PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HIGH COUNTRY ARTS AND CRAFT
GUILD,
Plaintiff-Appellee,
                                                                   No. 96-2670
v.

HARTFORD FIRE INSURANCE COMPANY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-95-233-1-T)

Argued: June 5, 1997

Decided: October 17, 1997

Before WIDENER and NIEMEYER, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Widener and Senior Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald Lee Craig, BUTLER, BURNETTE & PAPPAS,
Tampa, Florida, for Appellant. Edward Glenn Kelly, James Gary
Rowe, KELLY & ROWE, P.A., Asheville, North Carolina, for Appel-
lee. ON BRIEF: Gary S. Parsons, John M. Kirby, BAILEY &
DIXON, L.L.P., Raleigh, North Carolina; George W. Hendon, Martin
K. Reidinger, ADAMS, HENDON, CARSON, CROW &
SAENGER, P.A., Asheville, North Carolina, for Appellant.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

The jury returned a verdict against Hartford Fire Insurance Com-
pany, finding that it breached its policy of insurance in refusing to pay
the fire loss claims of its insured, High Country Arts and Craft Guild,
and that it did so in bad faith. Hartford now challenges certain post-
trial rulings of the district court. Rejecting these challenges, we
affirm.

I

High Country Arts and Craft Guild, a nonprofit corporation located
in Asheville, North Carolina, was engaged in promoting and sponsor-
ing arts and craft events "with the idea of helping artists and crafts-
men make a living at the work they like to do." On April 2, 1995, a
fire destroyed High Country's office and all of its property, including
its computer database containing fund-raising and donor information.
While High Country reopened an office about one month later at a
new location, it struggled due to the lack of the database and dimin-
ished receipt of donations, and it wished not to proceed with shows
scheduled for the summer.

At the time of the fire, High Country was insured by Hartford Fire
Insurance Company for, among other things, loss of personal property
and loss of business income. Hartford paid the policy limits of $5,400
for the loss of personal property and, because the loss of business
income was expected to be substantial, appointed the Asheville
adjusting firm of Central Claims Service to handle the business
income claim. Central Claims Service appointed Steven Peek as the
claims adjuster.

In June 1995, Peek met with High Country employees and advised
them that High Country had 12 months of coverage for business inter-

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ruption loss and that High Country had a duty under the policy to mit-
igate its damages during that period. He stated that High Country was
therefore required, contrary to its wishes, to put on the shows that had
been scheduled. When High Country advised Peek that it was unable
to do so professionally, Peek insisted on Hartford's position that High
Country was required to put on the shows. He explained that by going
ahead with the shows, Hartford could measure High Country's busi-
ness loss for the year. Peek's insistence on proceeding with the shows
was approved by Hartford's home office. Despite High Country's
continuing protests to Hartford and its expectation of losses, High
Country put on two shows scheduled in July and early August 1995,
losing over $61,000 on one and approximately $13,000 on the other.

Because of disagreements about the amount of loss, the parties sub-
mitted that issue to a panel of appraisers, in accordance with policy
provisions, who assessed High Country's business loss for the first 60
days after the fire at $26,518. The appraisers did not quantify the loss
sustained after 60 days because they concluded that"[t]he period of
coverage under the business interruption provisions of the policy in
question should be limited to sixty days." They concluded that the
losses from the two shows occurred after the 60-day period and there-
fore should not be covered, adding that no loss caused by a "lack of
operational funds should be attributable to the policy." Hartford ten-
dered $26,518 to resolve the claim, but High Country insisted on pay-
ment for losses sustained during the 12 months after the fire.

High Country filed suit in state court, alleging claims for breach of
contract, tort, and state statutory violations, and Hartford removed the
case to federal court on the basis of diversity jurisdiction conferred by
28 U.S.C. § 1332. Following trial, the jury returned a verdict in favor
of High Country, finding that Hartford breached its contract of insur-
ance; that Hartford required High Country to put on shows to mitigate
its losses; that the policy provided High Country with insurance
against business income loss for 12 months; and that Hartford acted
in bad faith in refusing to settle with High Country. The jury awarded
High Country $246,809 in compensatory damages and $148,085.42
in punitive damages. In lieu of punitive damages, however, High
Country elected an award of treble damages and attorneys fees under
the North Carolina Unfair and Deceptive Trade Practices Act, N.C.
Gen. Stat. §§ 75-16 & 75-16.1.

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On appeal, Hartford assigns three errors. It argues that (1) the dis-
trict court erred in refusing to set aside the judgment because Peek
was without authority to extend coverage from 60 days to 12 months;
(2) the district court should have limited the damages for High Coun-
try's business income loss to the $26,518 fixed by appraisers; and (3)
the district court erred in allowing a verdict under North Carolina's
Unfair and Deceptive Trade Practices Act to stand in conflict with an
earlier summary judgment ruling made by the court in favor of Hart-
ford.

II

Hartford's principal argument is directed at the trial court's refusal
to grant Hartford's posttrial motion for a judgment as a matter of law
because "the court [erroneously] held Hartford Fire liable for 12
months loss of business income despite the language of the policy,
relying on what Peek, the independent claims adjuster, represented to
High Country." While the jury, not the court, found business loss for
the 12-month period, apparently Hartford claims that somehow the
jury relied on Peek's representation to High Country rather than on
the policy language. Hartford explains:

           The jury found that Hartford Fire breached the policy by
          not paying more than $240,000 for twelve months of loss of
          business income. This apparently was based upon findings
          that Mr. Peek, acting as Hartford Fire's agent, told High
          Country that it was entitled to loss of business income cov-
          erage for the entire twelve months following the date of the
          fire and that it must put on events which were likely to lose
          money. The Court, in ruling on Hartford Fire's Post-Trial
          Motion for Judgment as a Matter of Law, rejected Hartford
          Fire's argument that Mr. Peek had varied the terms of the
          policy beyond his authority to do so. The Court's ruling is
          error. As a matter of law, Mr. Peek had no authority, appar-
          ent or otherwise, to modify the plain language of the policy.
          Therefore the Court should have granted Hartford Fire's
          Motion for Judgment as a Matter of Law.

(Emphasis added).

                    4
While the jury found as a fact that Peek represented to High Coun-
try that it was entitled to 12 months of coverage for loss of business
income, there is no evidence that the jury based its award on Peek's
representation and not on the policy's language. Because, however,
we believe that Peek accurately stated, albeit in a general way, the
scope of the policy's coverage, it is of no consequence whether or not
he was authorized to make such a statement about the policy's cover-
age.

The policy reads in connection with business income loss cover-
age:

          We will pay for the actual loss of Business Income you sus-
          tain due to necessary suspension of your"operations" during
          the "period of restoration." The suspension must be caused
          by direct physical loss of or damage to property at the
          described premises. . . .

          We will only pay for loss of Business Income that occurs
          within 12 consecutive months after the date of direct physi-
          cal loss or damage. This Optional Coverage is not subject
          to the Limits of Insurance.

(Emphasis added). The policy defines the "period of restoration" as
"the period of time that (a) [b]egins with the date of direct physical
loss or damage . . . and (b) [e]nds on the date when the property at
the described premises should be repaired, rebuilt or replaced with
reasonable speed and similar quality." The parties agree that the
period of restoration constituted the first 60 days after the fire. Thus,
in the context of this loss, the unambiguous language of the policy
promises reimbursement for business income loss that was "due to,"
i.e., caused by, High Country's 60-day suspension of business and
that occurred during the 12-month period following the fire. So long
as a business loss is causally linked to the 60-day period, it is covered
even if it occurs after that period, provided that it "occurs" within 12
months after the date of loss.

The coverage under the policy for loss of business income attribut-
able to suspended operations is distinct from coverage for loss of
business income due to damage or loss of electronic records. That

                     5
coverage is limited to "the longer of (a) 60 consecutive days from the
date of direct physical loss or damage; or (b) the period beginning
with the date of direct physical loss or damage, necessary to repair,
rebuild, or replace [the records]."

Thus, when Peek told High Country that it had 12 months of cover-
age for loss of business income, his statement was accurate. What was
not said was that the loss of business income had to be due to the sus-
pension of business during the 60-day period of restoration, and could
not be attributed to loss of electronic records after the 60-day period.
But the failure to explain all of the limitations or conditions of the 12-
month business loss coverage does not render Peek's statement a mis-
representation that somehow altered the coverage of the policy.

Internal Hartford correspondence reveals an understanding that is
not inconsistent with Peek's statement to High Country. As of June
5, 1995, an internal Hartford record reveals that High Country was
already claiming between $50,000 and $100,000 and that the claim
could go higher with the loss of income from the cancellation of
shows, which everyone then knew were scheduled for dates substan-
tially beyond the initial 60-day period. An internal Hartford memo
dated July 21, 1995, states further, "Future handling: Central Claims
is handling the business interruption loss. The policy states there is
coverage for twelve months or until the business is fully operational."
Hartford recognized at that time that High Country's loss of all busi-
ness property and organizational information severely impaired its
ability to put on shows in a professional manner. Yet, Hartford
elected to mandate that the shows scheduled after the 60-day period
not be canceled in order to require High Country to mitigate damages.
It could not have made such a demand if it believed that the policy
only covered the first 60-days of business income loss.

We agree with Hartford that whether or not Peek was an agent, he
could not alter the insurance policy's coverage through his simple oral
explanations of coverage to the insureds. The policy explicitly pro-
vides that it encompasses "all agreements" between Hartford and the
insured and that changes are accomplished only through "endorse-
ment[s] issued by [Hartford]." While policy limitations are not the
sole constraint on the agent's authority, see Thomas v. Prudential Ins.
Co., 104 F.2d 480, 482 (4th Cir. 1939); Hill v. Philadelphia Life Ins.

                     6
Co., 156 S.E. 518, 522 (N.C. 1931); Capitol Funds, Inc. v. Royal
Indem. Co., 458 S.E.2d 741, 744 (N.C. App. 1995), it is well-settled
that an agent with limited apparent powers, such as Peek, lacks the
authority to alter a policy's terms and conditions absent the applica-
tion of compelling equitable principles to the contrary. See, e.g.,
Pearce v. American Defender Life Ins. Co., 343 S.E.2d 174, 177
(N.C. 1986); Foscue v. Greensboro Mut. Life Ins. Co., 144 S.E. 689,
690 (N.C. 1928); Bynum v. North Carolina Blue Cross & Blue Shield,
Inc., 222 S.E.2d 263, 266 (N.C. App. 1976); see also Northern Assur-
ance Co. v. Grand View Bldg. Ass'n, 183 U.S. 308, 321 (1902)(noting
the general rule that "a condition contained in the [insurance] policy
cannot be waived by an agent, unless he has express authority so to
do"). But recognition of this principle does not advance Hartford's
argument. It still is responsible to pay High Country in accordance
with the written promises contained in the policy and those promises
include a promise to pay for the actual loss of business income that
occurs "within 12 consecutive months after the date of direct physical
loss or damage" which is "due to necessary suspension of your `oper-
ations' during the `period of restoration'." In other words, Hartford is
responsible for losses caused by the close of High Country's business
during a 60-day period, whether or not those losses showed up during
the 60-day period, so long as they occurred within 12 months.

III

Hartford also contends that the appraisal of loss at $26,518 should,
as a matter of law, govern to the same extent as would an arbitration
award.

The policy provides with respect to appraisals:

          If we and you disagree on the amount of loss, either may
          make written demand for an appraisal of the loss. In this
          event, each party will select a competent and impartial
          appraiser. The two appraisers will select an umpire.[I]f they
          cannot agree, either may request that selection be made by
          a judge of a court having jurisdiction. The appraisers will
          state separately the amount of loss.

                    7
(Emphasis added). We agree with Hartford that for purposes of deter-
mining the amount of a loss, the policy provision governs and is con-
tractually binding on the parties.

Appraisal provisions which bind the parties on "the single issue of
the amount of loss under a fire insurance policy, reserving all other
issues for trial in court" long ago withstood due process challenges.
Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151,
159 (1931); see also Bentley v. North Carolina Ins. Guar. Ass'n, 418
S.E.2d 705, 709 (N.C. App. 1992). And, in the absence of "evidence
of fraud, mistake, duress or other impeaching circumstance," North
Carolina clearly considers the parties contractually bound by the
results of appraisals. Young v. New York Underwriters Ins. Co., 176
S.E. 271, 273 (N.C. 1934); see also McMillan v. State Farm Fire &
Cas. Co., 379 S.E.2d 88, 90 (N.C. App. 1989) (upholding the results
of a fire insurance appraisal process "for determining the amount of
loss").

High Country argues, however, that this clause is illusory because
Hartford retained the right to back out, directing our attention to lan-
guage of the policy which reads: "If there is an appraisal, we [Hart-
ford] will still retain our right to deny the claim." We disagree with
High Country's interpretation that this clause makes the appraisal pro-
vision illusory. That clause does not release Hartford from the binding
effect of an appraisal as to the amount of loss-- Hartford would be
bound to the same extent as would be High Country. Rather, the
clause reserved to Hartford the right to deny the claim for any just
reason. The clause eliminates the possible construction that simply
because Hartford requests or submits to an appraisal, it would there-
fore be bound to pay a claim. On a vigorously contested coverage
question, Hartford might well choose to seek an appraisal to deter-
mine the amount of a loss with the idea of paying it as an economic
matter rather than litigating a coverage issue. By force of the same
reasoning, however, it could request the appraisal and, when it found
the amount excessive, deny the claim on coverage grounds. By deny-
ing the claim, however, Hartford could not deny the appraised amount
of the loss if it were later determined that it was wrong on the cover-
age issue. That amount would have been established by the appraisal.

Our reading of this clause does not, however, entitle Hartford to
limit the damages in this case to $26,518, the amount of loss found

                    8
by the appraisers. Hartford would be entitled to that limitation only
with respect to the loss for the first 60-day period after the fire
because that is all that the appraisal purported to measure. If the
appraisal had determined the loss for the 12-month period following
the fire, which was attributed to the 60-day business interruption, then
both parties would have been bound by the amount so determined.

We recognize that the appraisal in this case purported also to
resolve the coverage period questions, finding that the policy pro-
vided only for 60-days coverage. But the policy conferred on apprais-
ers only the right to determine "the amount of loss," and consequently
the parties are not to be bound by the appraiser's determinations of
coverage issues.

IV

Finally, Hartford argues that the court's reliance on the North Car-
olina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat.
§§ 75-16 & 75-16.1, to award treble damages and attorneys fees was
precluded by the court's earlier summary judgment order in favor of
Hartford. We reject the argument for several reasons.

Counts II and IV of the complaint in this case assert a right to tre-
ble damages and attorneys fees based on both the North Carolina
Unfair Claims Settlement Practices Act, N.C. Gen. Stat. § 58-63-
15(11), and the North Carolina Unfair Trade Practices Act, N.C. Gen.
Stat. § 75-16.1. In addressing before trial Hartford's motion for sum-
mary judgment, the district court ruled that High Country was not
entitled to maintain a claim for "unfair claims practices" because High
Country failed to show a "pattern or practice" of unfair claim settle-
ments. The court ruled:

          [O]ne cause of action is appropriate for summary judgment.
          Plaintiff alleged a cause of action for unfair claims practices.
          Defendant moved for summary judgment on the grounds
          that Plaintiff had failed to show a pattern or practice of
          unfair claims. Plaintiff did not address this issue in its oppo-
          sition to the motion for summary judgment and thus, judg-
          ment dismissing this cause of action is appropriate.

                    9
Neither the court nor the parties thereafter interpreted this ruling to
preclude the prosecution of claims for unfair trade practices under
N.C. Gen. Stat. § 75-1.1. While proof of unfair claims practices does
constitute per se proof of an unfair or deceptive trade practice under
N.C. Gen. Stat. § 75-1.1, see, e.g., Pearce, 343 S.E.2d at 179; Murray
v. Nationwide Mut. Ins. Co., 472 S.E.2d 358, 363 (N.C. App. 1996),
failure to prove unfair claims practices does not independently neces-
sitate judgment as a matter of law against a related claim for unfair
trade practices.

Indeed, the court and all the parties involved continued to try the
unfair trade practices issues to the jury. Both Hartford and High
Country submitted to the court proposed jury instructions that
included instructions on the claims for unfair trade practices. Simi-
larly, during the discussion between the court and the parties about
the appropriate jury charge, counsel for Hartford acknowledged the
submission of the unfair trade practices claims to the jury, arguing for
his own form of special interrogatories and instructions. Finally, the
court instructed the jury on acts that would constitute unfair trade
practices without objection to their inclusion from any party. Indeed,
Hartford did not object on this ground even after the jury returned its
verdict, advancing the point for the first time on appeal.

Finally, even if the court had in fact issued an order earlier in the
case precluding or disposing of the claims for unfair trade practices,
it was interlocutory so that the court clearly had the power to change
its mind before final judgment. See, e.g., Hardin v. Hayes, 52 F.3d
934, 938 (11th Cir. 1995) (stating that court has plenary power over
interlocutory orders); Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1
(10th Cir. 1991) (noting that district court has"general discretionary
authority to review and revise interlocutory rulings prior to entry of
final judgment"); see also Fed. R. Civ. P. 54(b). In this case, however,
it does not appear that the court changed its mind. Rather the court's
earlier ruling was understood by all involved to be a limited order that
still permitted a trial of statutory claims for unfair trade practices
under N.C. Gen. Stat. § 75-1.1.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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