James W. LATTA
v.
FARMERS COUNTY MUTUAL FIRE INSURANCE COMPANY.
No. 8311DC446.
Court of Appeals of North Carolina.
April 3, 1984.*215 Bain & Marshall by Edgar R. Bain, Lillington, for plaintiff.
Stewart & Hayes, P.A. by Gerald W. Hayes, Jr. and Joseph L. Tart, Dunn, for defendant.
WELLS, Judge.
Under N.C.Gen.Stat. § 1A-1, Rule 56(c) of the Rules of Civil Procedure, "... summary judgment will be granted `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.'" Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982) (Citations omitted). The burden is upon the moving party to demonstrate that either (1) an essential element of the opposing party's claim is nonexistent, or (2) the opposing party will be unable to produce sufficient evidence to support an essential element of its claim. Id. "If the moving party meets this burden, the nonmoving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so." (Citations omitted). Id.
We first consider the trial court's ruling granting summary judgment in favor of defendant. It is an established principle of insurance law that an insurer must return premiums where, without fault or fraud by the insured, no risk to the insurer ever attaches under the policy. In such a case, the premiums have been paid upon a *216 consideration which has failed. 15 Appleman, Ins.L. & P. § 8358 (1944 & 1982 Supp.), 43 Am.Jur.2d Insurance § 918 (1982 & 1983 Supp.). If risk attaches at any time but the policy is later cancelled or suspended, courts disagree whether a prorata refund of premiums is required. Compare 6 Couch on Insurance 2d, § 34:9 (1961 & 1983 Supp.), 43 Am.Jur.2d Insurance §§ 386, 399 (1982 & 1983 Supp.).
In this case, plaintiff asserts that risk never attached under defendant's policy because plaintiff already had Federal Crop Insurance and because plaintiff never notified defendant of his Federal Crop Insurance. Defendant's burden in its motion for summary judgment was to demonstrate that no material issue of fact remained concerning whether risk attached. This defendant failed to do. Defendant concedes in its brief that the effect of its "other insurance" clause is to suspend coverage until the insured notifies it of the existence of other insurance. See also N.C. Grange Ins. Co. v. Johnson, 51 N.C.App. 447, 276 S.E.2d 469, disc. rev. granted, 303 N.C. 315, 281 S.E.2d 652 (1981), disc. rev. dismissed, 304 N.C. 721, 285 S.E.2d 812 (1982), holding that the presence of an "other insurance" clause renders that policy void ab initio where the insured has other insurance. Defendant has failed to produce a forecast of evidence tending to show that plaintiff did not possess Federal Crop Insurance when he applied for a policy with defendant, or that defendant was ever notified of plaintiff's Federal Crop Insurance, thereby enabling risk to attach under the contract. Defendant states only that the contract was never cancelled and that it was "ready, able and willing" to perform provided that plaintiff complied with the contract provisions. This argument is inapposite, since plaintiff seeks reimbursement on the grounds that risk never attached under the policy.
Defendant contends that plaintiff is trying unfairly to "have it both ways" by retaining the ability to choose either to (a) pay a premium, incur a loss, give notice of other insurance and collect under the policy or (b) pay a premium, incur no loss, give no notice and obtain a refund. This argument ignores the fact that under defendant's own interpretation of its "other insurance" clause defendant's liability does not attach until after it receives notice of an insured's other insurance. Because plaintiff failed to give defendant notice of his existing Federal Crop Insurance coverage, defendant was never at risk under its policy with plaintiff. For the reasons stated, we hold that the trial judge erred in granting summary judgment in favor of defendant.
We turn now to plaintiff's argument that the trial judge erred in denying plaintiff's motion for summary judgment. Once again, we agree with plaintiff. Plaintiff's forecast of evidence showed that risk never attached under the policy, and defendant failed to rebut this evidence. Therefore, no material issue of fact remained for trial. Because we hold that summary judgment should have been granted in favor of plaintiff, we need not reach plaintiff's other assignment of error.
The judgments of the trial court are reversed and this cause is remanded to the trial court with instructions for entry of summary judgment for plaintiff.
Reversed and remanded.
ARNOLD and BRASWELL, JJ., concur.