Council v. Metropolitan Life Ins. Co.

256 S.E.2d 303 (1979)

42 N.C. App. 194

James W. COUNCIL v. METROPOLITAN LIFE INSURANCE COMPANY.

No. 7828DC906.

Court of Appeals of North Carolina.

July 3, 1979.

*305 Long, McClure, Hunt & Trull by Robert G. McClure, Jr. and David E. Matney, III, Asheville, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis by O. E. Starnes, Jr., Asheville, for defendant-appellee.

HEDRICK, Judge.

Plaintiff first contends that the defendant is estopped from denying that the plaintiff is "totally disabled so as to be wholly prevented from engaging in any and every gainful occupation for which he is reasonably fitted by education, training, or experience" as defined in the insurance policy provision attached to the Complaint, on the grounds that the defendant initially denied benefits because of plaintiff's failure to qualify for Social Security benefits. Plaintiff relies on Gouldin v. Inter-Ocean Insurance Company, 248 N.C. 161, 165, 102 S.E.2d 846, 849 (1958), in which the Court quoted the general rule "`that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground if the insured has acted on its asserted position and incurred prejudice or expense by bringing suit, or otherwise." [Emphasis added.]

Plaintiff argues that because defendant sent him a letter denying his claim because of his failure to qualify for Social Security benefits it is now estopped from defending plaintiff's claim on any other theory. This is an erroneous interpretation of the rule stated in the Gouldin case. The defendant certainly could not defend against plaintiff's claim on a totally separate theory of which plaintiff had no notice and after plaintiff had relied on the representations of the insurance carrier to his prejudice. Plaintiff nevertheless must still introduce sufficient evidence to support his own theory of recovery in order to be entitled to the benefits under the policy. In the present case, defendant has not asserted a separate theory in defense of plaintiff's claim, but has merely relied on plaintiff's failure of proof. This assignment of error has no merit.

By assignments of error six and seven plaintiff contends that the court erred in its finding that he was not totally disabled *306 under the terms of the policy, and in failing to make the requested findings of fact and conclusions tendered by him. Plaintiff argues that the requested findings of fact are "undisputed" and "lead to inescapable conclusions of law that the plaintiff was totally disabled."

When a jury trial is waived, the court's findings of fact have the force and effect of a verdict by a jury and are conclusive if there is evidence to support them, even though the evidence would sustain findings to the contrary. Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835 (1971). In the present case, the evidence is sufficient to support the findings made by the trial judge, and the findings in turn support the conclusions and judgment for the defendant. This assignment of error has no merit.

Finally, plaintiff contends that the court erred in excluding testimony pertaining to his income for the past five years. Plaintiff argues that his gross income for the past five years never exceeded $2,200.00 per year and that his net income never exceeded $1,500.00 per year. Plaintiff apparently relies on the rule stated in Bulluck v. Mutual Life Insurance Company of N.Y., 200 N.C. 642, 646, 158 S.E. 185, 187 (1931), that in considering whether the claimant is totally disabled, his "ability to do odd jobs of comparatively trifling nature does not preclude recovery."

The issue addressed by the trial court was whether the plaintiff was "totally disabled so as to be wholly prevented from engaging in any and every gainful occupation for which he is reasonably fitted by education, training, and experience." The trial judge determined this issue against the plaintiff and made a specific finding of fact to that effect. The fact that the plaintiff has the ability to do odd jobs, or, as in the present case, that the plaintiff has in fact done various odd jobs, does not require the trial judge to find that the plaintiff can only perform such tasks. Furthermore, it is the nature of the work that the plaintiff is able to perform, and not what work he has actually performed or how much he has been paid, that is relevant to a determination of whether he is totally disabled. Thus, the trial court did not err in excluding evidence as to the plaintiff's income.

For the reasons stated, the judgment appealed from is affirmed.

Affirmed.

VAUGHN and ARNOLD, JJ., concur.