Anderson v. Beneficial Fire and Casualty Company

Utah Supreme Court

Anderson v. Beneficial Fire and Casualty Company

442 P.2d 933, 21 Utah 2d 173, 1968 Utah LEXIS 614

CourtUtah Supreme Court

DecidedJune 20, 1968

Docket11067

StatusPublished

Cited by14 cases

This text of 442 P.2d 933 (Anderson v. Beneficial Fire and Casualty Company) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. Beneficial Fire and Casualty Company, 442 P.2d 933, 21 Utah 2d 173, 1968 Utah LEXIS 614 (Utah 1968).

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Opinions

HENRIOD, Justice:

Appeal from a summary judgment dismissing plaintiff’s complaint for recovery under an insurance policy, on the ground that plaintiff had not filed his suit within the time required under the terms of the policy. Affirmed with costs to defendant.

From use' of the discov'ery process under' the rules, employed by both sides, the facts appear as follows: On August 8, 1965, some of’ plaintiff’s equipment disappeared resulting in' a loss to plaintiff. Plaintiff orally notified his insurance salesman, thereof. The policy required written no-. tice, and the filing of proof of loss within 60 days. 'Neither of the provisions was honored, but proof of loss finally was supplied about six months later. At this juncture the defendant could have denied liability, but for some undisclosed reason it did not. The policy also had an arbitration clause, which was not followed. In addition, it had a provision that “No suit * * shall be sustainable * * * unless all the- requirements of this policy shall have, been complied with, and unless commenced within 12 months next after inception of, the loss,” — which language was crystal clear. On July 15, 1966, after plaintiff’s • failure to comply with other terms of the policy, — equally crystal clear, — and over three weeks prior to the 12-month deadline,: defendant rejected the -claim, based on- another provision of the policy that relieved., it from obligation if it appeared that the result of the loss was a sorcalled “inside. job.” This rejection put plaintiff on notice with ample time for him to invoke the limitations provision, anent filing a suit, of^ which he took no advantage. Up to that point there was-no genuine issue of fact.. On November 3, 1966, plaintiff filed this, suit, three months after the limitations pro-, vision in the policy. A defendant’s motion, for summary judgment was set for hearing on October 10, 1967, and on’the day ,of' that hearing, 'plaintiff walked in' with, a couple of affidavits, — one by Hanney, as[175]*175serting that he was agent for a local insurance agency which in turn was an agent for defendant insurer. All he said therein was that after defendant’s rejection of plaintiff’s claim, the latter called him, and that thereafter Hanney simply advised his immediate superior, the local agency, that if the defendant, Beneficial did not pay plaintiff’s claim, the latter would sue Beneficial, — suggesting that his employer resubmit the claim, — thafs all. At this juncture there was no genuine issue of fact to he tried, and there is nothing in the record to reflect that anyone paid a bit of attention to Hanney’s report or suggestion. Contrariwise, defendant, Beneficial, reaffirmed its previous rejection in October, 1967. At this point there was still no genuine issue of fact.

The second affidavit, by plaintiff Anderson, presented at the zero hour, besides being self-serving, was quite inconsistent with that walked in by Hanney, who not once in his affidavit said he assured Anderson that anybody said the matter would be considered again. At this intersection, there was no place to go except down the road traveled by those having no genuine issue as to its course, which could end nowhere except in the trial court’s cul de sac with its poster of “dismissal.”

It is most interesting and significant to note that the plaintiff’s only argument and the backbone of this appeal is epitomized by his brief’s statement that “The majority rule is the contractual period-within which time an action must be brought, commences to run at the time the right to sue accrues, irrespective of the date of loss.” For this ipse dixit, counsel cites Appleman, Insurance Law and Practice, ' Vol. 20A, Sec. 11611, copying verbatim the authorities in the footnote thereto, — 16 cases presumably supporting the above gratuity.

What Mr. Appleman actually said completely is antithetical thereto. What he did, say was: “Under particular policy wordings, it has been held that the contractual period of limitations commences to run at the time of loss or death. Similarly, the date of an accident resulting in death, and not the date of death, has been held to control.” (Emphasis supplied.)

CALLISTER and TUCKETT, JJ., concur.

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HENRIOD, Justice:

Appeal from a summary judgment dismissing plaintiff’s complaint for recovery under an insurance policy, on the ground that plaintiff had not filed his suit within the time required under the terms of the policy. Affirmed with costs to defendant.

From use' of the discov'ery process under' the rules, employed by both sides, the facts appear as follows: On August 8, 1965, some of’ plaintiff’s equipment disappeared resulting in' a loss to plaintiff. Plaintiff orally notified his insurance salesman, thereof. The policy required written no-. tice, and the filing of proof of loss within 60 days. 'Neither of the provisions was honored, but proof of loss finally was supplied about six months later. At this juncture the defendant could have denied liability, but for some undisclosed reason it did not. The policy also had an arbitration clause, which was not followed. In addition, it had a provision that “No suit * * shall be sustainable * * * unless all the- requirements of this policy shall have, been complied with, and unless commenced within 12 months next after inception of, the loss,” — which language was crystal clear. On July 15, 1966, after plaintiff’s • failure to comply with other terms of the policy, — equally crystal clear, — and over three weeks prior to the 12-month deadline,: defendant rejected the -claim, based on- another provision of the policy that relieved., it from obligation if it appeared that the result of the loss was a sorcalled “inside. job.” This rejection put plaintiff on notice with ample time for him to invoke the limitations provision, anent filing a suit, of^ which he took no advantage. Up to that point there was-no genuine issue of fact.. On November 3, 1966, plaintiff filed this, suit, three months after the limitations pro-, vision in the policy. A defendant’s motion, for summary judgment was set for hearing on October 10, 1967, and on’the day ,of' that hearing, 'plaintiff walked in' with, a couple of affidavits, — one by Hanney, as[175]*175serting that he was agent for a local insurance agency which in turn was an agent for defendant insurer. All he said therein was that after defendant’s rejection of plaintiff’s claim, the latter called him, and that thereafter Hanney simply advised his immediate superior, the local agency, that if the defendant, Beneficial did not pay plaintiff’s claim, the latter would sue Beneficial, — suggesting that his employer resubmit the claim, — thafs all. At this juncture there was no genuine issue of fact to he tried, and there is nothing in the record to reflect that anyone paid a bit of attention to Hanney’s report or suggestion. Contrariwise, defendant, Beneficial, reaffirmed its previous rejection in October, 1967. At this point there was still no genuine issue of fact.

The second affidavit, by plaintiff Anderson, presented at the zero hour, besides being self-serving, was quite inconsistent with that walked in by Hanney, who not once in his affidavit said he assured Anderson that anybody said the matter would be considered again. At this intersection, there was no place to go except down the road traveled by those having no genuine issue as to its course, which could end nowhere except in the trial court’s cul de sac with its poster of “dismissal.”

It is most interesting and significant to note that the plaintiff’s only argument and the backbone of this appeal is epitomized by his brief’s statement that “The majority rule is the contractual period-within which time an action must be brought, commences to run at the time the right to sue accrues, irrespective of the date of loss.” For this ipse dixit, counsel cites Appleman, Insurance Law and Practice, ' Vol. 20A, Sec. 11611, copying verbatim the authorities in the footnote thereto, — 16 cases presumably supporting the above gratuity.

What Mr. Appleman actually said completely is antithetical thereto. What he did, say was: “Under particular policy wordings, it has been held that the contractual period of limitations commences to run at the time of loss or death. Similarly, the date of an accident resulting in death, and not the date of death, has been held to control.” (Emphasis supplied.)

CALLISTER and TUCKETT, JJ., concur.

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442 P.2d 933, 21 Utah 2d 173, 1968 Utah LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-beneficial-fire-and-casualty-company-utah-1968.

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