- Headnote 7
The appellate court sustained the nonsuit judgment and affirmed the trial court’s dismissal of the claim.
Opinion
Tbe two policies in suit were issued under authority of chapter 109, Public Laws 1915. Each, contained, among other provisions; tbe following stipulation which was expressly prescribed and sanctioned by tbe statute law of tbe State then in force:
“No suit or action on this policy, for tbe recovery of any claim, shall be sustainable in any court of law or equity unless tbe insured shall have complied with all tbe requirements of this policy, nor unless commenced within twelve months next after tbe fire.”
Tbe loss occurred on 1 June, 1918, and suit was commenced 25 October, 1919, nearly seventeen months thereafter.. This was not in keeping with tbe terms of tbe policies as above set out. These contractual limitations and other substantially similar provisions have been upheld in a number of decisions. Holly v. Assur. Co., 170 N. C., 4; Muse v. Assur. Co., 108 N. C., 240; Lowe v. Accident Assn., 115 N. C., 18; Hovey v. Fidelity and Casualty Co., 200 Fed., 925; Modlin v. Ins. Co., 151 N. C., 35; Gerringer v. Ins. Co., 133 N. C., 414; Parker v. Ins. Co., 143. N. C., 339; Faulk v. Fraternal Mystic Circle, 171 N. C., 302.
In explanation of the delay in commencing snit within the time fixed by the policies, plaintiffs contend that they were induced to defer action on account of the defendant’s conduct in agreeing to an appraisal and award of damages, etc., but we are unable to find in the record any waiver or action not contemplated by the terms of the contracts of insurance. Hayes v. Ins. Co., 132 N. C., 702.
As now presented, and upon the record, we think the judgment of nonsuit should be sustained.
Affirmed.