BERNSTEIN v. CONNECTICUT FIRE INSURANCE COMPANY

BERNSTEIN v. CONNECTICUT FIRE INSURANCE COMPANY
1957 OK 184
315 P.2d 232
Case Number: 37411
Decided: 07/09/1957
Supreme Court of Oklahoma

 
DAVID BERNSTEIN, PLAINTIFF IN ERROR,
v.
CONNECTICUT FIRE INSURANCE COMPANY, DEFENDANT IN ERROR.

Syllabus of the Court

¶0 1. Where denial of liability under fire loss insurance policy occurs within four months of the time of the loss, there is no waiver of the limitation for the commencement of an action within one year from loss.
2. A statute included in the statutes as compiled, approved and adopted by the Legislature as Oklahoma Statutes 1951, although containing a defective title as originally enacted in 1945, is re-enacted and all provisions thereof valid, if not otherwise contrary to law.

Appeal from the District Court of Oklahoma County; A.P. VanMeter, Trial Judge.

Action to recover from insurer amount alleged to be due under fire loss insurance policy. Judgment for defendant; plaintiff appeals. Affirmed.

C.V. Cartwright, Wewoka, Gomer Smith, Jr. and Phillip R. Douglas, Oklahoma City, for plaintiff in error.

Hanson & Green, by Clarence P. Green, Oklahoma City, for defendant in error.

PER CURIAM.

¶1 This action was initiated June 30, 1955, to recover from the defendant the amount alleged to be due by virtue of its insurance contract with plaintiff. The fire loss occurred March 26, 1954.

¶2 In his second amended petition plaintiff pleaded the insurance policy and the loss; that an adjuster visited him and told him his policy was in force and requested certain information; that defendant furnished him proper forms for proof of loss, which he completed and returned; that thereafter defendant required plaintiff to be questioned under oath as authorized by the policy; that defendant by letter dated July 1, 1954, denied liability; that the conduct of defendant and its agents from the date of the fire until it denied liability was in pursuance of a plan to assure plaintiff that the loss would be paid and therefore amounted to a waiver of the limitation of one year contained in the policy within which an action could be commenced.

¶3 Plaintiff also alleged that defendant extended a written offer of settlement in January, 1955. To its motion to strike this allegation, the defendant attached the written offer wherein it plainly states that the offer was made for the sole purpose of compromise, and that defendant specifically reaffirmed its original denial of liability.

¶4 The trial court sustained the defendant's motion to strike the allegations of the petition concerning waiver of the limitation upon an action as contained in the policy as well as the allegation concerning the offer to compromise the claim. The court thereupon sustained the defendant's demurrer to the petition for the reason that the action was not commenced within one year from loss as was required by the limitation contained in the policy.

¶5 The plaintiff seeks to avoid the limitation upon commencing an action by relying upon the rule announced in Prudential Fire Ins. Co. v. Trave-Taylor Co., 194 Okl. 394, 152 P.2d 273. A casual examination of the principle announced in that case discloses its inapplicability to this action. In that case it was said:

"Where an insurer does not deny liability under a policy but requests time in which to have experts examine the property alleged to have been damaged * * * and consumes approximately the entire period in which institution of an action on the policy is required to be instituted, the insurer will be held to have waived the limitation provision * * *"

¶6 Here, the denial of liability occurred in less than four months following the fire loss; and the offer to compromise the claim was explicit in reaffirming the previous denial of liability and is of no assistance to the plaintiff in establishing a waiver even if properly pleaded, for it affirmatively appears that the offer was in response to an inquiry of plaintiff's attorney. Where negotiations have been broken off in sufficient time to enable the insured to commence the action within the limitation period, no waiver results. Prudential Fire Ins. Co. v. Trave-Taylor Co., supra.

¶7 Anticipating our conclusion on the foregoing proposition, the plaintiff also urges that the limitation contained in the policy is void. The insurance policy involved is the one set out in our statutes.

"An Act repealing

¶8 This statute is the one now appearing as

¶9 The judgment is affirmed.

¶10 The Court acknowledges the aid of the Supreme Court Commissioners in the preparation of this opinion. After a tentative opinion was written by the Commissioners, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.