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Home / Courts / Tort/Negligence – Insurance – Vacant Property – Theft & Vandalism Exclusion – Contract

Tort/Negligence – Insurance – Vacant Property – Theft & Vandalism Exclusion – Contract

Rayfield Properties, LLC v. Business Insurers of the Carolinas, Inc. (Lawyers Weekly No. 12-16-1257, 11 pp.) (Cheri Beasley, J.) Appealed from Orange County Superior Court (Richard A. Baddour Jr., J.) N.C. App. Unpub.

Holding: The plaintiff-property owner failed to show that the defendant-insurance agency had a duty to procure insurance that covered theft and vandalism for plaintiff’s vacant property or to specifically inform plaintiff about the theft and vandalism exclusion in plaintiff’s policy.

We affirm summary judgment for defendant.

Plaintiff presents no evidence that it requested vacancy coverage specifically for theft. In fact, there is no evidence of a request for vacancy coverage at all. At best, plaintiff demonstrated only an implied acceptance of the coverage offered by defendant when plaintiff did not cancel the policy upon learning that the premium was higher due to the vacant status of the building. It is not contested that the policy provided coverage in recognition of the building being vacant: It provided coverage for damage resulting from “lightening [sic], fire, wind, storm, riot, [etc.]” Plaintiff did not show that any more than this was requested. Because of this lack of request, defendant was under no duty to inform plaintiff of the exact provisions of the policy.

Furthermore, plaintiff had a duty to read the policy. The failure to read constitutes contributory negligence, barring recovery.

Plaintiff has also failed to show the agency owed it a fiduciary duty. There was no evidence that the agency received consideration beyond the premium payment, nor was there a clear request for advice. Plaintiff argues that a fiduciary relationship arose because the parties “had a long business relationship … dating back to the 1990s.”

However, a longstanding business relationship alone is not sufficient, and plaintiff produced no other evidence that defendant should have been on notice of fiduciary duties to inform. Thus, such a fiduciary duty did not exist, and plaintiff may not recover on a negligence claim.

Although plaintiff also alleged a breach of contract, plaintiff presents no evidence of a contract with defendant to procure vacancy coverage for theft and vandalism. Such a specific request was never made. Thus, there could not have been a contract to procure such insurance. Further, plaintiff failed to produce evidence that defendant misrepresented the coverage in violation of the parties’ contract where the evidence shows that the building had vacancy coverage for certain events. Nor does the evidence show that any contract term existed to require defendant to explain all provisions of the policy. Consequently, plaintiff failed to establish a claim for breach of contract sufficient to survive summary judgment.


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