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F & D Co. v. Aetna Insurance Co.

Filed: March 3, 1982.

F & D COMPANY
v.
AETNA INSURANCE COMPANY



The plaintiff appeals pursuant to G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals reported at Meyer, Justice.

Meyer

The marine insurance policy issued to the plaintiff by the defendant insures against physical loss or damage and contains the following provisions under the section entitled "General Conditions":

8. Notice of Accident, Claim or Suit.

(a) In the event of any occurrence which may result in loss, damage or expense for which the Company is or may become liable, the Insured shall give immediate written notice thereof to the Company.

10. Payment of Loss. In case of loss, such loss shall be paid within thirty days after written proof of loss and proof of interest in the Yacht shall have been given to the Company ; all indebtedness of the Insured to the Company being first deducted.

11. Limit of Time for Suit. No suit or action against the Company shall be maintainable in any court unless, as a condition precedent thereto, the Insured shall have complied with all of the warranties, terms and conditions contained in this policy and unless :

(a) In respect of any claim for physical loss or damage to the property insured under this policy or any charge or expense incurred under Sections "A", "E" or "F" of this policy, such suit or action is commenced within the twelve months next following the date of the physical loss or damage out of which such claim arose.

Provided that where any of the above limitations of time is prohibited or invalid by or under any applicable law, then and in that event no suit or action shall be commenced or maintainable unless commenced within the shortest limitation of time permitted under such law.

(Emphasis added.)

The vessel in question sank on 9 October 1976. The plaintiff's action was not filed until 2 March 1978, almost one year and five

months after the date of the loss. The defendant's answer set forth nine defenses, including the plaintiff's failure to institute suit on the policy within twelve months following the date of the physical loss or damage out of which its claim arose as required by Paragraph 11 of the General Conditions of the Policy. The plaintiff contends that the provisions of Paragraph 11(a) of the policy of insurance are void under G.S. § 58-31 which provides as follows:

No company or order, domestic or foreign, authorized to do business in this State under this Chapter, may make any condition or stipulation in its insurance contracts concerning the court or jurisdiction wherein any suit or action thereon may be brought, nor may it limit the time within which such suit or action may be commenced to less than one year after the cause of action accrues or to less than six months from any time at which a plaintiff takes a ...


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