Commonwealth Insurance Co. of New York v. O. Henry Tent & Awning Co.

184 F. Supp. 723, 1960 U.S. Dist. LEXIS 2871
CourtDistrict Court, N.D. Illinois
DecidedMay 27, 1960
DocketNo. 57 C 362
StatusPublished
Cited by2 cases

This text of 184 F. Supp. 723 (Commonwealth Insurance Co. of New York v. O. Henry Tent & Awning Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Insurance Co. of New York v. O. Henry Tent & Awning Co., 184 F. Supp. 723, 1960 U.S. Dist. LEXIS 2871 (N.D. Ill. 1960).

Opinion

PERRY, District Judge.

In this proceeding for a declaratory judgment, plaintiff insurance companies ask for a determination as to the extent of their liability to defendant on a fire loss under certain policies of insurance. Plaintiffs contended that defendant had not complied with the provisions of a “Value Reporting Clause” contained in each of the policies, and that their liability should not exceed the sum of $14,360.76. Defendant, however, counterclaimed for a larger sum.

Having heard and considered the evidence herein, the court finds the facts and states the conclusions of law as follows:

Findings of Fact

1. This is a proceeding for a declaratory judgment brought by plaintiff insurance companies, praying that this Court adjudge and decree that:

A. That the liability of The Commonwealth Insurance Company of New York under its policy of insurance No. 720562 to the defendant, 0. Henry Tent & Awning Company, is limited to and cannot exceed the sum of $2,154.11, that is 15% of the sum of $14,360.76;

B. That the liability of The Continental Insurance Company under its-[725]*725policy of insurance No. 42328 to the defendant, 0. Henry Tent & Awning Company, is limited to and cannot exceed the sum of $2,154.11, that is 15% of the sum of $14,360.76;

C. That the liability of the Milwaukee Insurance Company of Milwaukee, Wisconsin under its policy of insurance No. 98633 to the defendant, O. Henry Tent & Awning Company, is limited to •and cannot exceed the sum of $5,026.27, that is 35% of the sum of $14,360.76;

D. That the liability of the United States Fire Insurance Company under its policy of insurance No. 793365 to the defendant, O. Henry Tent & Awning Company, is limited to and cannot exceed the sum of $5,026.27, that is 35% of the sum of $14,360.76, and for such other and further relief as the Court may deem proper, and that plaintiffs may recover their costs.

2. That defendant, O. Henry Tent & Awning Company, a corporation of Illinois, has filed its counter-claim herein against the plaintiffs, praying judgment against the several plaintiffs in the amounts as follows:

A. The Commonwealth Insurance Company $ 4,828.24;

B. The Continental Insurance Company 4,828.24;

C. Milwaukee Insurance Company 11,265.90;

D. United States Fire Insurance Company 11,265.91;

Total $32,188.29,

and in addition thereto, interest on such sums of money for plaintiffs’ vexatious failure and refusal to pay defendant’s loss without reasonable cause, and costs and reasonable attorney’s fees as provided by statute.

3. Each of the plaintiffs is, and has been continuously since prior to the date of filing of this suit, a citizen of and incorporated in the State hereinafter set out after the name of each corporation, namely:

Plaintiff Citizen of and State of Incorporation

The Commonwealth Insurance Company of New York New York

The Continental Insurance Company New York

Milwaukee Insurance Company of Milwaukee, Wisconsin Wisconsin

United States Fire Insurance Company New York

4. 0. Henry Tent & Awning Company, a corporation, the defendant, is and has been continuously since prior to the date of filing of this suit, an Illinois corporation and citizen of Illinois.

5. The amount in controversy between each of the plaintiffs and the defendant herein is in excess of the sum of $3,000, exclusive of costs and interest.

6. From 1940 to the present date, defendant has been insured under policies of insurance containing a “Value Reporting Clause”. From 1940 through 1949 plaintiff, • The Continental Insurance Company, carried defendant’s entire risk at various locations under the foregoing type of fire insurance coverage; from 1949 through 1953 The Continental Insurance Company carried 50% of the risk; Milwaukee Insurance Company of Milwaukee, Wisconsin (formerly Milwaukee Mechanics Insurance Company), carried 25% of the risk; and plaintiff United States Fire Insurance Company [726]*726carried 25% of the risk. From 1953 through March 31, 1956 plaintiffs were the sole carriers on this particular type of fire insurance policy, the Value Reporting Policies, affording coverage to defendant at various locations.

7. On March 31, 1955, each of the plaintiffs issued to the defendant Illinois Standard Policy of Fire Insurance with Form No. Ill Ed. (June, 1953), “Multiple Location Reporting Form A, Monthly Average, With Premium Adjustment” attached thereto for a period of one year covering stock, materials and supplies owned by the defendant while located at 3222-24 North Halsted Street, Chicago, Illinois, with a total limit of liability in the sum of $50,000 as follows:

% of Limit of Policy No. Company Liability

720562 Commonwealth Insurance Company 15%

42328 Continental Insurance Company 15%

98633 Milwaukee Insurance Company 35%

793365 United States Fire Insurance Company 35%

8. That the policies of insurance involved herein and in effect on March 28, 1956 (the date on which defendant and counter-plaintiff suffered its fire loss), insured the following locations, the limits of liability under such policies being to wit:

Nos. 4862-4864 North Clark Street $120,000.00

Nos. 4852-4856 North Clark Street 20,000.00

Nos. 3222-3226 North Halsted Street 50,000.00

Chicago, Illinois - Total Insurance $190,000.00.

9. Each policy of insurance issued to defendant contained the following provision:

“Value Reporting Clause — It is a condition of this policy that the Insured shall report in writing to this Company not later than thirty (30) days after the last day of each calendar month, the exact location of all property covered hereunder, the total actual cash value of such property at each location and all specific insurance in force at each of such locations on the last day of each calendar month. At the time of any loss, if the Insured has failed to file with this Company reports of values as above required, this policy, subject otherwise to all its terms and conditions, shall cover only at the locations and for not more than the amounts included in the last report of values less the amount of specific . insurance reported, if any, filed prior to the loss, and further, if such delinquent report is the first report of values herein required to be filed, this policy shall cover only at the respective locations specifically named herein and for not exceeding 75% of the applicable limit of liability of this Company specified in the Limit of Liabilities Clause.”

The policies of insurance issued by the plaintiff companies for the policy period, insuring the defendant against the perils therein set forth, also contained a “Full Reporting Clause”, or sometimes known as the “Honesty Clause”. This cause is not concerned with such provision of the policy, in that the plaintiffs for their cause, of action rely solely upon the defendant’s alleged failure to comply with the “Value Reporting Clause”.

10. From and prior to 1940, Albert Swanson & Son was the sole insurance broker for the O. Henry Tent & Awning [727]

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Bluebook (online)
184 F. Supp. 723, 1960 U.S. Dist. LEXIS 2871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-insurance-co-of-new-york-v-o-henry-tent-awning-co-ilnd-1960.