MEEKINS
v.
AETNA INS. CO.
No. 19.
Supreme Court of North Carolina.
March 1, 1950.*779 J. Henry LeRoy and John H. Hall, Elizabeth City, for plaintiff.
Wilson & Wilson, Elizabeth City, for defendant.
DENNY, Justice.
The demurrer interposed by the defendant raises two questions: (1) Is the plaintiff, in the absence of waiver or estoppel, bound by the provision in the Standard Fire Insurance Policy of the State of North Carolina, as set forth in G.S. § 58-177, which requires that an action to recover thereon must be instituted within twelve months from the inception of the loss, unless a longer time for instituting suit has been agreed upon between the parties and such agreement appears on the face of the policy, as authorized by Chapter 378 of 1945 Session Laws of North Carolina, G. S. § 58-177, and such extension of time is pleaded? (2) If so, does the complaint allege sufficient facts to constitute waiver or estoppel?
The first question should be answered in the affirmative. One who relies upon an exception in a statute, in order to obtain the benefit thereof, must so cast his pleading as to bring himself within the exception. McIntosh's N. C. Practice and Procedure, Section 357; 41 Amer.Jur., Pleadings, Section 93; Schlemmer v. Buffalo, R. & P. R. Co., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681; Baldwin v. Lev, 163 Misc. 929, 297 N.Y.S. 963; Rose v. Petaluma & S. R. Ry. Co., 64 Cal.App. 213, 221 P. 406; Anno. 130 A.L.R. 440, et seq. Cf. State v. Johnson, 229 N.C. 701, 51 S.E.2d 186 and State v. Davis, 214 N.C. 787, 1 S.E.2d 104.
Likewise, we think the second question should be answered in the affirmative. Immediate notice of the fire and loss or damage was given to the defendant, as required by the policy. Proof of loss was filed by the plaintiff with the defendant and retained by it without objection. Thereafter, defendant entered into negotiations with the plaintiff about the payment of his claim and upon inquiry from time to time about its status he was advised the matter was having defendant's attention; and, he was promised that as and when the defendant completed its investigation of the claim and had received the necessary or required data, the claim would be paid and/or satisfactorily adjusted. But, not until July 16, 1948, eleven months and twenty-one days after the fire, in response to a demand for payment made by plaintiff through an attorney, was the plaintiff informed that any additional data or proof of loss was required of him. And this information was obtained from the Adjustment *780 Bureau and not from the defendant. Additional forms for proof of loss were furnished by the defendant through the Adjustment Bureau, on July 24, 1948, eleven months and twenty-nine days after the fire. The additional proof of loss was sent to the Adjustment Bureau on or about August 11, 1948. The plaintiff was informed by letter from the Adjustment Bureau, dated September 28, 1948, that the defendant declined to accept said documents as satisfactory proof of loss for certain enumerated reasons, none of which was based on the failure to file proof of loss earlier; but, on the contrary, the defendant furnished through the Adjustment Bureau additional forms for proof of loss, which were executed and forwarded to the defendant through the Adjustment Bureau on October 12, 1948. It will be noted, these last documents to be used in filing proof of loss under this policy were furnished by the defendant or its agent more than fourteen months after the fire.
This Court said, in Strause v. Palatine Insurance Company, 128 N.C. 64, 38 S.E. 256: "It is well settled that the adjuster of the insurance company may, by his acts or declarations, waive the requirements as to proofs of loss,especially as to time." Here the allegation is to the effect that the defendant, acting through the Adjustment Bureau, required the plaintiff to file additional proofs more than fourteen months after the fire. We think this is some evidence to support the view that the defendant waived any provision in the policy as to the time in which proof of loss was required to be submitted.
But what about the stipulation in the policy which requires any action on the policy to be instituted "within twelve months next after the fire"? This stipulation is a contract, and not a statute of limitations, and may be waived, or the party for whose benefit it was inserted may be estopped by his conduct from insisting upon its enforcement. Dibbrell v. Georgia Home Insurance Company, 110 N. C. 193, 14 S.E. 783, 28 Am.St.Rep. 678; Hardy v. Phoenix Mut. Life Insurance Company, 180 N.C. 180, 104 S.E. 166; Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Zibelin v. Pawtucket Mutual Fire Insurance Company, 229 N.C. 567, 50 S.E.2d 290.
In the case of Dibbrell v. Georgia Home Insurance Company, supra, it is said [110 N.C. 193, 14 S.E. 787]: "As a general rule, if the insurer through the conduct of any agent acting within the scope of his authority, leads the insured into an infraction of one of the conditions of a policy by insisting upon the performance of a duty enjoined by another clause of the policy, and inconsistent with the observance of such condition, the insurer will be estopped from insisting upon a forfeiture. * * * And it has been expressly held that `statements by a local insurance agent that the plaintiff's loss "all right," and that the company would pay the amount, constitutes a waiver by the company of the clause in the policy requiring formal proof of loss, and also the one barring suits not brought within one year.' * * * In Muse v. London Assurance Corp., 108 N. C. 240, 242, 13 S.E. 94, it is declared that such stipulations, operating as forfeitures, are construed strictly, and comparatively slight evidences of waiver have been held sufficient to prevent their enforcement. Ripley v. Aetna Insurance Company, 29 Barb.N.Y., 552; Ames v. New York Union Insurance Company, 14 N.Y. 253."
Furthermore, in Modlin v. Atlantic Fire Insurance Company, 151 N.C. 35, 65 S.E. 605, 609, this Court cited the case of Titus v. Glen Falls Insurance Company, 81 N. Y. 410, and quoted from the opinion therein the following: "When there has been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach and claim forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do so or say anything to make the forfeiture effectual. It may wait until claim is made under the policy, and then, in denial thereof, or in *781 defense of a suit commenced therefor, allege the forfeiture. But it may be asserted broadly that if in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act, or incur some trouble or expense, the forfeiture is as a matter of law waived", citing in support thereof Knickerbocker Life Insurance Company v. Norton, 96 U.S. 234, 24 L.Ed. 689; Horton v. Home Insurance Company, 122 N.C. 498, 29 S.E. 944, 65 Am. St.Rep. 717, and Collins v. Farmville Insurance and Banking Company, 79 N.C. 279, 28 Am.Rep. 322.
We think where an insurance company issues its policy, accepts the premium or premiums therefor, and the insured suffers a loss which the policy purports to cover, the insurance company will not be permitted to enforce the stipulation as to the time for instituting an action thereon, if it promises the insured his claim will be paid or satisfactorily adjusted, when the insurer completes its investigation and receives the necessary or required data, and the claim for loss is not denied nor demand made for additional proof of loss until too late for the suit to be brought within the stipulated time of twelve months next after the fire. In the case before us, if the plaintiff had been in a position to file additional proof of loss on July 16, 1948, when he was first notified that the defendant had taken the position that his original proof of loss did not constitute a proper proof of loss, his claim would not have been due and payable until after the expiration of sixty days from the date of filing such proof of loss, if we concede the correctness of the defendant's contention that no proof of loss had been filed theretofore. If the defendant was acting in good faith in requiring these additional proofs of loss, then it cannot be doubted that it intended to waive the stipulated time for instituting an action for the collection of the claim. Dibbrell v. Georgia Home Insurance Company, supra; Higson v. North River Insurance Company, 152 N.C. 206, 67 S.E. 509.
We think the complaint alleges sufficient facts, if supported by competent evidence, to carry the case to the jury on the question of waiver and estoppel. It would seem that if the defendant, by its promises and conduct, was responsible for the delay in filing a proper proof of loss and waived the time for filing such proof until the claim thereunder did not fall due and payable until after the expiration of twelve months next after the fire, it would be estopped from enforcing the provision in the policy which requires the action to be brought within twelve months next after the fire. However that may be, the question of waiver and estoppel is one for the twelve.
Tatham & Co. v. Liverpool, London & Globe Insurance Company, 181 N.C. 434, 107 S.E. 450, and similar cases, are not controlling on this record.
The ruling of the Court below will be upheld.
Affirmed.