Sanders v. Nationwide Mutual Fire Insurance Co.

202 S.E.2d 477 (1974)

20 N.C. App. 691

Job SANDERS v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.

No. 7421DC12.

Court of Appeals of North Carolina.

February 20, 1974.

*478 William G. Pfefferkorn and Charles O. Peed, Winston-Salem, for plaintiff-appellant.

Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., Winston-Salem, for defendant-appellee.

CARSON, Judge.

All issues of fact having been stipulated to by the parties involved, the only question presented to us is whether or not the trial court correctly applied the law to the exclusionary clause in granting summary judgment for the defendant. Although this is a case of first impression in North Carolina, we are guided by cases construing other provisions of insurance policies. It is a general rule in construction of such policies that ambiguities are to be resolved against the carrier and in favor of the insured. Trust Co. v. Insurance Co., 276 N. C. 348, 172 S.E.2d 518 (1970); Williams v. Insurance Co., 269 N.C. 235, 152 S.E.2d 102 (1967); 4 Strong's N.C. Index 2d, Insurance, § 6. The reason for this is that the policies are prepared by the carrier. *479 The insured does not stand in an equal bargaining position. Since the language of the policy is that of the carrier, it is construed in favor of the insured to resolve the ambiguities. White v. Mote, 270 N.C. 544, 155 S.E.2d 75 (1967); Dildy v. Insurance Co., 13 N.C.App. 66, 185 S.E.2d 272 (1971).

It seems clear from the evidence that the plaintiff was domiciled in Winston-Salem at the time the theft occurred. It seems equally clear that the plaintiff had established a temporary residence in Philadelphia. The question becomes, therefore, whether the plaintiff had abandoned his temporary residence in Philadelphia at the the time the theft occurred. The defendant concedes that the plaintiff need not be present at the time the actual theft occurs for the policy to provide coverage. The defendant cites and relies on the case of Bryan v. Granite State Insurance Co., 185 So. 2d 310 (La.App.1966). There, the insured was domiciled in Lacombe, Louisiana, but maintained an apartment in New Orleans where he and his wife stayed overnight when visiting the city for business or social functions. A theft occurred while the insured and his wife were at their home in Lacombe. The Louisiana Court of Appeals denied coverage, stating that the insured was a resident of Lacombe rather than New Orleans at the time the theft occurred. It pointed out that had the theft occurred while the insured and his wife were spending the night in New Orleans, coverage would have applied. Actual physical presence was unnecessary, but coverage was denied where the insured was at his regular home at the time the theft occurred.

Of similar import are the cases of Reiner v. Insurance Co., 106 Ill.App.2d 210, 245 N.E.2d 655 (1969), and Springman v. Insurance Co., 5 Ill.App.3d 604, 283 N.E.2d 716 (1972). In the Reiner case, the plaintiff was a college student who had leased an apartment for 12 months. She did not enroll in summer school and was home with her parents during the summer. When she returned to school in the fall the theft was discovered. In the Springman case the plaintiffs owned a vacational, seasonal dwelling. The theft occurred during the winter months when the plaintiffs were at their regular residence. In both cases coverage was denied under a similar exclusionary clause. The court held that the plaintiffs in each case were at their regular residence rather than their temporary residence and thus there was no coverage.

The facts in the instant case are clearly distinguishable from the holdings in the cited cases. Here, the insured was not at his permanent residence at the time the theft occurred. Rather, he had left his temporary residence for a short period of time and returned at the end of the five days to Philadelphia. At the time the theft occurred, the plaintiff was occupying a room in Pittsburg, was temporarily residing in Philadelphia, and was permanently residing in Winston-Salem. We therefore hold that the insurance policy provided coverage for the theft in question and that summary judgment should have been granted for the plaintiff. Reversed.

BROCK, C. J., and MORRIS, J., concur.