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State Farm Fire and Casualty Co. v. Darsie12/16/2003
Life Ins. Co. v. Spencer, 336 N.C. 49, 442 S.E.2d 316 (1994), in her argument as to when the statute of limitations accrued. In Jefferson-Pilot, the insured was misinformed by the insurance company that his wife was the beneficiary of his life insurance policy. This Court held that "an action for negligent misrepresentation of an insurance contract does not accrue before the misrepresentation is discovered, neither does it accrue until the misrepresentation has caused the claimant harm." Id. at 56, 442 S.E.2d at 320 (holding that because the beneficiary of the policy only had an expected interest, rights under the policy did not vest until the death of the policyholder, and at that point triggered the statute of limitations). We agree with the applicability of Jefferson-Pilot. However, we believe the two requirements to trigger the statute of limitations in the case of a fraudulently procured insurance contract, both its discovery and the harm caused thereby, will often occur simultaneously. Most insurance policies require immediate notice of potential claims due to events such as accidents or deaths.
When an alleged claim under a policy is ripe, notice of the denial normally will be the time when the claimant is charged with discovery by reasonable diligence of the underlying fraud, and also injured by the lack of coverage. In her brief, Mrs. Leinfelder cites R-Anell Homes, 62 N.C. App. 653, 303 S.E.2d 573; and Transit, Inc. v. Casualty Co., 20 N.C. App. 215, 201 S.E.2d 216 (1973), aff'd, 285 N.C. 541, 206 S.E.2d 155 (1974), as authority to extend the statute of limitations by reasonable discovery. However, in both of these cases, the fiduciary relationship only excuses the reading of the new or renewed insurance policy during the policy's dormancy. These cases say nothing about excusing a party from the discovery of the extent of their policy after claims under the policy are ripe. Both cases were heard before a superior court within three years of the date of the incident which implicated the policy.
III. Incompetent Adult
In North Carolina, statutes of limitation are also "subject to expansion . . . by North Carolina's . . . `disabilities' statutes." Leonard v. England, 115 N.C. App. 103, 106-07, 445 S.E.2d 50, 52 (1994), disc. review denied, 340 N.C. 113, 455 S.E.2d 663 (1995); see also Soderlund v. Kuch, 143 N.C. App. 361, 369, 546 S.E.2d 632, 638 (2001). The disability statute which might operate to toll the statute of limitations at bar is N.C. Gen. Stat. § 1-17(a)(3) (2001), which states in pertinent part:
(a) A person entitled to commence an action who is at the time the cause of action accrued under a disability . . . .
(3) The person is incompetent as defined in G.S. 35A-1101(7) or (8).
N.C. Gen. Stat. § 35A-1101(7) (2001) defines an incompetent adult as being an adult or emancipated minor who lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury , or similar cause or condition.
(Emphasis added.)
The appropriate test for establishing an adult incompetent "is one of mental competence to manage one's own affairs." Cox v. Jefferson-Pilot Fire and Casualty Co., 80 N.C. App. 122, 125, 341 S.E.2d 608, 610 (emphasis added), cert. denied, 317 N.C. 702, 347 S.E.2d 38 (1986).
Mrs. Leinfelder has not argued, nor did the trial court find as fact or conclude as law, that she lacked capacity or opportunity to make the proper claims under her PLUP policy. Re
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