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Phillips v. Universal Underwriters Insurance Co.

Filed: September 18, 1979.

HARLAND CLAYTON PHILLIPS
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY



Appeal by plaintiff from Kivett, Judge. Orders entered 21 August and 23 August 1978 in Superior Court, Guilford County. Heard in the Court of Appeals 22 August 1979.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Parker concur.

Martin

Did the trial court commit reversible error either in denying plaintiff's motion for summary judgment, in granting Universal's motion for summary judgment, or in denying plaintiff's motion to amend his complaint? We answer this question in the negative and therefore affirm.

In discussing the standard for summary judgment as fixed by Rule 56(c) of the North Carolina Rules of Civil Procedure, the North Carolina Supreme Court has succinctly stated: "Rule 56 is for the disposition of cases where there is no genuine issue of fact and its purpose is to eliminate formal trials where only questions of law are involved." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). In reviewing the criteria for the grant of Universal's motion for summary judgment, we find that the court was not in error.

The deposition of plaintiff and certain exhibits established that Universal was prompt in providing the information which plaintiff requested, contrary to his allegation that his efforts to find out why his premium had increased had been ignored.

Furthermore, the insurance policy was not false in its notation that Uninsured Motorist Coverage had been waived. Plaintiff's letter of 2 September 1977 to Universal was clearly a separate written rejection of Uninsured Motorist Coverage. ". . . I expressly waived this coverage and I don't want it now!"

Finally, no genuine issue of material fact was presented as to the FS-4 statement. The question was whether Universal sent the notice of termination to the Department of Motor Vehicles deliberately, with total and reckless disregard for plaintiff's rights, or whether the notice was sent because of a clerical error. The affidavit of Universal's regional sales manager maintained that the FS-4 statement was simply a clerical error. And, when asked if plaintiff had any evidence upon which to base his "statement that these things you have complained of, about the company, were harassments rather than errors on the part of someone working for the company?" plaintiff responded, in his deposition, "No."

In addition, plaintiff totally failed to produce any evidence of damages. To the contrary, by his own admissions, he sustained no loss.

To be entitled to compensatory damages plaintiff must show that the damages claimed are the natural and probable result of the acts complained of; he must also show the amount of loss with reasonable certainty. Norwood v. Carter, 242 N.C. 152, 87 S.E.2d 2 (1955). "'However, where actual pecuniary damages are sought,

there must be evidence of their existence and extent, and some data from which they may be computed.'" Id. at 156, 87 S.E.2d at 5. Implicit within this principle of law is the fact that plaintiff must have suffered some loss, no matter how minimal. In this case, plaintiff admitted in his deposition that he had sustained no monetary damages whatsoever. In response to questions concerning his monetary loss and compensatory damages, plaintiff answered that his only monetary loss had been a thirty-dollar fee for filing his lawsuit. He further admitted that he had sustained no loss to his motorcycle. It had neither been involved in an accident nor damaged in any way. There were absolutely no items of damage the plaintiff could point to. In other words, plaintiff claimed $4,000 in compensatory damages for losses that did not exist.

Plaintiff also claimed punitive damages of $40,000 in his original complaint. Punitive damages are awarded above and beyond compensatory damages in proper instances. Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). Punitive damages may not be awarded where plaintiff is not entitled to recover any compensatory damages. Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). It follows that ...


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