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CIM INS., CORP. v. CASCADE AUTO GLASS, INC.,

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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA07-1079

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

CIM INSURANCE CORPORATION,
GMAC DIRECT INSURANCE CO.,
GMAC INSURANCE COMPANY ONLINE,
INC., HOME STATE COUNTY MUTUAL,
INTEGON CASUALTY INSURANCE CO.,
INTEGON GENERAL INSURANCE CORP.,
INTEGON INDEMNITY CORP., INTEGON
NATIONAL INSURANCE CO., INTEGON
PREFERRED INSURANCE CO., INTEGON
SPECIALTY INSURANCE CO., MIC
GENERAL INSURANCE CORP., MIC
PROPERTY AND CASUALTY INS. CORP.,
MOTORS INSURANCE CORPORATION.,
NATIONAL ALLIANCE INSURANCE CO.,
NATIONAL GENERAL ASSURANCE CO.,
NATIONAL GENERAL INSURANCE CO.,
NEW SOUTH INSURANCE CO., and
GMAC INSURANCE HOLDINGS, INC.,

Plaintiffs,

v
.
Wake County


No. 05 CVS 2110
CASCADE AUTO GLASS, INC.,

Defendant.

Appeal by defendant from judgment entered 5 April 2007 by
Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 4 March 2008.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Steven M. Sartorio and Scott A. Miskimon, for plaintiffs-
appellees.

Connor Law Firm, P.L.L.C., by Gregory S. Conner; and Livgard
& Rabuse, P.L.L.P., by Charles J. Lloyd, pro hac vice, for
defendant-appellant.


JACKSON, Judge.

Cascade Auto Glass, Inc. (“defendant”) appeals the granting of
summary judgment in favor of CIM Insurance Corporation and
seventeen other named plaintiffs in the instant case on 5 April
2007. For the reasons stated below, we affirm.
Defendant is an automobile glass replacement company doing
business in North Carolina. The eighteen named plaintiffs (“GMAC”)
are all GMAC-affiliated insurance companies providing comprehensive
automobile insurance coverage to insureds within North Carolina,
including the repair or replacement of damaged automobile
windshields. Between 1999 and 2004, defendant replaced broken
windshield glass in at least 2,284 GMAC-insured vehicles, over 525
of which were North Carolina vehicles.
Prior to 1999, GMAC administered its own glass coverage
program, and generally paid the full amounts billed by defendant
for work performed for its insureds. In 1999, GMAC entered into an
agreement with Safelite Solutions _ an affiliate of Safelite Auto
Glass (“Safelite”) _ to serve as third-party administrator of its
auto glass program. Thereafter, Safelite communicated the prices
that GMAC would agree to pay defendant for its services, which
generally were lower than what GMAC previously had paid.
Defendant disputed the Safelite prices. Notwithstanding
defendant’s protests, once an insured filed a claim, Safelite would
send defendant a confirmation fax, including the previously stated
price GMAC would pay, and a statement that “[p]erformance of
services constitutes acceptance of the above price . . . .”Defendant then would perform repair or replacement services and
bill GMAC the rates it deemed “fair and reasonable.” Defendant
also disputed the prices Safelite provided in the confirmation
faxes.
GMAC, through Safelite, submitted payments to defendant
according to the prices it quoted in its various communications
with defendant. Defendant accepted the payments from GMAC and
deposited the money into its corporate accounts, without returning
any funds to GMAC.
Defendant has had similar pricing disputes in Idaho and
Washington, and brought suit in those states seeking to recover
“’unpaid’ balances” from insurance carriers in those states.
Defendant also threatened to file a complaint against GMAC.
Consequently, on 15 February 2005, GMAC brought the instant action
for declaratory judgment, seeking a declaration of the rights of
the parties. In response, on 21 March 2005, defendant
counterclaimed for breach of contract as to the alleged unpaid
balances.
On 29 September 2006, GMAC filed a motion for summary
judgment, which was heard on 19 February 2007. By that time, both
the Idaho and Washington appellate courts had issued opinions
affirming their respective lower courts’ granting of summary
judgment against defendant. See Cascade Auto Glass, Inc. v. Idaho
Farm Bureau Ins. Co.
, 141 Idaho 660, 115 P.3d 751 (2005); Cascade
Auto Glass v. Progressive Ins.
, 135 Wash. App. 760, 145 P.3d 1253
(2006), disc. rev. denied, 161 Wash. 2d 1012, 166 P.3d 1217 (2007).The trial court in the instant case also granted summary judgment
against defendant by order filed 5 April 2007. Defendant appeals.
By its first assignment of error, defendant argues that
summary judgment was inappropriate because there were genuine
issues of material fact regarding whether GMAC breached the terms
of its policy. We disagree.
Summary judgment is appropriate “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2007). The trial court must consider the evidence in the light
most favorable to the non-moving party. See Summey v. Barker, 357
N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any
evidence of a genuine issue of material fact, a motion for summary
judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C.
440, 471, 597 S.E.2d 674, 694 (2004).
The moving party bears the burden of showing that no triable
issue of fact exists. Pembee Mfg. Corp. v. Cape Fear Constr. Co.,
313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citing Texaco, Inc.
v. Creel
, 310 N.C. 695, 699, 314 S.E.2d 506, 508 (1984)). This
burden can be met by proving: (1) that an essential element of the
non-moving party’s claim is nonexistent; (2) that discovery
indicates the non-moving party cannot produce evidence to support
an essential element of his claim; or (3) that an affirmative
defense would bar the claim. Collingwood v. G.E. Real EstateEquities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations
omitted). Once the moving party has met its burden, the non-moving
party must forecast evidence demonstrating the existence of a prima
facie
case. Id. (citation omitted).
In reviewing the evidence at summary judgment, “[a]ll
inferences of fact from the proofs offered at the hearing must be
drawn against the movant and in favor of the party opposing the
motion.” Boudreau v. Baughman, 322 N.C. 331, 343, 368 S.E.2d 849,
858 (1988) (citing Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d
189, 194 (1972)). This Court reviews an order allowing summary
judgment de novo. See Summey, 357 N.C. at 496, 586 S.E.2d at 249.
In its 5 April 2007 order, the trial court based its judgment
on three grounds: (1) GMAC complied with the terms of its insurance
contract; (2) GMAC paid defendant in accordance with unilateral
contracts GMAC entered into with defendant; and (3) defendant’s
actions in cashing checks sent to it by GMAC, knowing that GMAC
considered those payments “final,” constituted an accord and
satisfaction of any potential claim defendant might assert. “If
the granting of summary judgment can be sustained on any grounds,
it should be affirmed on appeal.” Shore v. Brown, 324 N.C. 427,
428, 378 S.E.2d 778, 779 (1989).
A unilateral contract is formed when one party makes a promise
and expressly or impliedly invites the other party to perform some
act as a condition for making the promise binding on the promisor.
See Gurvin v. Cromartie, 33 N.C. 174, 179 (1850) (One mode ofcontract is “when one party promises, in consideration that the
other will or will not do some act.”)
[W]here one makes a promise, conditioned upon
the doing of an act by another, and the latter
does that act, the contract is not void for
want of mutuality, and the promisor is liable
though the promisee did not at the time of the
promise engage to do the act; for upon the
performance of the condition by the promisee,
the contract becomes clothed with a valid
consideration, which relates back and renders
the promise obligatory.

Erskine v. Chevrolet Motors Co., 185 N.C. 479, 489, 117 S.E. 706,
710 (1923).
In the instant case, GMAC, through Safelite, communicated the
prices it was willing to pay defendant for services rendered to its
insureds. These prices were communicated in several ways: (1) via
letter to defendant’s shops, (2) via telephone when initial claims
were made, (3) via confirmation fax after claims were made but
before work was performed, and (4) via eventual payment of invoices
at the GMAC rate rather than defendant’s rate. The confirmation
faxes stated, “[p]erformance of services constitutes acceptance of
the above price . . . .” Although defendant protested the stated
prices, these protests admitted that the confirmation faxes
constituted offers – “The purpose of this letter is to address [the
confirmation faxes] and to dispel any notion that we are in
agreement with the offered pricing.”
“It is a fundamental concept of contract law that the offeror
is the master of his offer. He is entitled to require acceptance
in precise conformity with his offer before a contract is formed.”
MacEachern v. Rockwell International Corp.
, 41 N.C. App. 73, 76,254 S.E.2d 263, 265, disc. rev. denied, 297 N.C. 611, 257 S.E.2d
219 (1979) (citing Morrison v. Parks, 164 N.C. 197, 189, 80 S.E.
85, 86 (1913)). Here, the offer stated that acceptance was by
performance. Because defendant performed the requested repairs or
replacements, it accepted the terms of GMAC’s offers, forming valid
unilateral contracts at GMAC’s stated prices. See Id. at 76, 254
S.E.2d at 266 (“[W]hen the offer so provides, it may be accepted by
performing a specific act rather than by making a return promise.”
(citing Koppers Co., Inc. v. Chemical Corp., 9 N.C. App. 118, 126,
175 S.E.2d 761, 767 (1970))).
GMAC paid defendant pursuant to the terms of the unilateral
contracts entered into between the parties. Defendant has not been
“underpaid” and is due no further payments. Therefore, summary
judgment was properly granted against defendant.
Affirmed.
Judges WYNN and BRYANT concur.

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