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Defeat the Beat, Inc. v. Underwriters at Lloyd's London

Court of Appeals of North Carolina

June 12, 2008, Heard in the Court of Appeals; December 2, 2008, Filed

NO. COA08-101

Opinion

 [*110]   [**50]  Appeal by plaintiff from judgment entered 23 August 2007 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 June 2008.

McCULLOUGH, Judge.

Defeat The Beat, Inc. ("plaintiff") appeals from the entry of summary judgment in favor of Underwriters At Lloyd's London ("Lloyd's London") and Petersen International Underwriters ("Petersen International") (collectively, "defendants").

] Under N.C.R. Civ. P. 56(c)(2007), summary judgment is properly granted when "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" Thus, "the standard of review  [***2] on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).

The undisputed facts and procedural history pertinent to the instant appeal are as follows: Plaintiff is a North Carolina corporation organized for the purpose of hosting an annual marching band competition for historically black colleges. On or about 6 July 2004, plaintiff, through its Chief Executive Officer Karen Blackmon, contacted  [*111]  Stacy Fields for assistance in procuring insurance for the 2004 Defeat the Beat Battle of the Bands event, which was scheduled to occur at Memorial Stadium in Charlotte on 21 August 2004 ("the band competition"). Fields worked as an independent contractor for defendants and had procured approximately three insurance policies through Lloyd's London prior to her meeting with Blackmon.

Blackmon communicated to Fields that she was interested in obtaining coverage "to protect . . .  [***3] the moneys that [she] had put into the event . . . [and to insure] that [she] wouldn't take a loss whatsoever." After discussing various policies, Blackmon filled out an "Application for Cancellation/Abandonment & Non-Appearance Insurance." Blackmon listed budgeted expenses of $ 540,000.00 and anticipated revenue of $ 600,000.00 on the application form. She also checked boxes indicating that, if available, she was interested in obtaining loss of net income, adverse weather, and reduced attendance coverage. This application was submitted to defendants on 6 July 2004.

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194 N.C. App. 108 *; 669 S.E.2d 48 **; 2008 N.C. App. LEXIS 2163 ***

DEFEAT THE BEAT, INC., Plaintiff, v. UNDERWRITERS AT LLOYD'S LONDON and PETERSEN INTERNATIONAL UNDERWRITERS, Individually and Collectively, Defendants.

Prior History:  [***1] Mecklenburg County. No. 06-CVS-19334.

Disposition: Affirmed.

CORE TERMS

unfair, coverage, insured, weather, band, deceptive, summary judgment, interruption, practices, insurance policy, Cancellation, expenses, non-moving, deceptive trade practices, terms of the policy, deceptive act, trial court, Premium, grant summary judgment, settlement, contends, forecast, damages, profits, stadium

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Contracts Law, Breach, Breach of Contract Actions, Insurance Law, Claim, Contract & Practice Issues, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Business & Corporate Compliance, Industry Practices, Unfair Business Practices, Unfair Trade Practices Acts, Insurance Company Operations, Damages, Punitive Damages, Burdens of Proof