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Erler v. Aon Risks Services12/29/2000
should not have made such a remark . . . the record indicates that upon hearing the remark the court took the necessary steps to correct the impropriety. When a jury is instructed to disregard improperly admitted testimony, the presumption is that it will disregard the testimony. Fidelity Bank at 65, 277 S.E.2d at 814.
In the case at bar, defendants immediately objected to the statements about Aon by plaintiffs' counsel. Their objection was sustained and curative instructions were given to the jury. Thus, the presumption is that the jury acted properly and disregarded the statements of plaintiffs' counsel. As a result, we find the trial court did not abuse its discretion in denying defendants' motion for a new trial.
The plaintiffs assign as error the trial court's dismissal of their claim of unfair and deceptive trade practices on two grounds. First, plaintiffs rely on this Court's holding in Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), rev. denied, 328 N.C. 89, 402 S.E.2d 824 (1991), to establish that defendants' conduct amounted to an unfair and deceptive trade practice. In order to prove an unfair and deceptive trade practice, plaintiffs must show that defendants engaged in "unfair or deceptive acts or practices in or affecting commerce." N.C. Gen. Stat. § 75-1.1 (1999). Plaintiffs cite Forbes in support of the proposition that defendants' misrepresentations are not exempt from Chapter 75 merely because they were made "negligently and in good faith, in ignorance of their falsity, and without intent to mislead." Forbes at 601, 394 S.E.2d at 651.
In Forbes, the plaintiffs were purchasers of lots and memberships in a resort community. They brought suit against the community's developers, sales agents, and brokerage firm for fraudulently transferring the plaintiffs' property deposits into the developer's private checking account in order to pay his salary. In reversing the trial court's grant of summary judgment in favor of the defendant, this Court stated:
hether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers . . . n essence, a party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position. Forbes at 600, 394 S.E.2d at 650.
We find the facts here distinguishable from Forbes. Defendants' actions purported to expand plaintiffs' existing insurance policy to cover inventory that was uninsurable under the policy. Defendants stood to gain very little from their misleading conduct which was limited to these plaintiffs. We cannot characterize defendants' actions as "immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Id. Furthermore, the effect of defendants' actions in the marketplace would be negligible.
In addition, N.C. Gen. Stat. § 58-63-15(1)(1999) defines unfair methods of competition and deceptive acts or practices in the business of insurance. Since the flood insurance sought by plaintiffs was not available among competing insurers, no unfair advantage was to be gained from defendants' actions. Based on the foregoing reasons, we find no error in the trial.
No error.
Judges LEWIS and HUNTER concur.
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