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Fieldcrest Cannon Inc. v. Fireman''s Fund Insurance Co.11/5/1996
2 November 1985, Johnson & Higgins sent defendant Fireman's Fund notice of the Overcash /class action. By letter dated 4 December 1985, defendant Fireman's Fund notified Cannon's insurance manager, Joe Lambert, that defendant Fireman's Fund's insurance policies did not provide coverage for the Overcash /class action.
Following defendant Fireman's Fund refusal to defend Cannon in the Overcash /class action, Johnson & Higgins continued to correspond with the agents of the umbrella carriers about that case and the other additional employment discrimination claims throughout 1986 and early 1987. In 1986, agents for both umbrella carriers indicated that they would provide a defense to Cannon, or reimburse Cannon's defense costs--as they had agreed in the Rosenthal suit--with respect to said claims.
After Mission became insolvent in early 1987, defendant Guaranty began receiving and responding to the communications from Johnson & Higgins regarding the reimbursement of plaintiff's defense costs in the Rosenthal suit and the additional underlying claims. By letter dated 19 October 1987, counsel for defendant Guaranty informed plaintiff that defendant Guaranty would not reimburse plaintiff's defense costs in the Rosenthal suit or the additional underlying claims, since defendant Guaranty thought that defendant Fireman's Fund's policies covered those claims. Defendant Guaranty also advised plaintiff that it would not consider further reimbursement of plaintiff's defense costs until plaintiff first exhausted all legal remedies against defendant Fireman's Fund.
Consequently, plaintiff contacted defendant Fireman's Fund and notified the company of defendant Guaranty's position, and requested a meeting to discuss coverage issues regarding the underlying discrimination claims. Upon receiving no response from defendant Fireman's Fund, plaintiff filed an action (88CVS14786), on 5 December 1988, against defendant Fireman's Fund and the umbrella carriers for a declaratory judgment, and for reimbursement of its defense costs, settlement payments and judgments incurred in the underlying claims. Thereafter, on 2 August 1990, plaintiff filed a notice of voluntary dismissal of the December 1988 action pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure.
Plaintiff filed its complaint in the present action on 12 April 1991, within one (1) year of its voluntary dismissal of the December 1988 action, seeking declaratory judgment and compensatory damages for defendants' failure to defend and indemnify Cannon with respect to the six (6), above-listed, underlying employment discrimination complaints and/or lawsuits.
Following discovery, all of the parties filed cross-motions for summary judgment. These motions came on for hearing at the 8 March 1993 civil session of Mecklenburg County Superior Court before Judge Forrest A. Ferrell.
On 26 April 1993, Judge Ferrell entered an order finding (1) that defendant Fireman's Fund's general liability policies afforded plaintiff coverage for the underlying discrimination claims; (2) that defendant North River's umbrella policy afforded plaintiff excess coverage for the underlying discrimination claims; (3) that the issues of statute of limitations, late notice, and damages were to be decided by the jury; (4) that defendants Fireman's Fund and North River's motions for summary judgment were denied; and (5) that defendant Guaranty's motion for summary judgment was granted. Further, on 30 June 1993, Judge Ferrell entered an order, granting defendant North River's motion to dismiss on the grounds that defendant North River, as an excess carrier, could not be liable for the underlying discrimination claims
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