Ditch v. Yorktowne Mutual Insurance

43 Pa. D. & C.3d 96, 1983 Pa. Dist. & Cnty. Dec. LEXIS 2
CourtPennsylvania Court of Common Pleas, Elk County
DecidedDecember 23, 1983
Docketno. 83-14
StatusPublished

This text of 43 Pa. D. & C.3d 96 (Ditch v. Yorktowne Mutual Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Elk County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ditch v. Yorktowne Mutual Insurance, 43 Pa. D. & C.3d 96, 1983 Pa. Dist. & Cnty. Dec. LEXIS 2 (Pa. Super. Ct. 1983).

Opinion

GREINER, P.J.,

— Both plaintiffs and defendant move for summary judgment on uncontradicted facts relating to plaintiffs’ claim under their homeowners’ policy with defendant because of partial destruction of their residence by fire. The sole legal issue is the interpretation and application of the loss-settlement provisions on page 7, paragraph 3c of the policy.

FACTS

1. Plaintiffs, husband and wife, are owners of a property known and numbered as 504 Rock Street, Ridgway, Elk County, Pa.

2. Defendant issued a homeowners’ policy, Number H092958 to plaintiffs for insuring the property which they own and in which they live. The effective date of the insurance policy was March 25, 1981, through March 25, 1984.

3. The insurance policy was in full force and effect on November 17, 1982, when the property was partially damaged by fire.

4. The policy specifically provides that plaintiffs must insure the dwelling for no less than 80 percent [97]*97of its replacement cost, which clause is referred to as a “co-insurance clause.”

5. The replacement of the property insured with equivalent construction and use on the same premises is $63,261.

6. The amount of insurance placed upon the premises was $25,000 as shown on the insurance policy.

7. Plaintiffs did incur incidental expenses in the amount of $1,551.89.

8. The cost of repairing the damage paused by the fire on November 17, 1982, is $10,915.59.

9. Defendant offered to pay to plaintiffs the sum of $1,551.89 for incidental expenses relating to the fire.

10. Maintaining that plaintiffs had under insured the property by failing to carry insurance in the amount of $50,608.80, 80 percent of the replacement cost as required by the policy, at the close of pleadings, defendant moves the court for summary judgment in the sum of $6,944.19, being $1,551.89 for incidental expenses and $5,393.30, the latter being 49.4 percent of the agreed repair costs of $10,915.59.

11. Plaintiffs, at the close of pleadings, moved the court for summary judgment in the sum of $12,467.48, being $1,551.89 incidental loss, and the total amount of $10,915.59 for the full cost of repairs.

DISCUSSION

The policy provides in paragraph 3c(2) on page 7:

“If at the time of the loss the amount of insurance in this policy on the damaged building is less than eighty percent of the full replacement cost of the building immediately prior to the loss, we will pay the larger of the following amounts, but not exceed[98]*98ing the limit of liability under this policy applying to the building:

(a) The actual cash value of that part of the building damaged; or

(b) That proportion of. the cost to repair or replace; without deduction for depreciation, of that' part of the building damaged, which the total amount of insurance in this policy on the damaged building bears to 80 percent of the replacement cost of the building.”

Plaintiffs assert that the “full replacement cost of the building immediately prior to the loss” is not limited to replacement by new construction and that the full replacement cost of their building, 504 Rock Street, Borough of Ridgway, Elk County, Pa., is less than $30,000 ($31,250 being the total full replacement cost considering $25,000 to be 80 percent) if they are allowed to replace their property by purchasing an identical property. In support of their position plaintiffs attached to their complaint as Exhibit D a list of comparable properties transferred during the period of January 1980 — May 1982, ranging in sale price of $14,000-$29,000. These included premises at 524 Rock Street, sold for $14,000, 336 Rock Street, sold for $23,000, and 332 Rock Street, sold for $17,500, all within two years of the date of the loss in question. Plaintiffs also rely upon the general rule of construction that any ambiguities in the policy must be resolved in favor of the policy holder, defendant being the author of its terms. To the contrary, defendant urges upon the court the construction of the policy language most beneficial to defendant but least beneficial to plaintiffs.

The subject property as well as the aforementioned three properties on Rock Street present values as could fairly be contemplated by plaintiffs [99]*99when setting the amount of insurance to be purchased on their premises. The property at 524 Rock Street, Ridgway, Pa., is very near the subject premises and is identical in construction. Referring to the 524 Rock Street sale from Johnson to Carson in 1981 for the sum of $14,000 plaintiffs argue that to accept defendant’s position it would then have been necessary for Carson, at the time of purchase or immediately thereafter, to insure the property as to the budding above the ground only for in excess of $63,000. Plaintiffs further contend that what this really means is that defendant wishes to collect insurance premiums on $63,000 on the premises in question, only worth $14,000 including land and outbuildings; that defendant’s interpretation is merely a device to collect premiums in excess of those justified by the facts; that defendant suggests an interpretation that could not have possibly been in the contemplation of plaintiffs at the time plaintiffs purchased the premises or purchased the insurance in'question; that defendant would impose upon plaintiffs the duty of day-to-day reappraisal of plaintiffs’ home as to the cost of rebuilding with new materials a premises constructed around the turn of the last century when plaintiffs could not intend to rebuild a new home, and the penalty defendant wished to impose upon plaintiffs is that plaintiffs must bear a greater risk than defendant in the event of any partial loss, the cost of which is less than the policy limits.

We find plaintiffs’ argument in support of their position very persuasive, and therefore further detailed review follows. Plaintiffs reason that:

Insurance is simply the risk business. It is á regulated industry in the Commonwealth of Pennsylvania. If defendant’s interpretation is accepted then defendant has succeeded in raising its markets by [100]*100as much as four times the value of what the market truly is. What was defendant’s risk in this case? If the property is properly insured defendant pays the smallest of one of three amounts. First, defendant will pay nothing in excess of the limit of liability under the policy. In other words, and using round figures throughout, if plaintiffs insured the premises for $50,000 and the full replacement costs without deduction for depreciation was $63,000, defendant would be fiable for $50,000 if: (1) The replacement cost of that part of the building damaged for equivalent construction and use on the same premises is $50,000 or more; and (2) Plaintiffs actually and necessarily spent $50,000 or more to repair or replace the damaged building. (See policy, page 7, paragraph 3c(l)).

Policy page 2, paragraph 3c(4) provides:

“When the cost to repair or replace the damage is more than $1000 or more than 5 percent of the amount of insurance in this policy on the building, which ever is less, we will pay no more than the actual cash value of the damage until actual repair or replacement in completed. ”

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Related

Farber v. Perkiomen Mutual Insurance
88 A.2d 776 (Supreme Court of Pennsylvania, 1952)
Fedas v. Insurance Co. of Pennsylvania
151 A. 285 (Supreme Court of Pennsylvania, 1930)
Miller v. the Home Ins. Co.
164 A. 819 (Superior Court of Pennsylvania, 1932)
Reese v. Northern Insurance
215 A.2d 266 (Superior Court of Pennsylvania, 1965)
Birmingham Fire Insurance v. Pulver
18 N.E. 804 (Illinois Supreme Court, 1888)

Cite This Page — Counsel Stack

Bluebook (online)
43 Pa. D. & C.3d 96, 1983 Pa. Dist. & Cnty. Dec. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ditch-v-yorktowne-mutual-insurance-pactcomplelk-1983.